b"Applicability of Control of Paperwork Amendments of 1978 to\nCertain Activities of the Civil Rights Division\nC ontrol o f Paperw ork A m endm ents o f 1978, w hich impose restrictions on federal agen\xc2\xad\ncies\xe2\x80\x99 collection o f data from educational institutions, do not apply to collection o f data\nby the D epartm ent o f Justice in connection with school desegregation litigation.\n\nFebruary 6, 1980\nM EM ORANDUM OPIN IO N FOR TH E ASSISTANT ATTORNEY\nG EN ER A L, CIV IL RIGHTS DIVISION\nThis responds to your request for an opinion on the applicability of\nthe Control of Paperwork Amendments of 1978, 20 U.S.C. \xc2\xa7 1221-3\n(Amendments), to your Division\xe2\x80\x99s collection of information from edu\xc2\xad\ncational institutions in connection with the litigation of school desegre\xc2\xad\ngation cases. More specifically, you ask whether your division\xe2\x80\x99s litiga\xc2\xad\ntion of school desegregation cases is a \xe2\x80\x9cfederal education program\xe2\x80\x9d\nunder the Amendments. You identified the following three categories\nof information-collecting activities conducted by your Division in con\xc2\xad\nnection with such cases:\n(1)\n(2)\n\n(3)\n\nFormal discovery requests in active school desegregation\ncases;\nCollection of information from defendants in inactive school\ndesegregation cases to determine whether the cases should\nbe dismissed; and\nCollection of information from educational institutions for\nthe purpose of determining whether litigation should be\ninitiated.\n\nBecause your Division conducts all of the above activities in connec\xc2\xad\ntion with your litigating responsibilities and compliance with the\nAmendments\xe2\x80\x99 restrictions would interfere with the enforcement of fed\xc2\xad\neral antidiscrimination statutes, we conclude that the Amendments do\nnot apply to such activities. For that reason, any regulations promul\xc2\xad\ngated to implement the Amendments similarly would not apply to those\nactivities.\nThe Control of Paperwork Amendments of 1978 were enacted to\ncoordinate the collection of data from educational institutions by fed\xc2\xad\neral agencies \xe2\x80\x9c[i]n order to eliminate excessive detail and unnecessary\n372\n\n\x0cand redundant information requests and to achieve the collection of\ninformation in the most efficient and effective possible manner. . .\n20 U.S.C. \xc2\xa7 1221-3(a)(1)(A). Under the statute, the Secretary of Educa\xc2\xad\ntion 1 must approve requests by federal agencies for data and informa\xc2\xad\ntion directed to educational institutions. Each agency is required to\nsubmit to the Secretary a plan for each collection of information indi\xc2\xad\ncating how the information will be used, the methods of analysis that\nwill be applied to such data, a timetable for the dissemination of the\ncollected data and an estimate of the costs and man-hours that will be\nincurred by each educational institution in completing the request and\nby the federal agency in collecting, processing, and analyzing the infor\xc2\xad\nmation. 20 U.S.C. \xc2\xa7 1221\xe2\x80\x943(b)(1). The Secretary is required to ensure\nthat each request has been approved and publicly announced by the\n15th of February preceding the beginning of a new school year, unless\nthere is an urgent need for the information or very unusual circum\xc2\xad\nstances. 20 U.S.C. \xc2\xa7 1221-3(b)(2)(A). Prior to approval, each educa\xc2\xad\ntional agency subject to a request is afforded a 30-day period to com\xc2\xad\nment to the Secretary on the information request. 20 U.S.C. \xc2\xa7 1221 \xe2\x80\x94\n3(b)(3).\nThe Amendments set forth two conditions for its applicability to\ninformation requests by federal agencies:\n(1)\n(2)\n\nThe respondents must be primarily educational agencies or\ninstitutions; and\nThe purpose of a federal agency\xe2\x80\x99s activities must be to\nobtain information needed for the management of, or the\nformulation of,.policy related to federal education programs\nor research or evaluation studies related to the implementa\xc2\xad\ntion of federal education programs. 20 U.S.C. \xc2\xa7 1221 \xe2\x80\x94\n3(a)(1)(A).\n\nBecause your information-collection activities are directed at educa\xc2\xad\ntional institutions, the first condition is satisfied and the applicability of\nthe Amendments depends, therefore, upon whether your activities meet\nthe second condition. For two reasons, we conclude that they do not.\nFirst, the information you collect is needed to decide whether to\ninitiate, maintain, or discontinue litigation, not to manage or formulate\npolicy or to conduct research or evaluation studies. Moreover, even if a\ndecision to initiate or discontinue litigation could be viewed as formu\xc2\xad\nlating policy, we believe that your litigating activities are not \xe2\x80\x9cfederal\neducation programs\xe2\x80\x9d for the purpose of the Amendments. It is true that\na construction of the Amendments must be guided by the Conference\nReport\xe2\x80\x99s direction that they are \xe2\x80\x9cto be interpreted broadly so as to\n1\nT he A ct originally required the Secretary o f H ealth, Education and W elfare to approve such\nrequests. H ow ever, under the D epartm ent o f E ducation O rganization A ct, Pub. L. No. 96-88,\n\xc2\xa7 301(a)(2)(D), 93 Stat. 677 (1979), this function was transferred to the Secretary o f Education.\n\n373\n\n\x0cinclude as many activities as possible.\xe2\x80\x9d H.R. Rep. No. 1753, 95th Cong.,\n2d Sess., 313 (1978). But a construction that would include school\ndesegregation litigation as a \xe2\x80\x9cfederal education program\xe2\x80\x9d would strain\nthe meaning of that term far beyond common understanding of what\nconstitutes an education program. Nothing in the legislative history of\nthe Amendments warrants such a construction. Moreover, the Amend\xc2\xad\nments explicitly provide:\nNothing in this section [20 U.S.C. \xc2\xa7 1221-3] shall be con. strued to interfere with the enforcement of the provisions\nof the Civil Rights Act of 1964 or any other nondiscrim\xc2\xad\nination provision of Federal law.\n20 U.S.C. \xc2\xa7 1221\xe2\x80\x943(b)(6). In our view, this provision 2 militates against\nregarding your litigating activities as education programs. If the\nAmendments were construed to cover such activities, your Division\nwould have to comply with their restrictions on information requests\neach time you requested information from each school defendant or\ntarget of investigation. Compliance with the Amendments\xe2\x80\x99 comment\nperiod and public announcement requirement when litigating a case or\ndeciding to institute or discontinue litigation would undoubtedly sub\xc2\xad\nstantially interfere with the expeditious enforcement of federal nondis\xc2\xad\ncrimination laws.\nFor these reasons we conclude that the term \xe2\x80\x9cfederal education\nprogram\xe2\x80\x9d is not to be construed to encompass the information collec\xc2\xad\ntion activities involved here. Accordingly, the definition of \xe2\x80\x9cfederal\neducation program\xe2\x80\x9d in the interim procedures 3 promulgated by the\nDepartment of Health, Education, and Welfare under the Act is not to\nbe construed to encompass such activities.\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n2 T h e legislative history o f the A m endm ents contains no discussion o f this provision, w hich was\nincluded in both the H ouse and Senate bills. H .R . Rep. No. 1137, 95th C ong., 2d Sess. 134-38, 177\n(1978); S. Rep. N o. 856, 95th C ong., 2d Sess. 5, 112-16, 158-59 (1978); H. Conf. Rep. No. 1753, 95th\nC ong., 2d Sess. 313-15 (1978). T h e provision appears to have its origin in the E ducation A m endm ents\no f 1976, \xc2\xa74 0 6 , 90 Stat. 2231, w h ich restricted only the E ducation D ivision and the O ffice o f Civil\nR ights in the D epartm ent o f H ealth, E ducation and W elfare in their collection o f inform ation. T he\nrestrictions along w ith th e proviso w ere added on the floor o f the Senate, 122 C ong. Rec. 2801728020 (1976), and survived the C onference. H. Conf. Rep. No. 1701, 94th C ong., 2d Sess. 242 (1976).\n3 T h e interim p ro ced u res define \xe2\x80\x9c Federal E ducation P ro g ram \xe2\x80\x99* as \xe2\x80\x9c any Federal activity w ith a\nprim ary purpose o f offering instruction, financing instruction, o r affecting an educational agency's or\ninstitution\xe2\x80\x99s ability to offer instruction o r provide access to e d ucation.\xe2\x80\x9d 44 Fed. R eg. 46535, 46538\n(1979).\n\n374\n\n\x0c"


