b'Whether the Federal Trade Commission Has Authority\nto Prosecute Actions for Criminal Contempt\nThe Federal Trade Commission lacks authority to prosecute actions for cnm inal contem pt,\nunless the Com m ission\xe2\x80\x99s attorneys receive special appointments from the Attorney\nGeneral and b ecom e subject to his direction.\n\nSeptember 25, 1989\nM e m o r a n d u m O p in io n f o r t h e A c t in g A s s is t a n t A t t o r n e y G e n e r a l\nC iv i l D i v i s i o n\n\nThis memorandum responds to your request for the opinion of this\nOffice as to whether the Federal Trade Commission (\xe2\x80\x9cFTC\xe2\x80\x9d or \xe2\x80\x9cCom\xc2\xad\nmission\xe2\x80\x9d) has authority to prosecute actions for criminal contempt. We\nconclude that the Commission lacks authority to prosecute such actions,\nunless the Commission\xe2\x80\x99s attorneys receive special appointments from the\nAttorney General and become subject to his direction.\nI.\n\nA court o f the United States has the power to \xe2\x80\x9cpunish by fine or impris\xc2\xad\nonment ... such contempt of its authority, and none other, as ... [disobe\xc2\xad\ndience or resistance to its lawful writ, process, order, rule, decree, or\ncommand.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 401(3). Where an alleged criminal contempt arises\nfrom disobedience to a court order in a case that the Commission has\nbrought or defended, the Commission asserts "the authority, upon\nappointment by the court, to prosecute the contempt. See Letter for\nRobert N. Ford, Deputy Assistant Attorney General, Civil Division, from\nAmanda B. Pederson, Deputy Director of Consumer Protection, Federal\nTrade Commission at 1 (June 24, 1985) (\xe2\x80\x9cPederson Letter\xe2\x80\x9d). The Civil\nDivision and the Criminal Division both take the view that the\nCommission is without authority to conduct such prosecutions. See\nLetter for Amanda B. Pederson, from Robert N. Ford (June 10, 1985);\nMemorandum for Margaret Love, Attomey-Advisor, Office of Legal\nCounsel, from Lawrence Lippe, Chief, General Litigation and Legal\nAdvice Section, Criminal Division (Oct. 28, 1985).\nUnder 28 U.S.C. \xc2\xa7 516, the Attorney General, \xe2\x80\x9c[e]xcept as otherwise\nauthorized by law,\xe2\x80\x9d has control over \xe2\x80\x9cthe conduct o f litigation in which\n291\n\n\x0cthe United States, an agency, or officer thereof is a party, or is interested.\xe2\x80\x9d\nSee also 28 U.S.C. \xc2\xa7 519.1The principle that the Attorney General has ple\xc2\xad\n\nnary authority over such litigation applies with particular force in crimi\xc2\xad\nnal cases. See United States v. Nixon, 418 U.S. 683, 694 (1974) (\xe2\x80\x9cUnder\nthe authority o f Art. II, \xc2\xa7 2, Congress has vested in the Attorney General\nthe pow er to conduct the criminal litigation o f the United States\nGovernment.\xe2\x80\x9d) (citing 28 U.S.C. \xc2\xa7 516). Therefore, the Commission may\nnot bring an action for criminal contempt unless clearly \xe2\x80\x9cauthorized by\nlaw\xe2\x80\x9d to do so. Cf. United States v. International Union of Operating\nEng\'rs, 638 F.2d 1161, 1162 (9th Cir. 1979), cert, denied, 444 U.S. 1077\n(1980) (noting \xe2\x80\x9ca presumption against a congressional intention to limit\nthe power o f the Attorney General to prosecute offenses under the crim\xc2\xad\ninal laws o f the United States,\xe2\x80\x9d in rejecting argument that United States\nmust exhaust administrative remedies before bringing criminal case).\nWe do not believe that the Commission is authorized by the FTC Act,\nch. 311, 38 Stat. 717 (codified as amended at 15 U.S.C. \xc2\xa7\xc2\xa7 41-58), or any\nother statute to prosecute actions for criminal contempt. The\nCommission\xe2\x80\x99s statutory authority to litigate on its own behalf is confined\nto civil proceedings. See 15 U.S.C. \xc2\xa7 56(a)(1)(A) & (a)(2) (stating that the\nCommission may \xe2\x80\x9ccommence, defend, or intervene in\xe2\x80\x9d various kinds of\n\xe2\x80\x9ccivil action[s]\xe2\x80\x9d); see also 15 U.S.C. \xc2\xa7 56(a)(3)(A) (referring to \xe2\x80\x9cany civil\naction in which the Commission represented itself\xe2\x80\x99).2 The FTC Act, how\xc2\xad\never, expressly assigns to the Attorney General the responsibility for\n1This Office has previously concluded\n(A)bsent clear legislative directives to the contrary, the Attorney General has full plenary\nauthority over all litigation, civil and criminal, to which the United States, its agencies, or\ndepartments, are parties. Such authonty is rooted historically in our common law and tradi\xc2\xad\ntion, see Confiscation Cases, 74 U.S. (7 Wall) 454, 458-59 (1866) and, since 1870, has been\ngiven a statutory basis. See 5 U.S.C. \xc2\xa7 3106, and 28 U S.C \xc2\xa7\xc2\xa7 516, 519. The Attorney General\xe2\x80\x99s\nplenary authonty is circumscribed only by the duty imposed on the President under Article\nII, \xc2\xa7 3 o f the Constitution to \xe2\x80\x9ctake Care that the Laws be faithfully executed "\nAttorney General\'s Role as Chief Litigator for the United States, 6 Op OLC. 47, 48 (1982) (citation\nomitted).