b"Use of the National Guard to Support Drug\nInterdiction Efforts in the District of Columbia\nUse of the District of Columbia National Guard, in its militia status, to support local drug\nlaw enforcement efforts is not prohibited by the Posse Comitatus Act.\nThe activity may receive funding from the Secretary of Defense under section 1105 of the\nDefense Authorization Act if the President, as Commander-in-Chief of the District of\nColumbia National Guard, requests such financial assistance.\nExecutive Order 11485 assigns the Attorney General the responsibility of establishing, in\nconsultation with the Secretary of Defense, the law enforcement policies to be observed\nby the National Guard in these circumstances, but it does not assign the Attorney\nGeneral any responsibility with respect to the policy decision of whether the National\nGuard should be assigned to the described use or any supervision and control responsi\xc2\xad\nbility for the implementation of such a decision\n\nApril 4, 1989\nM emorandum O pinion\n\nfor the\n\nA cting A ssociate A ttorney G eneral\n\nThis memorandum responds to the request of your Office1for our opin\xc2\xad\nion with respect to the use of the District of Columbia National Guard\n(\xe2\x80\x9cNational Guard\xe2\x80\x9d), in its militia status (i.e., not in federal service), to\nsupport the drug law enforcement efforts of the District of Columbia\nMetropolitan Police.2 You have raised the following specific questions:\n(1) Is this use of the National Guard prohibited under the Posse\nComitatus Act? (2) May the Secretary of Defense provide funds to sup\xc2\xad\nport the use, pursuant to section 1105 of the National Defense\nAuthorization Act, Fiscal Year 1989 (\xe2\x80\x9cDefense Authorization Act\xe2\x80\x9d)? (3)\n1 Memorandum to Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, from\nMargaret C Love, Deputy Associate Attorney Genera], Re Use o f the National Guai'd to Support Di'ug\nInterdiction Efforts in the D istrict o f Columbia (Mar 21, 1989), as supplemented by Memorandum to\nDouglas W Kmiec, Assistant Attorney General, Office of Legal Counsel, from Margaret C. Love, Deputy\nAssociate Attorney General, Re* Use o f the National Guard to Support Drug Intei'diction Efforts in the\nD istrict o f Columbia (Mar. 23, 1989)\n2 We have been informed by the Department of Defense that \xe2\x80\x9c[tjhe D C. National Guard, like the State\nand Terntonal National Guards, may normally be called into federal service for civil law enforcement\npurposes only pursuant to 10 U S C. \xc2\xa7\xc2\xa7 3500, 8500, 331, 332 or 333. The D.C. National Guard plan, cur\xc2\xad\nrently under review by the Department of Justice, does not propose to call the D C. National Guard into\nfederal service \xe2\x80\x9d Letter to John O McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel,\nfrom Robert L Gilliat, Assistant General Counsel (Personnel & Health Policy), Department of Defense\n(Mar 31, 1989).\n91\n\n\x0cWhat are the Attorney General\xe2\x80\x99s responsibilities in these circumstances\nunder section 2 of Executive Order 11485?\nAs discussed below, we have concluded that the described use of the\nDistrict of Columbia National Guard is not prohibited by the Posse\nComitatus Act because that Act does not apply to a National Guard act\xc2\xad\ning as a militia and because, even if that Act did so apply, the use has been\nauthorized by an Act of Congress. Congress has authorized the use in sec\xc2\xad\ntions 39-104 and 39-602 of the D.C. Code. The activity may receive fund\xc2\xad\ning from the Secretary of Defense under section 1105 of the Defense\nAuthorization Act if the President, as Commander-in-Chief of the District\nof Columbia National Guard, requests such financial assistance.3 Finally,\nExecutive Order 11485 assigns the Attorney General the responsibility of\nestablishing, in consultation with the Secretary of Defense, the law\nenforcement policies to be observed by the National Guard in these cir\xc2\xad\ncumstances, but it does not assign the Attorney General any responsibil\xc2\xad\nity with respect to the policy decision of whether the National Guard\nshould be assigned to the described use or any supervision and control\nresponsibility for the implementation of such a decision.\nDiscussion\n\n1. Posse Comitatus Act\nApplication of the Posse Comitatus Act to a National Guard depends on\nwhether that National Guard is acting in its status as militia for the partic\xc2\xad\nular State or territory or the District of Columbia, or rather has been called\ninto federal service by the President. Under the Posse Comitatus Act, the\nuse of the Army or the Air Force to execute the laws is prohibited \xe2\x80\x9cexcept\nin cases and under circumstances expressly authorized by the Constitution\nor Act of Congress.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 1385. Since by its terms the Posse\nComitatus Act applies only to the use of the Army or the Air Force, it\napplies to a National Guard only when it has been put into federal service\nas part of the Army or Air Force.4 Since the described use for the District\nof Columbia National Guard would be for it in its militia rather than feder\xc2\xad\nal service capacity, it is not prohibited by the Posse Comitatus Act.\n3 For purposes of this provision authorizing financial assistance to National Guards in their militia\ncapacity upon the request of State Governors, the President stands in the position of a Governor\n4This Department has long recognized that the Posse Comitatus Act does not apply to a National Guard\nin its militia status See, eg., Letter for Charles J Zwick, Director, Bureau of the Budget, from Warren\nChristopher, Deputy Attorney General at 2 (June 4,1968) (stating, in the context of supporting use of the\nDistrict of Columbia National Guard in rrulitia status rather than federal status to control civil disturb\xc2\xad\nances, that \xe2\x80\x9cthe Posse Comitatus Act ... prohibits placing federalized Guardsmen at the disposal of\ncivilian law-enforcement officers to assist the latter in executing the laws\xe2\x80\x9d) (emphasis added). That the\nPosse Comitatus Act is limited in this way is also recognized in Congress See, e.g., National Defense\nAuthorization Act Conference Report, H.R. Conf. Rep. No. 753,100th Cong., 2d Sess 453 (1988) (\xe2\x80\x9cWhen\nnot in federal service, the National Guard is not subject to the Posse Comitatus Act.\xe2\x80\x9d).\n92\n\n\x0cMoreover, even if the Posse Comitatus Act applied to the described\nuse, it would not prohibit the use because it is authorized by an Act of\nCongress: Act of March 1, 1889, ch. 328, 25 Stat. 772, which enacted the\nD.C. Code. Section 39-602 of the D.C. Code authorizes the Commanding\nGeneral of the National Guard to \xe2\x80\x9corder out any portion of the National\nGuard for such drills, inspections, parades, escort, or other duties, as he\nmay deem proper.\xe2\x80\x9d The authorization to order out the Guard for \xe2\x80\x9cother\nduties, as he may deem proper\xe2\x80\x9d has long been viewed as broad enough to\ninclude law enforcement activities.5 In 1963, for example, this Office\ninterpreted section 39-602 to authorize\nthe President to request or urge the commanding general to\nuse the National Guard in support of activities of the District\nof Columbia police whenever he feels that the welfare, safe\xc2\xad\nty, or interest of the public would be served thereby.\nSchlei Opinion, at 3. This natural reading of section 39-602 is especially\nappropriate in light of section 39-104 of the Code, which makes it clear\nthat the National Guard, acting as militia, may be \xe2\x80\x9ccalled ... to aid the civil\nauthorities in the execution of the laws.\xe2\x80\x9d Relying on section 39-602, the\nNational Guard has been used in its militia capacity to support law\nenforcement activities of the District of Columbia Metropolitan Police,\nboth in the course of presidential inaugurations and in the case of large\ndemonstrations. See, e.g., Letter for Michael P.W. Stone, Under Secretary\nof the Army, from Harold G. Christensen, Deputy Attorney General (Jan.\n13, 1989) (1989 inauguration), and letters cited therein (prior inaugura\xc2\xad\ntions); Memorandum for the Deputy Attorney General, from Mary C.\nLawton, Deputy Assistant Attorney General, Office of Legal Counsel, Re:\nLaw Relating to Civil Disturbances at 5-6 (Jan. 6, 1975) (\xe2\x80\x9cLawton\nOpinion\xe2\x80\x9d) (demonstrations).6\n6 See, eg , Memorandum for the Assistant Attorney General, Civil Division, from Norbert A. Schlei,\nAssistant Attorney General, Office of Legal Counsel, Re- Authonty to use the National Guard o f the\nDistinct of Columbia to supplement civilian police foixe activities during a massive demonstration\nor parade in the D is tiict o f Columbia\n\nat 2 (July 30,1963) (\xe2\x80\x9cSchlei Opinion\xe2\x80\x9d) (section 39-602\xe2\x80\x99s \xe2\x80\x9c language\nis broad enough to be construed as authonzing the commanding general to use the National Guard to\nsupport activities of the civilian police force during any massive demonstration or parade in the\nDistrict\xe2\x80\x9d), Memorandum for the Assistant Attorney General, Civil Division, from Norbert A. Schlei,\nAssistant Attorney General, Office of Legal Counsel, Re- Memorandum concerning the amenability o f\n\nmembers of the National Guard o f the District o f Columbia to courts-martial or othei' disciplinary\naction fo r failure to participate in form ations ordered pursuant to Section 44 o f the A ct o f March 1,\n1889\n\nat 2 (Aug. 9, 1963) (\xe2\x80\x9c[T]he term \xe2\x80\x98other duties\xe2\x80\x99 can be reasonably interpreted as including activities\nin aid of civil authorities \xe2\x80\x9d)\n6 Although there is adequate statutory authority in this case, and we therefore need not reach the ques\xc2\xad\ntion, since the President is Commander-in-Chief of the District of Columbia National Guard in its militia\nstatus (D.C. Code \xc2\xa7 39-109), and since the D.C. Code is federal law, this use of the National Guard might\nalso be supported on the basis of the President\xe2\x80\x99s inherent constitutional authonty to use any forces at his\ncommand to carry out the laws. See In Re Neagle, 135 U.S 1 (1890).\n93\n\n\x0c2. Funding Authority under the Defense Authorization Act\nSection 1105(a)(1) of the Defense Authorization Act authorizes\nthe Secretary of Defense to provide to the Governor of a\nState who submits a plan to the Secretary under paragraph\n(2) sufficient funds for the pay, allowances, clothing, sub\xc2\xad\nsistence, gratuities, travel, and related expenses of person\xc2\xad\nnel of the National Guard of such State used \xe2\x80\x94 (A) for the\npurpose of drug interdiction and enforcement operations;\nand (B) for the operation and maintenance of the equip\xc2\xad\nment and facilities of the National Guard of such State used\nfor such purposes.