\n2 15 U.S.C. \xc2\xa7 56(a) reads, in relevant part:\n(1) Except as otherwise provided in paragraph (2) or (3), if \xe2\x80\x94\n(A ) before commencing, defending, or intervening in, any civil action involving [sec\xc2\xad\ntions 41 to 46 and 47 to 58 o f this title] (including an action to collect a civil penalty)\nwhich the Commission, or the Attorney General on behalf o f the Commission, is autho\xc2\xad\nrized to comm ence, defend, or intervene in, the Commission gives written notification\nand undertakes to consult with the Attorney General with respect to such action, and\n(B ) The Attorney General fails within 45 days after the receipt o f such notification to\ncomm ence, defend, or intervene in, such action;\nthe Commission may commence, defend, or intervene in, and supervise the litigation or, such\naction and any appeal o f such action in its own name by any o f its attorneys designated by it\nfor such purpose.\n(2) Except as otherwise provided in paragraph (3), in any civil action\xe2\x80\x94\nthe Commission shall have exclusive authonty to commence or defend, and supervise the\nlitigation of, such action and any appeal o f such action in its own name by any o f its attorneys\nContinued\n\n292\n\n\x0cbringing any criminal cases arising from violations o f the laws adminis\xc2\xad\ntered by the Commission:\nWhenever the Commission has reason to believe that any\nperson, partnership, or corporation is liable for a criminal\npenalty under [sections 41 to 46 and 47 to 58 o f this title],\nthe Commission shall certify the facts to the Attorney\nGeneral, whose duty it shall be to cause appropriate crimi\xc2\xad\nnal proceedings to be brought.\n15 U.S.C. \xc2\xa7 56(b).3\nIndeed, in enacting amendments to 15 U.S.C. \xc2\xa7 56 and related provi\xc2\xad\nsions in 1973, Congress took special care not to create ambiguities in the\nstatute that might lead to the Commission\xe2\x80\x99s assuming a criminal jurisdic\xc2\xad\ntion. When the bill came from the Conference Committee, it included one\nprovision (15 U.S.C. \xc2\xa7 45(m)) that the parliamentarian o f the House inter\xc2\xad\npreted as allowing criminal prosecutions by the Commission. See 119\nCong. Rec. 36,813 (1973) (remarks of Sen. Stevens). To clarify the provi\xc2\xad\nsion, the Senate returned to the version that it had originally passed,\nwhich plainly \xe2\x80\x9capplie[d] only to civil actions.\xe2\x80\x9d Id,.4\nNevertheless, the Commission argues that it has authority to bring\nactions for criminal contempt. The Commission does not claim any\nexpress statutory basis for this supposed authority. Instead, it contends\nthat \xe2\x80\x9cthe authority of [its] attorneys to prosecute the criminal contempt\n(if appointed by the court to do so) is an inherent part of their authority\nto prosecute the underlying action from which the contempt arises.\xe2\x80\x9d\nPederson Letter at 1. The Commission also relies on the Supreme Court\xe2\x80\x99s\nopinion in FTC v. Dean Foods Co., 384 U.S. 597 (1966). In that case, the\nCourt held that the Commission, despite an absence o f explicit statutory\nauthority, could seek preliminary relief from the Court of Appeals pend\xc2\xad\ning the outcome of Commission proceedings in a merger case because\n\xe2\x80\x9c[s]uch ancillary powers have always been treated as essential to the\n\n2(.. continued)\ndesignated by it for such purpose, unless the Commission authorizes the Attorney General to\ndo so The Commission shall inform the Attorney General o f the exercise o f such authority and\nsuch exercise shall not preclude the Attorney General from intervening on behalf o f the United\nStates in such action and any appeal o f such action as may be otherwise provided by law\n15 U.S.C. \xc2\xa7 56(a) 15 U S C. \xc2\xa7 56(a)(3), to which these sections refer, deals with representation in civil\nactions before the Supreme Court\n3 As explained below, the Commission asserts that its power to prosecute contempts is incidental to its\nstatutory power under the sections o f the United States Code referred to in 15 U.S.C. \xc2\xa7 56(b) Therefore,\nthe Commission could not escape from the provision o f 15 U.S C \xc2\xa7 56(b) about certification to the\nAttorney General by arguing that liability for contempt is not \xe2\x80\x9cunder [sections 41 to 46 and 47 to 58]\xe2\x80\x9d of\ntitle 15, as referred to in that provision.