\nPub. L. No. 100-456, 102 Stat. 2047 (1988). Since the described use of the\nDistrict of Columbia National Guard is for drug law enforcement purpos\xc2\xad\nes, the Defense Authorization Act would thus clearly authorize federal\nfunding for the use if that National Guard is eligible for the funding to the\nsame extent as Eire State National Guards. For the reasons set forth\nbelow, we believe that it is.\n\xe2\x80\x9cThe President of the United States shall be the Commander-in-Chief of\nthe militia of the District of Columbia.\xe2\x80\x9d D.C. Code \xc2\xa7 39-109. This Office\nhas consistently taken the position that \xe2\x80\x9cthe President... stands in a rela\xc2\xad\ntion to the D.C. National Guard that is similar to the relation obtaining\nbetween the Governors of the several States and their respective State\nNational Guard units.\xe2\x80\x9d7 Thus, we believe it is reasonable to interpret sec\xc2\xad\ntion 1105 of the Defense Authorization Act to authorize the President to\nrequest financial support for the District of Columbia National Guard to\nthe same extent as Governors may request such support for their State\nNational Guards.\nNot only may section 1105 be interpreted to equate the President with\na Governor, it may also be interpreted to equate the District of Columbia\nwith a State for purposes of this statute. \xe2\x80\x9cThis Office has consistently\ntaken the position that the District is a State within the meaning of chap\xc2\xad\nter 15 of Title 10 [which authorizes federalizing the National Guards or\nusing the armed forces to aid State governments or enforce federal\nauthority], even though not so defined ....\xe2\x80\x9d Lawton Opinion, at 5. The\nrationale for thus treating the District of Columbia as a State in the\nNational Guard context was explained with reference to the President\n7 Memorandum for Warren Christopher, Deputy Attorney General, from Martin F. Richman, First\nAssistant, Office of Legal Counsel, Re. Use of D C. National Guardsmen to Aid in Policing Anti-War\nDemonstrations in the D istrict of Columbia and at the Pentagon at 2 (Oct 13, 1967) (\xe2\x80\x9cRichman\nOpinion\xe2\x80\x9d). See also Schlei Opinion, at 3 (\xe2\x80\x9c[T]he President performs the same function with respect to the\nDistrict of Columbia National Guard as the Governors of the several States serve with respect to their\nrespective State organizations.\xe2\x80\x9d).\n94\n\n\x0ccalling the National Guard for the District into federal service under 10\nU.S.C. \xc2\xa7 332. Relying on Geofroy v. Riggs, 133 U.S. 258 (1890), the Office\nreasoned as follows:\nThe District of Columbia is not considered as being a\n\xe2\x80\x9cState\xe2\x80\x9d in the Constitutional sense.8 However, the District\nhas been held to be a State for purposes of a treaty which\naccorded to certain aliens the right to hold property in all\n\xe2\x80\x9cStates\xe2\x80\x9d of the Union. The Supreme Court adopted this con\xc2\xad\nstruction [in Geofroy] because of the unreasonable result\nthat would have followed if a distinction had been drawn\nbetween the District and the States for purposes of the\ntreaty. Similarly, if an Act of Congress generally applies in\nevery \xe2\x80\x9cState\xe2\x80\x9d without reference to the Constitutional limita\xc2\xad\ntions of this term, and if a reasonable construction requires\nthat the District be considered as on the same footing with\nall the States for purposes of the Act, the Court\xe2\x80\x99s opinion in\nthe Geofroy case indicates that the District would be held to\nbe a \xe2\x80\x9cState\xe2\x80\x9d for those purposes.\nThe evident purpose of 10 U.S.C. 332 is to enable the\nPresident to use Federal troops, if necessary, \xe2\x80\x9cto enforce the\nlaws of the United States\xe2\x80\x9d in any part of the country where\ntheir execution is obstructed. By any reasonable interpreta\xc2\xad\ntion of this provision, its protective reach must be regarded\nas extending to the District of Columbia, where all the laws\nare laws of the United States. It is therefore concluded that\nthe reference in section 332 to disturbances \xe2\x80\x9cin any State\xe2\x80\x9d\nwould include disturbances in the District of Columbia.\nRichman Opinion, at 3-5 (citations and footnotes omitted). This reason\xc2\xad\ning supporting the conclusion that the District of Columbia should be\nviewed as a \xe2\x80\x9cState\xe2\x80\x9d for purposes of the statute authorizing the domestic\nuse of the armed forces also supports the conclusion that the District be\nviewed as a State for purposes of section 1105 of the Defense\nAuthorization Act.\nIn the terms of the Richman Opinion, \xe2\x80\x9ca reasonable construction [of\nsection 1105] requires that the District be considered as on the same foot\xc2\xad\ning with all the States for purposes of the [section].\xe2\x80\x9d Id. at 4.9 It is rea\xc2\xad\n8 Nor, absent constitutional amendment, could it be. Letter for James C Miller, III, Director, Office of\nManagement and Budget, from John R Bolton, Assistant Attorney General, Office of Legislative Affairs,\nat 2-4 (Apr. 8, 1987).\n9 Even in the absence of the Richman Opinion, we would be inclined to conclude that the District of\nColumbia should be treated as a State for purposes of section 1105 The rule of construction in Geofroy\nContinued\n95\n\n\x0csonable to read section 1105 to be authorizing assistance to all National\nGuards in their militia status, including the National Guard for the\nDistrict of Columbia. As is evident from its title, the general purpose of\nthe section was an \xe2\x80\x9cenhanced drug interdiction and enforcement role for\nthe National Guard.\xe2\x80\x9d 102 Stat. 2047. Nothing in the section or its legisla\xc2\xad\ntive history indicates that the National Guard of the District of Columbia\nwas intended to be excluded. Indeed, the conferees who agreed to this\nsection stated their \xe2\x80\x9cintent... that priority be given to those plans which\n(a) involve areas of the greatest need in terms of drug interdiction and (b)\nare most likely to be effective.\xe2\x80\x9d H.R. Conf. Rep. No. 753, 100th Cong., 2d\nSess. 453 (1988). The decision to use the National Guard in the District of\nColumbia would certainly appear to represent a determination that the\nDistrict is such a high priority area.\nAccordingly, we conclude that, as Commander-in-Chief of the National\nGuard for the District of Columbia in its militia status, the President\nstands in the position of a Governor of a State and, pursuant to section\n1105 of the Defense Authorization Act, may request funding by the\nSecretary of Defense by submitting a plan for the use of the National\nGuard to assist the drug law enforcement activities of the District of\nColumbia Metropolitan Police.10\n3. Attorney General Responsibility under Executive Order 11485\nSection 2 of Executive Order 11485 (\xe2\x80\x9cSupervision and Control of the\nNational Guard of the District of Columbia\xe2\x80\x9d), October 1, 1969, 3 C.F.R.\n814, (1966-1970), provides that\nThe Attorney General is responsible for: (1) advising the\nPresident with respect to the alternatives available pursuant\nto law for the use of the National Guard to aid the civil\nauthorities of the District of Columbia; and (2) for estab\xc2\xad\nlishing after consultation with the Secretary of Defense law\nenforcement policies to be observed by the military forces\nin the event the National Guard is used in its militia status to\naid civil authorities of the District of Columbia.\nWhile it is evident that clause (1) of section 2 does no more than reiter\xc2\xad\nate in this specific context the Attorney General\xe2\x80\x99s established authority as\n9 ( . continued)\nis a venerable one and Congress may be presumed to have notice of it. Accordingly, in light of the fact\nthat there is no evident congressional intent to exclude the Distnct from the ambit of section 1105, we\nbelieve Congress must have understood that the District would be included within that section\n10We understand that the Mayor of the District of Columbia has submitted such a plan. However, since\nunder our interpretation of section 1105 it is the President who must request financial assistance and\nsubmit a plan, the President\xe2\x80\x99s plan may, but need not, be based on the plan submitted by the Mayor.\n96\n\n\x0clegal advisor to the President, you have asked for our interpretation of\nthe authority being given the Attorney General under clause (2).\nBy its express terms the Executive Order provides that it is the\nAttorney General who has the responsibility for establishing the law\nenforcement policies that the National Guard must abide by when it is\nused in its militia capacity to aid the civil authorities of the District of\nColumbia. The Attorney General must consult with the Secretary of\nDefense concerning what those policies should be, but it is clearly the\nAttorney General who is to determine the policies. Thus, while the Order\ndoes not assign any responsibility to the Attorney General with respect to\ndeciding the policy question of whether the National Guard is to be used\nto assist the District\xe2\x80\x99s civil authorities, once that decision has been made,\nthe Attorney General has the authority to establish the governing law\nenforcement policies. Moreover, while we believe it is reasonable to infer\nfrom the Order that the Attorney General has authority to monitor the use\nof the National Guard in these circumstances in order to determine\nwhether the law enforcement policies are in fact being observed, section\n1 of the Order makes it clear that the actual supervision and control of\nthe National Guard in these circumstances is the responsibility of the\nSecretary of Defense.\nConclusion\n\nThe described use of the National Guard is not prohibited by the Posse\nComitatus Act because that Act does not apply to a National Guard act\xc2\xad\ning as a militia and because, even if that Act did so apply, such a use has\nbeen authorized by sections 39-104 and 39-602 of the D.C. Code. The\nactivity may receive funding from the Secretary of Defense under section\n1105 of the Defense Authorization Act if the President, as Commander-inChief of the National Guard, requests such financial assistance. Finally,\nExecutive Order 11485 assigns the Attorney General the responsibility of\nestablishing, in consultation with the Secretary of Defense, the law\nenforcement policies to be observed by the National Guard in these cir\xc2\xad\ncumstances, but it does not assign the Attorney General any responsibil\xc2\xad\nity with respect to the policy decision of whether the National Guard\nshould be assigned to the described use or any supervision and control\nresponsibility for the implementation of such a decision.\nDOUGLAS W. KMIEC\nAssistant Attorney General\nOffice of Legal Counsel\n\n97\n\n\x0c"


b'Effect Within the United States of Iranian Decrees\nConfiscating the Shah\xe2\x80\x99s Assets\nCourts o f the United States may give effect to Iranian decrees confiscating the property\nof the late Shah and his family, and will do so if the Executive stipulates, as an integral\npart of an international agreement with Iran, that such decrees will be given\nextraterritorial effect within the United States.\n\nNovember 17, 1980\nMEMORANDUM OPINION FOR THE LEGAL ADVISER,\nDEPARTM ENT OF STATE\nWe have explored the question whether the United States can give\neffect within the United States to Iranian decrees confiscating the\nproperty of the late Shah and his close relatives. This issue arises from\nthe demand of the Iranian government that we recognize the national\xc2\xad\nization as a condition to resuming normal relations and securing return\nof the hostages. Our general conclusion is that the Executive can, as an\nintegral part of an agreement with Iran, stipulate that the decrees will\nhave extraterritorial effect and that the courts will recognize such an\nagreement. On the other hand, if the government simply announces that\nthe decrees should be given effect here or makes such a representation\nin court, the courts would not treat the position as conclusive.\nGenerally, under the act of state doctrine, the courts of one nation\nwill not sit in judgment on the act of another nation within the latter\xe2\x80\x99s\nterritory. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416\n(1964). However, the validity of an act of a foreign state with respect\nto matters outside its territory may be examined by our courts under\napplicable laws and will only be given effect if in accord with our\npublic policy. Restatement (Second) of Foreign Relations Law of the\nUnited States \xc2\xa7 43 (1965). Thus, it is not unusual to find American court\ndecisions not giving extraterritorial effect to foreign confiscation de\xc2\xad\ncrees. In a situation similar to the case at hand, the Second Circuit\nrefused to give effect to a decree by which Iraq purported to confiscate\nthe estate of King Faisal II, who was killed in a revolution in 1958.\nRepublic of Iraq v. First National City Bank, 353 F.2d 47 (2d Cir. 1965),\ncert, denied, 382 U.S. 1027 (1966). Iraq sued to recover the King\xe2\x80\x99s estate\nin the United States. The court said that confiscation of the assets of an\nindividual is contrary to our public policy and sense of justice, citing\n292\n\n\x0cthe Due Process Clause and the prohibition against bills of attainder. Id.\nat 51-52.\nThe question arises as to whether the Executive can do anything to\nalter such a determination. (In the Iraq case the Executive made no\nattempt to indicate a federal policy on recognition of the decrees and\nleft the policy determination to the courts.) Although application of the\nact of state doctrine \xe2\x80\x9cmust be treated exclusively as an aspect of federal\nlaw,\xe2\x80\x9d Sabbatino, 376 U.S. at 423-27, nevertheless, the Supreme Court\nhas concluded that the courts are not bound to follow the Executive in\ncases where it makes suggestions as to whether the doctrine should\napply. First National City Bank v. Banco Nacional de Cuba, 406 U.S.\n759 (1972). The filing of a suggestion of interest would not therefore\nassure that the Executive\xe2\x80\x99s views would be followed.\nThe Iranians have also demanded that the United States issue a\nproclamation dealing with the Shah\xe2\x80\x99s property. In view of First Na\xc2\xad\ntional City Bank, it is not clear that the courts would consider such a\nproclamation conclusive. Thus, it would probably be treated like a\nformalized suggestion of interest.1\nAn executive agreement would, however, stand on a different foot\xc2\xad\ning. The principle has been established that federal policy must be\nrecognized as binding when the Executive enters an international agree\xc2\xad\nment which recognizes the validity of foreign expropriation decrees.\nThe Soviet government took power in 1918 and nationalized the assets\nof many enterprises wherever situated. When the United States recog\xc2\xad\nnized the Soviet government in 1933, it settled claims with the Soviet\nUnion by taking an assignment of Soviet assets in the United States.\nThe assignment included the nationalized property. The United States\ngovernment sued in local courts for possession of the assigned assets.\nThe New York courts ruled that recognition of the expropriations was\ncontrary to the controlling public policy, and that the United States\ncould take by assignment no more than the Soviet government had.\nThe Supreme Court reversed, holding that the assignment was a valid\nexercise of the President\xe2\x80\x99s foreign relations power and that the interna\xc2\xad\ntional agreement (giving extraterritorial effect to the confiscations) was\nbinding on the courts. United States v. Pink, 315 U.S. 203 (1942); United\nStates v. Belmont, 301 U.S. 324 (1937). In the present case the United\nStates would presumably not be taking an assignment of the Shah\xe2\x80\x99s\n1 T he language o f the International Em ergency Econom ic Pow ers A ct (IE E PA ), 50 U.S.C. \xc2\xa7 1702\n(Supp. I 1977), states that the President may \xe2\x80\x9cprevent . . . any . . . w ithholding of . . . any property\nin w hich any foreign country . . . has any interest.\xe2\x80\x9d This raises the possibility that IE E P A may be\nused to bolster the legal position of the Iranian authorities vis-a-vis the Shah\'s family. W e know of no\nprecedent, how ever, for the use o f either IE E P A or its predecessor, the T rading w ith the Enem y A ct,\nfor such a purpose and express no opinion on the question at this time. Care should be taken to make\nclear that the United States is not by its own action nationalizing the Shah\'s assests but merely\nrecognizing Iran\xe2\x80\x99s actions. T he treatm ent a foreign governm ent gives its ow n nationals does not in\nitself raise Fifth Amendm ent questions. United States v. Belmont, 301 U.S. 324, 332 (1937).\n\n293\n\n\x0cassets,2 but if the recognition of the expropriation were an integral part\nof a claims agreement, we believe the holdings of Pink and Belmont\nwould apply.\nWe also believe that Pink and Belmont are still controlling law.\nAlthough these cases have been distinguished by courts refusing to give\nextraterritorial effect to confiscations, in the absence of an international\nagreement, they have not been questioned on their own facts. The Iraq\ncase, 353 F.2d at 52, affirmed that policy could be set by international\nagreement:\nSuch action of the Chief Executive, taken under his\npower to conduct the foreign relations of the United\nStates, was considered to make the Soviet confiscation\ndecrees consistent with the law and policy of the United\nStates from that time forward, and, as we now know from\nSabbatino, federal law controls.\nSabbatino itself did not deal with the extraterritorial issue, but the\nholding of the case recognized, 376 U.S., at 428, that a treaty or \xe2\x80\x9cother\nunambiguous agreement\xe2\x80\x9d could establish controlling legal principles in\nan act of state case.3 Although a majority of the court in First National\nCity Bank, supra, stressed the fact that the Executive\xe2\x80\x99s representations\nto the courts were not to be conclusive, a fair reading of the case does\nnot suggest that the Court intended to limit the President\xe2\x80\x99s power to\nconclude international agreements or to change their effect.\nJohn M . H arm on\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n2Conceivably this might be done as a set-off for certain claims although we do not know of its\nhaving been proposed. It should be noted that in Belmont and Pink the net effect of recognizing the\nconfiscations w as to make additional assets available to U.S. claim ants, some of w hom had suffered\nfrom other Soviet expropriations. Even if the United States does not take an assignment of these\nassets, it might be argued that any potential claims pool w ith Iran has been increased by our crediting\nthe Iranian decree in the context o f a total settlem ent.\n?See also W hite, J., dissenting: \xe2\x80\x9c N o one seriously argued that the act of state doctrine precludes\nreliance on a binational com pact dealing with the effect to be afforded or denied a foreign act of\nstate." Id. at 444 n. 2.\n\n294\n\n\x0c'