\n4 Although Congress substituted a new version o f 15 U.S.C \xc2\xa7 45(m) in 1975, the amended provision\nexpressly applies only to civil actions and thus does not enlarge the scope o f the section in that respect.\nSee Pub. L No 93-637, tit. II, \xc2\xa7\xc2\xa7 204(b), 205(a), 88 Stat. 2193, 2199, 2200-01 (1975).\n\n293\n\n\x0ceffective discharge o f the Commission\xe2\x80\x99s responsibilities.\xe2\x80\x9d Id. at 607.\nFinally, the Commission contends that its authority may be justified by its\nconsistent exercise o f this authority in the past.\n\nII.\nThe Commission\xe2\x80\x99s arguments do not establish its statutory authority to\nbring actions for criminal contempt.\nA.\nThe Commission has no authority to prosecute a criminal contempt\nas \xe2\x80\x9can inherent part o f [its] authority to prosecute the underlying action\nfrom which the contempt arises.\xe2\x80\x9d Pederson Letter at 1. An action for\ncriminal contempt is separate from the underlying civil litigation. As the\nSupreme Court explained in Young v. United States ex rel. Vuitton, 481\nU.S. 787 (1987), the \xe2\x80\x9ccriminal contempt proceedings arising out o f civil\nlitigation \xe2\x80\x98are between the public and the defendant, and are not a part of\nthe original cause.\xe2\x80\x99\xe2\x80\x9d Id. at 804 (quoting Gompers v. Bucks Stove & Range\nCo., 221 U.S. 418, 445 (1911)); see Bray v. United States, 423 U.S 73, 75\n(1975).5 Because the underlying civil action that Congress authorized the\nCommission to pursue is distinct from the criminal contempt action,\nthere is no reason to infer that Congress intended the Commission\xe2\x80\x99s liti\xc2\xad\ngation authority to reach criminal contempt cases.\nThis conclusion is no mere matter of form but follows from the essen\xc2\xad\ntially different interests at stake in the underlying civil litigation and the\nsubsequent criminal prosecution. Civil actions for injunctions vindicate\nthe goals o f the Federal Trade Commission Act or the Clayton Act;\nCongress explicitly entrusted the Commission with the duty of seeking\nthose goals through litigation. An action for criminal contempt, however,\nis aimed at \xe2\x80\x9cvindicating the authority o f the court\xe2\x80\x9d and \xe2\x80\x9cpresenting]\nrespect for the judicial system itself.\xe2\x80\x9d Vuitton, 481 U.S. at 800.\xc2\xae\nProsecution o f the criminal contempt, therefore, serves purposes different\nfrom those Congress directed the Commission to pursue in civil litigation.7\n5 A prosecution for cnminal contempt, fo r example, is not \xe2\x80\x9caffected by any settlement which the par\xc2\xad\nties to the [underlying] equity cause made in their pnvate litigation,\xe2\x80\x9d but continues as a separate action.\nGompers v Bucks Stove & Range Co , 221 U.S at 451\n6The Supreme Court accordingly held in Vuitton that attorneys \xe2\x80\x9cappointed to prosecute a cnminal con\xc2\xad\ntempt action represent the United States, n ot the party that is the beneficiary o f the court order alleged\xc2\xad\nly violated." 481 U.S. at 804, see United States v. Providence Journal Co , 485 U S. 693, 700 (1988) (\xe2\x80\x9cThe\naction was initiated in vindication of the \xe2\x80\x98judicial Power o f the United States\' U S. C onst, Art. Ill, \xc2\xa7 1\n(emphasis added), and it is that interest, unique to the sovereign, that continues now to be litigated in\nthis Court.\xe2\x80\x9d).\n7 To be sure, a prosecution for cnminal contempt, in som e measure, will indirectly promote the statu\xc2\xad\ntory policies at stake m the underlying litigation. Future violations o f orders requinng obedience to the\nstatute administered by the Commission may be deterred by the prospect o f punishment for contempt.\nBut this indirect promotion o f the statutory policies does not detract from the primary purpose o f vindicatingjudicial authonty in cnminal contempt cases. It is the vindication o f judicial authonty (and not the\nCommission\xe2\x80\x99s authonty) that justifies appointment o f a prosecutor by the court in the first place. See\nVuitton, 481 U.S. at 800-01, Cheff v Schnackenberg, 384 U S. 373, 378 (1966) (plurality opinion) ( \xe2\x80\x9cCheff\nwas found in contempt o f the Court of Appeals, not o f the Commission.\xe2\x80\x9d).\n\n294\n\n\x0cThe Commission\xe2\x80\x99s argument, moreover, could lead to a widening circle\nof \xe2\x80\x9cincidental\xe2\x80\x9d criminal prosecutions by the Commission. Charges o f per\xc2\xad\njury, bribery, or obstruction of justice, too, could grow out o f civil pro\xc2\xad\nceedings brought by the Commission. To our knowledge, however, the\nCommission has never asserted authority to prosecute such crimes, and\nexercise o f such authority would be clearly contrary to the requirement\no f the FTC Act that criminal charges be referred to the Attorney General.