b"Presidential Authority to Decline to Execute\nUnconstitutional Statutes\n\nT his m e m o ra n d u m d is c u s s e s th e P re s id e n t\xe2\x80\x99s c o n stitu tio n a l a u th o rity to d e clin e to e x ec u te u n c o n s titu \xc2\xad\ntio n a l statu tes.\n\nN ovem ber 2, 1994\n\nM e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s i d e n t\n\nI have reflected further on the difficult questions surrounding a President\xe2\x80\x99s deci\xc2\xad\nsion to decline to execute statutory provisions that the President believes are un\xc2\xad\nconstitutional, and I have a few thoughts to share with you. Let me start with a\ngeneral proposition that I believe to be uncontroversial: there are circum stances in\nwhich the President may appropriately decline to enforce a statute that he views as\nunconstitutional.\nFirst, there is significant judicial approval of this proposition. Most notable is\nthe C ourt\xe2\x80\x99s decision in M yers v. U nited States, 272 U.S. 52 (1926). T here the\nCourt sustained the President\xe2\x80\x99s view that the statute at issue was unconstitutional\nwithout any member o f the Court suggesting that the President had acted im prop\xc2\xad\nerly in refusing to abide by the statute. M ore recently, in F reytag v. C om m is\xc2\xad\nsioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed\nthat the President has \xe2\x80\x9cthe power to veto encroaching laws . . . or even to disregard\nthem when they are unconstitutional.\xe2\x80\x9d Id. at 906 (Scalia, J., concurring); se e also\nYoungstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson,\nJ., concurring) (recognizing existence of President\xe2\x80\x99s authority to act contrary to a\nstatutory command).\nSecond, consistent and substantial executive practice also confirms this general\nproposition. O pinions dating to at least 1860 assert the President\xe2\x80\x99s authority to\ndecline to effectuate enactments that the President views as unconstitutional. See,\ne.g., M em orial o f Captain M eigs, 9 Op. A tt\xe2\x80\x99y Gen. 462, 469-70 (1860) (asserting\nthat the President need not enforce a statute purporting to appoint an officer); see\nalso attached annotations of Attorney General and Office of Legal Counsel opin\xc2\xad\nions. Moreover, as we discuss more fully below, numerous Presidents have pro\xc2\xad\nvided advance notice of their intention not to enforce specific statutory\nrequirements that they have viewed as unconstitutional, and the Supreme C ourt has\nimplicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13\n(1983) (noting that Presidents often sign legislation containing constitutionally\nobjectionable provisions and indicate that they will not comply with those provi\xc2\xad\nsions).\n\n199\n\n\x0cOpinions o f th e O ffice o f L eg a l Counsel\n\nW hile the general proposition that in some situations the President may decline\nto enforce unconstitutional statutes is unassailable, it does not offer sufficient guid\xc2\xad\nance as to the appropriate course in specific circumstances. To continue our con\xc2\xad\nversation about these complex issues, I offer the following propositions for your\nconsideration.\n1.\nT he President\xe2\x80\x99s office and authority are created and bounded by the Consti\xc2\xad\ntution; he is required to act within its terms. Put somewhat differently, in serving\nas the executive created by the Constitution, the President is required to act in ac\xc2\xad\ncordance with the laws \xe2\x80\x94 including the Constitution, which takes precedence over\nother form s of law. This obligation is reflected in the Take Care Clause and in the\nPresident\xe2\x80\x99s oath of office.\n2.\nW hen bills are under consideration by Congress, the executive branch should\nprom ptly identify unconstitutional provisions and communicate its concerns to\nC ongress so that the provisions can be corrected. Although this may seem ele\xc2\xad\nmentary, in practice there have been occasions in which the President has been\npresented with enrolled bills containing constitutional flaws that should have been\ncorrected in the legislative process.\n3.\nThe President should presume that enactm ents are constitutional. There will\nbe som e occasions, however, when a statute appears to conflict with the Constitu\xc2\xad\ntion. In such cases, the President can and should exercise his independent judg\xc2\xad\nment to determ ine whether the statute is constitutional. In reaching a conclusion,\nthe President should give great deference to the fact that Congress passed the stat\xc2\xad\nute and that Congress believed it w as upholding its obligation to enact constitu\xc2\xad\ntional legislation. W here possible, the President should construe provisions to\navoid constitutional problems.\n4.\nT he Suprem e Court plays a special role in resolving disputes about the con\xc2\xad\nstitutionality o f enactm ents. As a general matter, if the President believes that the\nCourt would sustain a particular provision as constitutional, the President should\nexecute the statute, notwithstanding his own beliefs about the constitutional issue.\nIf, how ever, the President, exercising his independent judgm ent, determines both\nthat a provision would violate the Constitution and that it is probable that the Court\nwould agree with him, the President has the authority to decline to execute the stat\xc2\xad\nute.\n5.\nW here the P resident\xe2\x80\x99s independent constitutional judgm ent and his determ i\xc2\xad\nnation o f the C ourt\xe2\x80\x99s probable decision converge on a conclusion o f unconstitu\xc2\xad\ntionality, the President must make a decision about whether or not to comply with\nthe provision. That decision is necessarily specific to context, and it should be\n\n200\n\n\x0cP residential A uthority to D ecline to E xecute U nconstitutional Statutes\n\nreached after careful weighing of the effect of compliance with the provision on the\nconstitutional rights of affected individuals and on the executive branch\xe2\x80\x99s constitu\xc2\xad\ntional authority. Also relevant is the likelihood that compliance or non-compliance\nwill permit judicial resolution of the issue. That is, the President may base his de\xc2\xad\ncision to comply (or decline to com ply) in part on a desire to afford the Supreme\nCourt an opportunity to review the constitutional judgm ent o f the legislative\nbranch.\n6.\nThe President has enhanced responsibility to resist unconstitutional provi\xc2\xad\nsions that encroach upon the constitutional powers of the Presidency. W here the\nPresident believes that an enactment unconstitutionally limits his powers, he has\nthe authority to defend his office and decline to abide by it, unless he is convinced\nthat the Court would disagree with his assessment. If the President does not chal\xc2\xad\nlenge such provisions (i.e., by refusing to execute them), there often will be no\noccasion for judicial consideration of their constitutionality; a policy of consistent\nPresidential enforcement of statutes limiting his power thus would deny the Su\xc2\xad\npreme Court the opportunity to review the limitations and thereby would allow for\nunconstitutional restrictions on the President\xe2\x80\x99s authority.\nSome legislative encroachm ents on executive authority, however, will not be\njusticiable or are for other reasons unlikely to be resolved in court. If resolution in\nthe courts is unlikely and the President cannot look to a judicial determ ination, he\nmust shoulder the responsibility of protecting the constitutional role of the presi\xc2\xad\ndency. This is usually true, for example, of provisions limiting the President\xe2\x80\x99s\nauthority as Commander in Chief. W here it is not possible to construe such provi\xc2\xad\nsions constitutionally, the President has the authority to act on his understanding of\nthe Constitution.\nOne example o f a Presidential challenge to a statute encroaching upon his pow \xc2\xad\ners that did result in litigation was M yers v. U nited S tates , 272 U.S. 52 (1926). In\nthat case, President Wilson had defied a statute that prevented him from rem oving\npostmasters without Senate approval; the Supreme Court ultimately struck down\nthe statute as an unconstitutional limitation on the President\xe2\x80\x99s removal power.\nM yers is particularly instructive because, at the time President W ilson acted, there\nwas no Supreme Court precedent on point and the statute was not manifestly un\xc2\xad\nconstitutional. In fact, the constitutionality of restrictions on the President\xe2\x80\x99s\nauthority to remove executive branch officials had been debated since the passage\nof the Tenure o f Office Act in 1867 over President Johnson\xe2\x80\x99s veto. The closeness\nof the question was underscored by the fact that three Justices, including Justices\nHolmes and Brandeis, dissented in M yers. Yet, despite the unsettled constitution\xc2\xad\nality of President W ilson\xe2\x80\x99s action, no member of the Court in M yers suggested that\nWilson overstepped his constitutional authority \xe2\x80\x94 or even acted improperly \xe2\x80\x94 by\nrefusing to comply with a statute he believed was unconstitutional. The C ourt in\nM yers can be seen to have implicitly vindicated the view that the President may\n\n201\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nrefuse to com ply with a statute that lim its his constitutional powers if he believes it\nis unconstitutional. As Attorney General Civiletti stated in a 1980 opinion,\nM yers is very nearly decisive of the issue [of Presidential denial of\nthe validity of statutes]. M yers holds that the President\xe2\x80\x99s constitu\xc2\xad\n\ntional duty does not require him to execute unconstitutional statutes;\nnor does it require him to execute them provisionally, against the\nday that they are declared unconstitutional by the courts. He cannot\nbe required by statute to retain postmasters against his will unless\nand until a court says that he may lawfully let them go. If the statute\nis unconstitutional, it is unconstitutional from the start.\nThe A tto rn ey G e n e ra l\xe2\x80\x99s D uty to D efen d an d Enforce Constitutionally O bjection \xc2\xad\nable L egislation , 4 A Op. O.L.C. 55, 59 (1980).\n\n7.\nThe fact that a sitting President signed the statute in question does not change\nthis analysis. The text o f the Constitution offers no basis for distinguishing bills\nbased on who signed them; there is no constitutional analogue to the principles of\nwaiver and estoppel. Moreover, every President since Eisenhower has issued\nsigning statem ents in which he stated that he would refuse to execute unconstitu\xc2\xad\ntional provisions. See annotations o f attached signing statements. As we noted in\nour m em orandum on Presidential signing statements, the President \xe2\x80\x9cmay properly\nannounce to Congress and to the public that he will not enforce a provision o f an\nenactm ent he is signing. If so, then a signing statement that challenges what the\nPresident determ ines to be an unconstitutional encroachm ent on his power, or that\nannounces the President\xe2\x80\x99s unwillingness to enforce (or willingness to litigate) such\na provision, can be a valid and reasonable exercise of Presidential authority.\xe2\x80\x9d The\nL egal S ignificance o f P residen tial Signing Statem ents, 17 Op. O.L.C. 131, 134\n(1993). (O f course, the President is not obligated to announce his reservations in a\nsigning statem ent; he can convey his views in the time, manner, and form of his\nchoosing.) Finally, the Supreme C ourt recognized this practice in Chadha, 462\nU.S. at 942 n.13: the C ourt stated that \xe2\x80\x9cit is not uncommon for Presidents to ap\xc2\xad\nprove legislation containing parts which are objectionable on constitutional\ngrounds\xe2\x80\x9d and then cited the example of President Franklin Roosevelt\xe2\x80\x99s memoran\xc2\xad\ndum to Attorney General Jackson, in which he indicated his intention not to im\xc2\xad\nplem ent an unconstitutional provision in a statute that he had just signed. These\nsources suggest that the President\xe2\x80\x99s signing of a bill does not affect his authority to\ndecline to enforce constitutionally objectionable provisions thereof.\nIn accordance with these propositions, we do not believe that a President is lim\xc2\xad\nited to choosing between vetoing, for example, the Defense Appropriations Act\nand executing an unconstitutional provision in it. In our view, the President has the\n\n202\n\n\x0cP residential A uthority to D ecline to E xecute U nconstitutional Statutes\n\nauthority to sign legislation containing desirable elements while refusing to execute\na constitutionally defective provision.\nW e recognize that these issues are difficult ones. W hen the President\xe2\x80\x99s obliga\xc2\xad\ntion to act in accord with the Constitution appears to be in tension with his duty to\nexecute laws enacted by Congress, questions are raised that go to the heart o f our\nconstitutional structure. In these circumstances, a President should proceed with\ncaution and with respect for the obligation that each of the branches shares for the\nmaintenance of constitutional government.\nW ALTER DELLINGER\nA ssistan t A ttorn ey G eneral\nOffice o f L egal Counsel\n\nBrief Description of Materials\nAttorney General Opinions\n1) M em orial o f Captain Meigs, 9 Op. A tt\xe2\x80\x99y Gen. 462 (I860): In this opinion the\nAttorney General concluded that the President is permitted to disregard an uncon\xc2\xad\nstitutional statute. Specifically, Attorney General Black concluded that a statute\npurporting to appoint an officer should not be enforced: \xe2\x80\x9cEvery law is to be car\xc2\xad\nried out so far forth as is consistent with the Constitution, and no further. The\nsound part of it must be executed, and the vicious portion o f it suffered to drop.\xe2\x80\x9d\nId. at 469.\n2) C onstitutionality o f C on g ress\xe2\x80\x99 D isapproval o f A gency R egulations b y R esolu \xc2\xad\ntions N ot P resen ted to the President, 4A Op. O.L.C. 21 (1980)'. In this opinion\n\nAttorney General Civiletti instructed Secretary of Education Hufstedler that she\nwas authorized to implement regulations that had been disapproved by concurrent\ncongressional resolutions, pursuant to a statutory legislative veto. The Attorney\nGeneral noted that \xe2\x80\x9cthe Attorney General m ust scrutinize with caution any claim\nthat he or any other executive officer may decline to defend or enforce a statute\nwhose constitutionality is merely in doubt.\xe2\x80\x9d Id. at 29. He concluded, however,\nthat \xe2\x80\x9c [t]o regard these concurrent resolutions as legally binding would im pair the\nExecutive\xe2\x80\x99s constitutional role and might well foreclose effective judicial challenge\nto their constitutionality. More important, I believe that your recognition o f these\nconcurrent resolutions as legally binding would constitute an abdication o f the re\xc2\xad\nsponsibility of the executive branch, as an equal and coordinate branch of govern\xc2\xad\nment with the legislative branch, to preserve the integrity o f its functions against\nconstitutional encroachm ent.\xe2\x80\x9d Id.\n\n203\n\n\x0cOpinions o f th e Office o f L eg a l C ounsel\n\n3) The A ttorn ey G e n e ra l\xe2\x80\x99s Duty to D efend a n d Enforce C onstitutionally O b jec\xc2\xad\ntion able L egislation, 4A Op. O.L.C. 5 5 (1980): Attorney General Civiletti, in an\xc2\xad\nswer to a congressional inquiry, observed that \xe2\x80\x9c M yers holds that the President\xe2\x80\x99s\nconstitutional duty does not require him to execute unconstitutional statutes; nor\ndoes it require him to execute them provisionally, against the day that they are de\xc2\xad\nclared unconstitutional by the courts.\xe2\x80\x9d Id. at 59. He added as a cautionary note\nthat \xe2\x80\x9c [t]he President has no \xe2\x80\x98dispensing pow er,\xe2\x80\x99\xe2\x80\x9d meaning that the President and\nhis subordinates \xe2\x80\x9cmay not lawfully defy an Act o f Congress if the Act is constitu\xc2\xad\ntional. . . . In those rare instances in which the Executive may lawfully act in con\xc2\xad\ntravention o f a statute, it is the Constitution that dispenses with the operation o f the\nstatute. The Executive cannot.\xe2\x80\x9d Id. at 59-60.\n4) L e tte r f o r P e te r W. Rodino, Jr., Chairman, H ouse Ju diciary Com m ittee from\nW illiam French Smith, A ttorney G en eral (Feb. 22, 1985): This letter discussed the\nlegal precedent and authority for the President\xe2\x80\x99s refusal to execute a provision of\nthe Com petition in Contracting Act. The Attorney General noted that the decision\n\xe2\x80\x9cnot to im plem ent the disputed provisions has the beneficial byproduct of increas\xc2\xad\ning the likelihood o f a prom pt judicial resolution. Thus, far from unilaterally nulli\xc2\xad\nfying an A ct o f Congress, the Departm ent\xe2\x80\x99s actions are fully consistent with the\nallocation o f judicial pow er by the C onstitution to the courts.\xe2\x80\x9d Id. at 8. The letter\nalso stated that \xe2\x80\x9cthe President\xe2\x80\x99s failure to veto a measure does not prevent him sub\xc2\xad\nsequently from challenging the Act in court, nor does presidential approval of an\nenactm ent cure constitutional defects.\xe2\x80\x9d Id. at 3.\n\nOffice of Legal Counsel Opinions\n1) M em oran dum f o r the H onorable R obert J. Lipshutz, Counsel to the President,\nfro m John M. Harm on, Assistant A ttorn ey G eneral, Office o f L egal Counsel (Sept.\n27, 1977): This opinion concluded that the President may lawfully disregard a\nstatute that he interprets to be unconstitutional. W e asserted that \xe2\x80\x9ccases may arise\nin which the unconstitutionality of th e relevant statute will be certain, and in such a\ncase the Executive could decline to enforce the statute for that reason alone.\xe2\x80\x9d Id. at\n13. W e continued, stating that \xe2\x80\x9c[u]nless the unconstitutionality of a statute is clear,\nthe President should attem pt to resolve his doubts in a way that favors the statute,\nand he should not decline to enforce it unless he concludes that he is compelled to\ndo so under the circum stances.\xe2\x80\x9d Id. We declined to catalogue all the considera\xc2\xad\ntions that would weigh in favor of non-enforcement, but we identified two: first\nthe extent o f the harm to individuals or the governm ent resulting from enforce\xc2\xad\nment; and, second, the creation of an opportunity for a court challenge through\nnon-enforcem ent (e.g., M yers).\n\n204\n\n\x0cPresidential A uthority lo D ecline to E xecute U nconstitutional Statutes\n\n2) A ppropriation s Lim itation f o r Rules V etoed by Congress, 4B Op. O .L.C. 731\n(1980): In this opinion we rejected the constitutionality of a proposed legislative\nveto, prior to the C ourt\xe2\x80\x99s decision in Chadha. We opined that \xe2\x80\x9c[t]o regard this\n\nprovision as legally binding would impair the Executive\xe2\x80\x99s constitutional role and\nwould constitute an abdication of the responsibility of the Executive Branch.\xe2\x80\x9d Id.\nat 734. It should be noted that the legislation in question was pending in Congress,\nand the possibility that President Carter would sign the legislation did not affect\nour analysis of the constitutional issue. W e simply stated that, \xe2\x80\x9cif enacted, the\n[legislative veto provision] will not have any legal effect.