\nActions for criminal contempt, therefore, are separate from the under\xc2\xad\nlying civil actions in which the orders alleged to be violated are issued.\nThe Commission\xe2\x80\x99s authority to litigate the civil actions does not entail\nany \xe2\x80\x9cinherent\xe2\x80\x9d authority to bring actions for criminal contempt.\nB.\nThe Supreme Court\xe2\x80\x99s decision in FTC v. Dean Foods Co., 384 U.S.\n597 (1966), does not support the authority claimed by the Commission to\ninitiate actions for criminal contempt. Dean Foods merely held that the\nCommission could ask the court o f appeals for a preliminary iryunction\nagainst a merger, pending the outcome o f administrative proceedings.\nAlthough the Commission had no explicit statutory power to seek this\npreliminary relief, the Court ruled that such power could be inferred:\n[T]he Commission is a governmental agency to which\nCongress has entrusted, inter alia, the enforcement o f the\nClayton Act, granting it the power to order divestiture in\nappropriate cases. At the same time, Congress has given the\ncourts o f appeals jurisdiction to review final Commission\naction. It would stultify congressional purpose to say that\nthe Commission did not have the incidental power to ask\nthe courts of appeals to exercise their authority derived\nfrom the All Writs Act.\nId. at 606 (footnote omitted). This rationale does not justify the Com\xc2\xad\n\nmission\xe2\x80\x99s prosecution o f actions for criminal contempt. An action for\ncriminal contempt does not vindicate the laws whose enforcement\n\xe2\x80\x9cCongress has entrusted\xe2\x80\x9d to the Commission; it vindicates the authority\nof the court, in a proceeding separate from the underlying civil action.\nMoreover, without authority to seek a preliminary ii\\junction, the\nCommission would be powerless to prevent illegal mergers. Thus, injunc\xc2\xad\ntive authority is necessary to accomplish the mission Congress has set for\nthe FTC. On the other hand even without criminal contempt authority,\nthe FTC can fully vindicate its decrees through its civil authority.\nAccordingly, the authority to prosecute criminal contempts cannot be\nfairly inferred from the FTC\xe2\x80\x99s general statutory authority.\nNor do we believe that the Dean Foods Court\xe2\x80\x99s observation, in dictum,\nthat it had never been \xe2\x80\x9casserted that the Commission could not bring con\xc2\xad\ntempt actions in the appropriate court o f appeals when the court\xe2\x80\x99s\nenforcement orders were violated, though it has no statutory authority in\n295\n\n\x0cthis respect,\xe2\x80\x9d 384 U.S. at 607, suggests that the Commission er\\joys the\npower to bring criminal contempt cases. The Court followed this observa\xc2\xad\ntion by declaring that \xe2\x80\x9c[s]uch ancillary powers have always been treated as\nessential to the effective discharge of the Commission\xe2\x80\x99s responsibilities.\xe2\x80\x9d\nId. Thus, this dictum can most sensibly be read as referring to civil con\xc2\xad\ntempt, since the other instances o f the Commission\xe2\x80\x99s implied powers dis\xc2\xad\ncussed by the Court \xe2\x80\x94 the power to seek preliminary relief from an\nappellate court and the power to defend Commission orders in judicial\nreview proceedings \xe2\x80\x94 concern civil actions in which the Commission\xe2\x80\x99s\nauthority and the policies o f the statutes administered by the\nCommission would be vindicated. See id. at 606-07. Criminal contempt\ncases, as explained above, vindicate instead the authority o f the court, in\nproceedings separate from the underlying civil actions.\nFurthermore, the Eighth Circuit has reached the conclusion that Dean\nFoods \xe2\x80\x9cdid not directly or indirectly concern itself with the possible con\xc2\xad\nflict between the Commission and the Attorney General over which\nagency was the proper one to seek the exercise\xe2\x80\x9d o f the appellate court\xe2\x80\x99s\npower to issue a preliminary injunction. FTC v. Guignon, 390 F.2d 323,\n327 (8th Cir. 1968). The issue in Guignon was whether the Commission,\non its own behalf, could seek to enforce discovery subpoenas or needed\nthe \xe2\x80\x9caid or consent\xe2\x80\x9d o f the Attorney General. Id. at 324. The court decid\xc2\xad\ned that the Commission could not seek, on its own behalf, to enforce its\ndiscovery subpoenas but depended on the Attorney General to do so.\nWhether or not the court in Guignon was correct in making this ruling,8\nor in interpreting Dean Foods as not involving possible conflicts between\nthe Commission and the Attorney General, Guignon demonstrates that\nDean Foods should not be read as a general warrant for the Commission\nto assert implied powers that conflict with the Attorney General\xe2\x80\x99s statu\xc2\xad\ntory authority.\nC.\nThe Commission also argues that its authority to prosecute criminal\ncontempts \xe2\x80\x9cis supported both by long and consistent usage and by the\nonly decision o f which [the Commission is] aware in which the issue [of\nagency authority] was expressly contested and resolved.\xe2\x80\x9d Pederson\nLetter at 1. As an initial matter, we do not believe that usage alone can\njustify a practice unsupported in law \xe2\x80\x94 nor can a single district court\ndecision. In any event, we do not believe that the usage or the case pro\xc2\xad\nvides support for the Commission\xe2\x80\x99s claim o f authority to bring criminal\ncontempt actions.\nAs to the usage, the Commission cites seven reported cases in which it\n8 Two district court cases decided at approximately the same time as Guignon held that the\nCommission could seek to enforce its subpoenas without the consent and assistance o f the Attorney\nGeneral FTC v. Kujawski, 298 F. Supp. 1288, 1289 (N D. G a 1969); FTC v. Continental Can Co , 267 F.\nSupp. 713 (S.D.N.Y. 1967) Through later legislation, Congress made clear the Commission\xe2\x80\x99s statutory\nauthonty to bring actions to enforce subpoenas. See 15 U S.C \xc2\xa7 56(a)(2)(D), Pub L. No. 93-153, tit. IV, \xc2\xa7\n408(g), 87 Stat 576, 592 (1973); Pub. L. No. 93-637, tit. II, \xc2\xa7 204(a), 88 Stat. 2183, 2199 (1975).\n\n296\n\n\x0cprosecuted criminal contempts.9 As the Commission concedes, Pederson\nLetter at 2-3, the courts in these cases did not address the Commission\xe2\x80\x99s\nauthority to bring the actions. Nor did the Ninth Circuit consider the\nissue of statutory authority in a more recent case in which it sustained a\nfinding of contempt and rejected the argument that, under Vuitton, the\nCommission was disqualified from prosecuting the contempt because it\nwas an interested party.10 See FTC v. American Nat\xe2\x80\x99l Cellular, 868 F.2d\n315 (9th Cir. 1989). Because these cases do not discuss the issue of statu\xc2\xad\ntory authority, they do not illuminate whether Congress intended the\nCommission to prosecute criminal contempts. See United States v.\nMorton Salt Co., 338 U.S. 632, 647 (1950) (Nonexistent powers cannot \xe2\x80\x9cbe\nprescripted by an unchallenged exercise.\xe2\x80\x9d).\nNor has the usage in this area been consistent. In one instance of which\nwe have been made aware, the Commission\xe2\x80\x99s lawyers received appoint\xc2\xad\nments as Special Assistant United States Attorneys, when a grand jury was\nconducting an investigation bearing on possible charges of criminal con\xc2\xad\ntempt. See Memorandum for D. Lowell Jensen, Deputy Attorney General,\nfrom Richard K. Willard, Acting Assistant Attorney General, Civil Division,\nat 1-2 (July 30, 1985); Memorandum for Richard K. Willard, Acting\nAssistant Attorney General, Civil Division, from John R. Fleder, Assistant\nDirector, Office o f Consumer Litigation (May 30,1985); Pederson Letter at\n3 n.3, 6; 28 U.S.C. \xc2\xa7 515. The Commission suggests that this involvement\nby the Department o f Justice does not destroy the consistency o f the\nCommission\xe2\x80\x99s practice o f representing itself because the Commission\xe2\x80\x99s\nattorneys \xe2\x80\x9cmight properly prosecute the particular matter themselves.\xe2\x80\x9d\nPederson Letter at 3 n.3. That argument, however, is circular; it assumes\nthat the Commission\xe2\x80\x99s lawyers could have brought an action. Absent the\nassumption that the Commission may prosecute a criminal contempt\naction, the involvement o f the Department o f Justice undermines the con\xc2\xad\nsistency of the very usage on which the Commission relies.\nThe Commission also argues that one case, SEC v. Murphy, Fed. Sec. L.\nRep. (CCH) 99,688 (C.D. Cal. 1983), explicitly considered and upheld the\nauthority of the Securities and Exchange Commission to bring criminal\ncontempt actions under a statute similar to 15 U.S.C. \xc2\xa7 56. The Court in\nMurphy did not discuss the different interests to be vindicated in criminal\ncontempt action and the underlying civil case. Instead, the court based its\nholding on the absence o f an explicit statutory prohibition against the\n\n9FTC v. Hoboken White Lead & Color Works, 67 F.2d 551 (2d Cir. 1933); FTC v. Pacific States Paper\nTrade Ass\xe2\x80\x99n, 88 F.2d 1009 (9th Cir 1937), In re Dolan Co7p., 247 F2d 524 (D C. Cir. 1956), cert denied,\n353 U.S. 988 (1957), In re P. LoriUard Co , 1959 Trade Cas (CCH) H 69,272 (4th Cir 1959); In re\nFloersheim, 316 F.2d 423 (9th Cir. 1963), In re Holland Furnace Co., 341 F.2d 548 (7th Cir. 1965), affd\nsub nom Cheff v Schnackenberg, 384 U S. 373 (1966); In re Whitney & Co., 273 F.2d 211 (9th Cir 1959).