\xe2\x80\x9d Id.\n3)\n\nIssues R aised by Foreign R elations Authorization Bill, 14 Op. O .L.C. 37\n(1990): This opinion also addressed then-pending legislation, in this case the for\xc2\xad\n\neign relations authorization bill for fiscal years 1990 and 1991. The opinion found\nthat a provision o f the bill was unconstitutional and severable. Regarding non\xc2\xad\nexecution, the opinion stated that \xe2\x80\x9cat least in the context of legislation that in\xc2\xad\nfringes the separation of powers, the President has the constitutional authority to\nrefuse to enforce unconstitutional laws.\xe2\x80\x9d Id. at 50. The opinion concluded that \xe2\x80\x9cif\nthe President chooses to sign H.R. 3792, he would be constitutionally authorized to\ndecline to enforce\xe2\x80\x9d the constitutionally objectionable section. Id. at 37.\n4) Issues R aised by P rovisions D irecting Issuance o f Official o r D iplom atic P a ss\xc2\xad\nports, 16 Op. O.L.C. 18 (1992): This opinion concluded that tw o statutory provi\xc2\xad\nsions that limited the issuance of official and diplomatic passports were\nunconstitutional and were severable from the remainder of the two statutes. On the\nquestion of non-execution, the opinion rejected \xe2\x80\x9cthe argument that the President\nmay not treat a statute as invalid prior to a judicial determination.\xe2\x80\x9d Id. at 36. The\nopinion concluded that the Constitution authorizes the President to refuse to en\xc2\xad\nforce a law that he believes is unconstitutional.\n5) The L egal Significance o f P residen tial Signing Statem ents, 1 7 Op. O.L.C. 131\n(1993): This opinion discusses different categories of signing statements, includ\xc2\xad\ning those construing bills to avoid constitutional problems and those in which the\nPresident declares \xe2\x80\x9cthat a provision of the bill before him is flatly unconstitutional,\nand that he will refuse to enforce it.\xe2\x80\x9d Id. at 133. The opinion concludes that such\n\xe2\x80\x9cuses of Presidential signing statements generally serve legitimate and defensible\npurposes.\xe2\x80\x9d Id. at 137.\n\nPresidential Signing Statements\n1) Statem ent by the State D epartm ent (Announcing P residen t W ilso n \xe2\x80\x99s Refusal to\nCarry Out the Section o f the Jones M erchant M arine A c t o f June 5, 1920, d ire c t\xc2\xad\ning him to term inate treaty provision s restricting the G overn m en t\xe2\x80\x99s right to im pose\n205\n\n\x0cO pinions o f the O ffice o f L eg a l Counsel\n\ndiscrim in atory tonnage du es and ta riff du ties), 17 A Com pilation o f the M essages\na n d P a p ers o f the P resid en ts 8871 (Sept. 24, J920) (Pres. Wilson): The State De\xc2\xad\n\npartm ent announced that it \xe2\x80\x9chas been informed by the President that he does not\ndeem the direction contained in Section 34 o f the so-called Merchant M arine Act\nan exercise of any constitutional pow er possessed by the Congress.\xe2\x80\x9d Id. The\nstatem ent also defended President W ilson\xe2\x80\x99s decision to sign the bill and noted that\n\xe2\x80\x9cthe fact that one section o f the law involves elem ents o f illegality rendering the\nsection inoperative need not affect the validity and operation o f the Act as a\nw hole.\xe2\x80\x9d 5 Green H ayw ood Hackworth, D igest o f International Law 324 (1943).\n2) S p ecia l M essage to the C ongress Upon Signing the D epartm ent o f Defense\nA p p ro priation Act, Pub. P apers o f D w igh t D. E isen how er 688 (July 13, 1955):\nPresident Eisenhow er, in signing a bill (H.R. 6042) that contained a legislative\nveto, stated that the legislative veto \xe2\x80\x9c will be regarded as invalid by the executive\nbranch of the G overnm ent in the adm inistration of H.R. 6042, unless otherwise\ndeterm ined by a court of competent jurisdiction.\xe2\x80\x9d Id. at 689.\n3) M em orandum on Inform ing C on gression al C om m ittees o f Changes Involving\nF oreign E conom ic A ssista n ce Funds, Pub. P a p ers o f John F. K ennedy 6 (Jan. 9,\n1963): President Kennedy stated that a provision in the bill he was signing con\xc2\xad\ntained an unconstitutional legislative veto. He announced that \xe2\x80\x9c[i]t is therefore my\nintention . . . to treat this provision as a request for information.\xe2\x80\x9d Id.\n4) Statem en t by the P resid en t Upon A pprovin g the Public Works A ppropriation s\nAct, Pub. P a p ers o f L yndon B. Johnson 104 (D ec. 31, 1963): President Johnson\nalso found that a legislative veto provision was unconstitutional and stated that he\nwould treat it as a request for information.\n5) S ta tem en t A bou t Signing the P u b lic B uildings Am endm ents o f 1972, Pub. P a \xc2\xad\np e rs o f R ich ard Nixon 6 8 6 (June 17, 1972): President Nixon stated that a clause\nconditioning the use o f authority by the executive branch on the approval of a con\xc2\xad\ngressional com m ittee was unconstitutional. He ordered the agency involved to\ncomply with \xe2\x80\x9cthe acceptable procedures\xe2\x80\x9d in the bill \xe2\x80\x9cwithout regard to the uncon\xc2\xad\nstitutional provisions I have previously referred to.\xe2\x80\x9d Id. at 687.\n6) Statem en t on Signing the D epartm ent o f D efense A ppropriation A ct o f 1976,\nPub. P a p ers o f G era ld R. Ford 241 (Feb. 10, 1976): President Ford stated that a\ncom m ittee approval m echanism was unconstitutional and announced that he would\n\xe2\x80\x9ctreat the unconstitutional provision . . . to the extent it requires further Congres\xc2\xad\nsional com m ittee approval, as a com plete nullity.\xe2\x80\x9d Id. at 242.\n\n206\n\n\x0cP residential A uthority lo D ecline to E xecute U nconstitutional Statutes\n\n7) S tatem ent on Signing C oastal Zone M anagem ent Im provem ent A ct o f 1980,\nPub. P a p ers o f Jimm y C arter 2335 (Oct. 18, 1980): President Carter stated that a\nlegislative veto provision was unconstitutional and that any attempt at a legislative\nveto would \xe2\x80\x9cnot [be] regarded as legally binding.\xe2\x80\x9d Id.\n8) S tatem en t on Signing the Union Station R edevelopm en t A ct o f 1981, Pub. P a \xc2\xad\np ers o f R on ald Reagan 1207 (Dec. 29, 1981): President Reagan stated that a leg\xc2\xad\nislative veto was unconstitutional and announced that \xe2\x80\x9c[t]he Secretary of\nTransportation will not . . . regard himself as legally bound by any such resolu\xc2\xad\ntion.\xe2\x80\x9d Id.\n9) Statem en t On Signing the N ational an d Com m unity S ervice A ct o f 1990, Pub.\nP apers o f G eorge Bush 1613 (Nov. 16, 1990): President Bush rejected the consti\xc2\xad\ntutionality of provisions that required a Presidentially appointed board exercising\nexecutive authority to include, among its 21 members, \xe2\x80\x9cseven members nominated\nby the Speaker of the House of Representatives . . . [and] seven members nom i\xc2\xad\nnated by the M ajority Leader of the Senate.\xe2\x80\x9d Id. at 1614. He announced that the\nrestrictions on his choice of nominees to the board \xe2\x80\x9care without legal force or ef\xc2\xad\nfect.\xe2\x80\x9d Id.\n10) 7 A C om pilation o f the M essages an d P apers o f the P resid en ts 3 7 7 (Aug. 14,\n1876) (Pres. Grant): This is one of the earliest of many instances of a President\n\xe2\x80\x9cconstruing\xe2\x80\x9d a provision (to avoid constitutional problems) in a way that seems to\namount to a refusal to enforce a provision of it. An 1876 statute directed that no\xc2\xad\ntices be sent to certain diplomatic and consular officers \xe2\x80\x9cto close their offices.\xe2\x80\x9d\nPresident Grant, in signing the bill, stated that, \xe2\x80\x9c [i]n the literal sense of this direc\xc2\xad\ntion it would be an invasion of the constitutional prerogatives and duty of the Ex\xc2\xad\necutive.\xe2\x80\x9d Id. In order to avoid this problem, President Grant \xe2\x80\x9cconstru[ed]\xe2\x80\x9d this\nprovision \xe2\x80\x9conly to exercise the constitutional prerogative of Congress over the ex\xc2\xad\npenditures of the Government,\xe2\x80\x9d not to \xe2\x80\x9cimply[] a right in the legislative branch to\ndirect the closing or discontinuing of any of the diplomatic or consular offices of\nthe G overnm ent.\xe2\x80\x9d Id. at 378.\n\nOther Presidential Documents\n1) A P resid en tia l L egal Opinion, 66 Harv. L. Rev. 1353 (1953): This was a legal\nopinion from President Franklin Roosevelt to Attorney General Jackson. President\nRoosevelt stated that he was signing the Lend-Lease Act despite a provision pro\xc2\xad\nviding for a legislative veto, \xe2\x80\x9ca provision which, in my opinion, is clearly uncon\xc2\xad\nstitutional.\xe2\x80\x9d Id. at 1357. The President stated that, \xe2\x80\x9c[i]n order that I may be on\nrecord as indicating my opinion that the foregoing provision of the so-called LendLease Act is unconstitutional, and in order that my approval of the bill, due to the\n207\n\n\x0cOpinions o f the Office o f L egal C ounsel\n\nexisting exigencies o f the world situation, may not be construed as a tacit acquies\xc2\xad\ncence in any contrary view, I am requesting you to place this memorandum in the\nofficial files o f the Department of Justice. I am desirous o f having this done for the\nfurther reason that I should not wish my action in approving the bill which includes\nthis invalid clause, to be used as a precedent for any future legislation comprising\nprovisions o f a sim ilar nature.\xe2\x80\x9d Id. at 1358.