\n10Vuitton held, under the Court\xe2\x80\x99s supervisory power, that counsel for an interested party in civil litiga\xc2\xad\ntion underlying a contempt action should not be appointed to prosecute the contempt. See 481 U.S. at\n802-09.\n\n297\n\n\x0cSEC\xe2\x80\x99s bringing the action and on the argument that \xe2\x80\x9cthe SEC \xe2\x80\x94 not the\nUnited States Attorney, the Attorney General, or anyone else \xe2\x80\x94 is in the\nbest position to know the specific prohibitions o f the injunction and the\nparticular circumstances which allegedly constitute the contempt of the\ninjunction.\xe2\x80\x9d Id. at 97,765. In Vuitton, however, the Court rejected the argu\xc2\xad\nment that an attorney\xe2\x80\x99s expertise justifies giving him control of a prosecu\xc2\xad\ntion for criminal appointment. The Court held that, despite expert knowl\xc2\xad\nedge, counsel for an interested private party should not be allowed to\nprosecute a criminal contempt: \xe2\x80\x9cThat familiarity may be put to use in\nassisting a disinterested prosecutor in pursuant to the contempt action,\nbut cannot justify permitting counsel for the private party to be in control\no f the prosecution.\xe2\x80\x9d Vuitton, 481 U.S. at 806 n.17. Similarly, the\nCommission\xe2\x80\x99s knowledge of the underlying action cannot justify abandon\xc2\xad\ning the principle that the Attorney General is to control the litigation of\ncriminal cases on behalf of the United States. See United States v. Nixon,\n418 U.S. at 694; 28 U.S.C. \xc2\xa7 516. The single district court case addressing\nthis issue \xe2\x80\x94 decided before Vuitton \xe2\x80\x94 is, therefore, unpersuasive.\nIn sum, the cases and practices on which the Commission relies do not\nestablish that the Commission has implied authority to bring actions for\ncriminal contempt. The cases involving the Commission itself do not\ntouch on the issue at all; the usage in this area is not consistent; and the\nsingle district court case that might lead to an argument by analogy has\nbeen undercut by the later opinion o f the Supreme Court in Vuitton.\n\nIII.\nFinally, we address two arguments not advanced in the Pederson\nLetter. First, although the Pederson Letter cites Fed. R. Crim. P. criminal\ncontempt actions, the Commission does not rely on Rule 42(b) as \xe2\x80\x9cauthoriz[ing] by law\xe2\x80\x9d the Commission\xe2\x80\x99s initiation of actions for criminal con\xc2\xad\ntempt. Since the Pederson Letter, Vuitton has established that Rule 42(b)\n\xe2\x80\x9cdoes not provide authorization for the appointment o f a private attor\xc2\xad\nney\xe2\x80\x9d but \xe2\x80\x9cspeaks only to the procedure for providing notice of criminal\ncontempt.\xe2\x80\x9d Vuitton, 481 U.S. at 793, 794 (emphasis omitted). Rule 42(b)\nthus offers no authority for the Commission to prosecute contempts.\nSecond, it might be argued that even if the Commission lacks statutory\nauthority to bring actions for criminal contempt, a court, through the\nexercise o f its authority to appoint prosecutors, could empower the\nCommission to prosecute a criminal contempt case. Any such argument\nwould be groundless. In addition to the issue o f the court\xe2\x80\x99s authority to\nappoint prosecutors, there is a separate question about whether the\ngovernment attorneys have authority to accept appointment. The Com\xc2\xad\nmission is a creation of statute and thus must abide by the statutory lim\xc2\xad\nitations on the authority. See Civil Aeronautics Bd. v. Delta Air Lines,\n367 U.S. 316, 322 (1961); Oceanair of Florida v. United States Dep\xe2\x80\x99t of\n298\n\n\x0cTransp., 876 F.2d 1560, 1565 (11th Cir. 1989). Prosecution o f criminal\ncontempts by Commission attorneys at the behest o f a court would\ncircumvent the Congressional determination to limit the Commission\xe2\x80\x99s\nauthority to civil actions.11\n\nIV.\nWe conclude that the Commission has no authority to bring actions for\ncriminal contempt. Commission lawyers, however, may be appointed\nspecial attorneys subject to the Attorney General\xe2\x80\x99s direction, 28 U.S.C. \xc2\xa7\n515, and in that capacity could conduct prosecutions for criminal con\xc2\xad\ntempt in cases where the court had appointed the United States Attorney\nto prosecute.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice of Legal Counsel\n\n11 We do not believe that the judiciary would have the constitutional authonty to assign governmental\nattorneys to prosecute cnminal contempts in contravention o f limits on their statutory authonty Vuitton\nsustained the appointment o f pnvate attorneys to prosecute cnminal contempts, because a court\xe2\x80\x99s power\nto \xe2\x80\x9cpunish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a\nmeans to vindicate its own authonty without complete dependence on other Branches \xe2\x80\x9d Vuitton, 481\nU S at 796 Although the power o f courts to vindicate their own authority, under the circumstances in\nVuitton, arguably may be grounded in the Constitution, appointment o f Commission attorneys hardly\npromotes judicial freedom from \xe2\x80\x9ccomplete dependence on other Branches.\xe2\x80\x9d\n\n299\n\n\x0c'


b'Enforcement of INA Employer Sanctions Provisions Against\nFederal Government Entities\nSection 274A o f the Im m igration and N ationality Act, which establishes em ployer verification require\xc2\xad\nm ents and authorizes the Im m igration and N aturalization Service to take enforcem ent actions\nagainst em ployers fo r failure to com ply with those requirem ents, authorizes im position o f em ployer\nsanctions against federal governm ent entities.\nT he INS can exercise this enforcem ent authority against persons and entities within all three branches\no f the federal governm ent in a m anner consistent with the C onstitution.\n\nMarch 15, 2000\nM\n\nem orandum\n\nO p in io n\n\nI m m ig r a t i o n\n\nand\n\nfo r th e\n\nG en era l C o u n sel\n\nN a t u r a l iz a t io n S e r v ic e\n\nYou have requested our advice as to whether section 274A of the Immigration\nand Nationality Act (\xe2\x80\x9c INA\xe2\x80\x9d ), which establishes employer verification require\xc2\xad\nments and authorizes the Immigration and Naturalization Service (\xe2\x80\x9c INS\xe2\x80\x9d ) to take\nenforcement action against employers for failure to comply with those require\xc2\xad\nments, can be applied to federal government entities, in light of the possible con\xc2\xad\nstitutional concerns that such enforcement action might raise. As we explain more\nfully below, we believe that section 274A clearly contemplates the imposition\nof employer sanctions against federal government entities. Moreover, with respect\nto employers within all three branches, we conclude that the INS can exercise\nits authority to take enforcement actions against such persons or entities consistent\nwith the Constitution.\nBACKGROUND\nSection 274A of the INA provides for the assessment of civil monetary penalties\nand cease and desist orders against any \xe2\x80\x9c person or other entity\xe2\x80\x9d who has know\xc2\xad\ningly hired, or knowingly continued to employ, any unauthorized alien or who\nhas failed to comply with the employment verification system mandated by section\n274A(b).\' 8 U.S.C. \xc2\xa7\xc2\xa7 1324a(e)(4Me)(5) (1994 & Supp. II 1996). As used in\nsection 274A, the term \xe2\x80\x9c entity\xe2\x80\x9d includes \xe2\x80\x9c an entity in any branch of the Federal\nGovernment.\xe2\x80\x9d Id. \xc2\xa7 1324a(a)(7).\nThe INS has the authority to investigate complaints of potential violations of\nsection 274A by inspecting employment eligibility verification forms maintained\nby employers and compelling the production of evidence or the attendance of\nwitnesses by subpoena. Id. \xc2\xa7 1324a(e)(2). If, based upon such an investigation,\nthe INS determines that an employer has violated section 274A, it serves a Notice\n1 Criminal penalties and injunctive relief may also be imposed against persons or entities engaged in a \xe2\x80\x9c pattern\nor practice o f violations\xe2\x80\x9d of section 274A. See 8 U.S C. \xc2\xa7 1324a(f)( 1M 2 )\n\n33\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\no f Intent to Fine ( \xe2\x80\x9c NTF\xe2\x80\x9d ) on the employer. 8 C.F.R. \xc2\xa7 274a.9 (1998). An employer\nserved with a NIF may request an evidentiary hearing before an Administrative\nLaw Judge ( \xe2\x80\x9c ALJ\xe2\x80\x9d ). 8 U.S.C. \xc2\xa7 1324a(e)(3). If the employer does not request\na hearing, the NIF becomes a final, unappealable order, id.\\ if a hearing is\nrequested, the ALJ\xe2\x80\x99s subsequent decision and order become the final decision and\norder of the Attorney General, unless a reviewing official or the Attorney General\nherself modifies or vacates the order, pursuant to regulations. See id. \xc2\xa7 1324a(e)(7).\nSection 274A also provides for judicial review and judicial enforcement of final\norders. Under section 274A(e)(8), \xe2\x80\x9c [a] person or entity adversely affected by a\nfinal order respecting an assessment may, within 45 days after the date the final\norder is issued, file a petition in the Court of Appeals for the appropriate circuit\nfor review of the order.