\n2) M essa g e to the C on gress on L egisla tive Vetoes, Pub. P apers o f Jim m y C arter\n1 1 4 6 (Jun. 21, 1978): In this memorandum President Carter expressed his strong\nopposition to legislative vetoes and stated that \xe2\x80\x9c[t]he inclusion of [a legislative\nveto] in a bill will be an important factor in my decision to sign or to veto it.\xe2\x80\x9d Id.\nat 1148. He further stated that, \xe2\x80\x9c[a]s for legislative vetoes over the execution of\nprogram s already prescribed in legislation and in bills I must sign for other rea\xc2\xad\nsons, the Executive Branch will generally treat them as \xe2\x80\x98report-and-wait\xe2\x80\x99 provi\xc2\xad\nsions. In such a case, if Congress subsequently adopts a resolution to veto an\nExecutive action, we will give it serious consideration, but we will not, under our\nreading o f the C onstitution, consider it legally binding.\xe2\x80\x9d Id. at 1149.\n\nHistorical Materials\n1) S tatem en t o f Jam es Wilson on D ec em b e r 1, 1 7 8 7 on the A doption o f the Fed\xc2\xad\neral Constitution, reprin ted in 2 Jonathan Elliot, D eb a tes on the F ederal C on sti\xc2\xad\ntution 4 1 8 (1836): W ilson argued that the Constitution imposed significant \xe2\x80\x94 and\nsufficient \xe2\x80\x94 restraints on the power o f the legislature, and that the President would\nnot be dependent upon the legislature. In this context, he stated that \xe2\x80\x9cthe pow er of\nthe C onstitution was paramount to the power o f the legislature acting under that\nConstitution; for it is possible that the legislature . . . may transgress the bounds\nassigned to it, and an act may pass, in the usual m ode, notwithstanding that trans\xc2\xad\ngression; but when it com es to be discussed before the ju d g es, \xe2\x80\x94 when they con\xc2\xad\nsider its principles, and find it to be incompatible with the superior power o f the\nConstitution,\xe2\x80\x94 it is their duty to pronounce it vo id . . . . In the same manner, the\nPresident o f the United States could shield himself, and refuse to carry into effect\nan act that vio la te s the Constitution.\xe2\x80\x9d Id. at 445-46.\n2) L etter fro m C h ief Justice Chase to G errit Smith (Apr. 19, 1868), q u o ted in J.\nSchuckers, The Life an d Public S ervices o f Salm on P ortlan d Chase 5 7 7 (1874):\nChase stated that President Johnson took the proper action in removing Secretary\nof W ar Stanton w ithout Senate approval, in light of Johnson\xe2\x80\x99s belief that the statu\xc2\xad\ntory restriction on his removal authority was unconstitutional. In this regard, Chase\ncom m ented that \xe2\x80\x9cthe President had a perfect right, and indeed was under the high\xc2\xad\nest obligation, to rem ove Mr. Stanton, if he m ade the removal not in wanton disre\xc2\xad\ngard o f a constitutional law, but with a sincere belief that the Tenure-of-Office Act\n208\n\n\x0cP residential A uthority to D ecline lo E xecute U nconstitutional Statutes\n\nwas unconstitutional and for the purpose of bringing the question before the Su\xc2\xad\npreme Court.\xe2\x80\x9d Id. at 578.\n\nCongressional Materials\n1) The P resid en t\xe2\x80\x99s Suspension o f the Com petition in C ontracting A c t is U ncon\xc2\xad\nstitutional, H.R. Rep. No. 99-138, 1st Sess. (1985): The House Committee on\nGovernment Operations concluded that the President lacked the authority to refuse\nto implement any provision of the Competition in Contracting Act. The Com m it\xc2\xad\ntee stated that, \xe2\x80\x9c[t]o adopt the view that one\xe2\x80\x99s oath to support and defend the Con\xc2\xad\nstitution is a license to exercise any available power in furtherance of one\xe2\x80\x99s own\nconstitutional interpretation would quickly destroy the entire constitutional scheme.\nSuch a view, whereby the President pledges allegiance to the Constitution but then\ndetermines what the Constitution means, inexorably leads to the usurpation by the\nExecutive of the others\xe2\x80\x99 roles.\xe2\x80\x9d Id. at 11. The Committee also stated that \xe2\x80\x9c[t]he\nExecutive\xe2\x80\x99s suspension of the law circumvents the constitutionally specified means\nfor expressing Executive objections to law and is a constitutionally impermissible\nabsolute veto power.\xe2\x80\x9d Id. at 13.\n2) M emorandum from the C ongressional Research S ervice to the C om m ittee on\nG overnm ent O perations concerning \xe2\x80\x9cThe E xecu tive\xe2\x80\x99s D uty to Enforce the L a w s \xe2\x80\x9d\n(Feb. 6, 1985), reprinted in C onstitutionality o f G A O \xe2\x80\x99s B id P ro test Function:\nH earings Before a Subcomm. o f the H ouse Comm, on G overnm ent O perations,\n99th Cong. 544 (1985): This memorandum stated that the President lacks the\n\nauthority to decline to enforce statutes. The CRS argued that \xe2\x80\x9c[t]he refusal of the\nPresident to execute the law is indistinguishable from the power to suspend the\nlaws. That power, as is true o f the power to amend or to revive an expired law, is a\nlegislative power.\xe2\x80\x9d Id. at 554.\n\nCases\n1) M yers v. U nited States, 272 U.S. 52 (1926): The President refused to comply\nwith \xe2\x80\x94 that is, enforce \xe2\x80\x94 a limitation on his power o f removal that he regarded as\nunconstitutional, even though the question had not been addressed by the Supreme\nCourt. A member of Congress, Senator Pepper, urged the Supreme Court to up\xc2\xad\nhold the validity of the provision. The Supreme Court vindicated the President\xe2\x80\x99s\ninterpretation without any member of the Court indicating that the President had\nacted unlawfully or inappropriately in refusing to enforce the removal restriction\nbased on his belief that it was unconstitutional.\n2) U nited States v. Lovett, 3 28 U.S. 303 (1946): The President enforced a statute\nthat directed him to withhold compensation from three named employees, even\n209\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nthough the President believed the law to be unconstitutional. The Justice D epart\xc2\xad\nment argued against the constitutionality o f the statute in the ensuing litigation.\n(The Court permitted an attorney to appear on behalf of Congress, am icus curiae,\nto defend the statute.)\n3) IN S v. Chadha, 4 62 U.S. 919 (1983): This case involved the withholding of\ncitizenship from an applicant pursuant to a legislative veto of an Attorney General\ndecision to grant citizenship. Despite a Carter Administration policy against com\xc2\xad\nplying with legislative vetoes (see Carter Presidential memorandum, supra), the\nexecutive branch enforced the legislative veto, and, in so doing, allowed for judi\xc2\xad\ncial review o f the statute. As with L ovett, the Justice Department argued against\nthe constitutionality of the statute.\n4) M o rrison v. Olson, 4 8 7 U.S. 6 5 4 (1988): The President viewed the independ\xc2\xad\nent counsel statute as unconstitutional. The Attorney General enforced it, making\nfindings and forwarding them to the Special Division. In litigation, however, the\nJustice D epartm ent attacked the constitutionality of the statute and left its defense\nto the Senate Counsel, as am icus cu riae, and the independent counsel herself.\n5) F reytag v. Com m issioner, 501 U.S. 868 (1991): A unanimous Court ruled that\nthe appointm ent of special trial judges by the C hief Judge of the United States Tax\nCourt did not violate the Appointments Clause. Five Justices concluded that the\nTax C ourt was a \xe2\x80\x9cCourt of Law\xe2\x80\x9d for Appointments Clause purposes, despite the\nfact that it was an Article I court, so that the Tax Court could constitutionally ap\xc2\xad\npoint inferior officers. Four Justices, in a concurrence by Justice Scalia, contended\nthat the Tax Court was a \xe2\x80\x9cD epartm ent\xe2\x80\x9d under the Appointments Clause. The con\xc2\xad\ncurrence stated that \xe2\x80\x9cCourt of Law\xe2\x80\x9d did not include Article I courts and that the\nFram ers intended to prevent Congress from having the power both to create offices\nand to appoint officers. In this regard, the concurrence stated that \xe2\x80\x9cit was not\nenough sim ply to repose the power to execute the laws (or to appoint) in the Presi\xc2\xad\ndent; it was also necessary to provide him with the means to resist legislative en\xc2\xad\ncroachm ent upon that power. T he means selected were various, including a\nseparate political constituency, to which he alone was responsible, and the power\nto veto encroaching laws, see Art. I, \xc2\xa7 7, or even to disregard them when they are\nunconstitutional.\xe2\x80\x9d Id. at 906 (Scalia, J., concurring).\n6)\n\nL ea r Siegler, Inc., Energy P rods. Div. v. Lehman, 842 F .2d 1102 (9th Cir.\n1988), w ithdraw n in p a r t 893 F.2d 2 0 5 (9th Cir. 1990) (en banc): The President\n\nrefused to comply with provisions o f the Competition in Contracting Act that he\nviewed as unconstitutional and thereby allowed for judicial resolution of the issue.\nThe Ninth Circuit rejected the President\xe2\x80\x99s argum ents about the constitutionality of\nthe provisions. The court further determ ined that Lear Siegler was a prevailing\n\n210\n\n\x0cP resid en tia l Authority\xe2\x80\x99 to D ecline to E xecute U nconstitutional Statutes\n\nparty and was entitled to attorneys\xe2\x80\x99 fees, because the executive branch acted in bad\nfaith in refusing to execute the contested provisions. In this regard, the court stated\nthat the President\xe2\x80\x99s action was \xe2\x80\x9cutterly at odds with the texture and plain language\nof the Constitution,\xe2\x80\x9d because a statute is part of the law of the land that the Presi\xc2\xad\ndent is obligated to execute. Id. at 1121, 1124. On rehearing en banc, the court\nruled that Lear Siegler was not a prevailing party and withdrew the sections of the\nopinion quoted above.\n\n211\n\n\x0c"