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1324a(e)(8). If a person or entity refuses\nto comply with any final order, the statute provides that \xe2\x80\x9c the Attorney General\nshall file a suit to seek compliance with the order in any appropriate district court\nof the United States.\xe2\x80\x9d Id. \xc2\xa7 1324a(e)(9).\nDISCUSSION\nAs noted above, section 274A authorizes the INS to assess civil monetary pen\xc2\xad\nalties against any \xe2\x80\x9c person or other entity\xe2\x80\x9d that violates the employment\nverification provisions of that section. Section 274A(a)(7) provides: \xe2\x80\x9c For purposes\nof this section, the term \xe2\x80\x98entity\xe2\x80\x99 includes an entity in any branch of the Federal\nGovernment.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1324a(a)(7).\nWe must first determine whether Congress intended to authorize the INS to\nassess administrative penalties and otherwise bring enforcement proceedings\nagainst governmental employers. A straightforward reading of the statutory text\nleads us to conclude that that was clearly Congress\xe2\x80\x99s intent. Prior to passage of\nthe Illegal Immigration Reform and Immigrant Responsibility Act of 1996\n( \xe2\x80\x9c IIRIRA\xe2\x80\x9d ), Pub. L. No. 104-208, 110 Stat. 3009-546, section 274A contained\nno provision defining the scope of the term \xe2\x80\x9c entity.\xe2\x80\x9d In fact, this Office deter\xc2\xad\nmined in 1992 that the absence at that time of any definition of the phrase \xe2\x80\x9c person\nor other entity\xe2\x80\x9d from the INA, together with the lack of evidence that Congress\nintended the phrase to include federal agencies, precluded application of the term\n\xe2\x80\x9c entity\xe2\x80\x9d to a federal government agency in the context of the employer antidiscrimination provision of section 274B. See Enforcement Jurisdiction o f the Spe\xc2\xad\ncial Counsel fo r Immigration Related Unfair Employment Practices, 16 Op.\nO.L.C. 121, 123-24 (1992).\nIn 1996, Congress amended section 274A to make clear that the term \xe2\x80\x9c entity\xe2\x80\x9d\ndid apply to federal government entities. Section 412(d) of IIRIRA added new\nsubparagraph 274A(a)(7) to the INA:\n34\n\n\x0cEnforcement o f INA Employer Sanctions Provisions Against Federal Government Entities\n\n\xe2\x80\x9c Application to Federal Government \xe2\x80\x94 For purposes of this sec\xc2\xad\ntion, the term \xe2\x80\x98entity\xe2\x80\x99 includes an entity in any branch of the Fed\xc2\xad\neral Government.\xe2\x80\x9d\n8 U.S.C. \xc2\xa7 1324a(a)(7). We believe the language of that provision is manifest:\nfor purposes of section 274A, the term \xe2\x80\x9c entity\xe2\x80\x9d applies to all federal government\nemployers, including agencies within the executive, judicial and legislative\nbranches. The House Conference Report accompanying IIRIRA confirms our\nreading of section 412(d): \xe2\x80\x9c This provision clarifies that the Federal government\nmust comply with section 274A of the Immigration and Nationality Act . . . .\xe2\x80\x9d\nH.R. Conf. Rep. No. 104\xe2\x80\x94828, at 237 (1996). The plain text of the statute, together\nwith its legislative history, thus leaves no question as to Congress\xe2\x80\x99s intent that\nfederal government entities be covered by section 274A, including the investiga\xc2\xad\ntion, assessment and enforcement provisions of section 274A(e).\nHaving concluded that Congress intended to authorize the INS to assess civil\npenalties and bring enforcement actions against other governmental employers,\nwe further conclude that the INS can exercise that authority consistent with the\nConstitution. Because different constitutional issues are raised by INS enforcement\nof section 274A against executive agencies, the judiciary, and Congress, we will\nseparately address application of the statute to each branch.\nEnforcement Actions Against Executive Branch Agencies\n\nThe President has authority under Article II of the Constitution to supervise\nthe executive branch, which includes the authority to resolve disputes within that\nbranch. Authorizing the INS to assess civil penalties against other agencies does\nnot give rise to a constitutional problem under Article II. The critical point is\nthat the INA \xe2\x80\x9c does not preclude the President from authorizing any process he\nchooses to resolve disputes between [the INS] and other federal agencies regarding\nthe assessment of administrative penalties.\xe2\x80\x9d Administrative Assessment o f Civil\nPenalties Against Federal Agencies Under the Clean A ir Act, 21 Op. O.L.C. 109,\n116 (1997) (\xe2\x80\x9c EPA Opinion\xe2\x80\x9d ). Under section 274A, any agency that disputes an\nINS assessment has the opportunity to voice its objections in an administrative\nhearing before an ALJ, whose decision is subject to review by the Attorney Gen\xc2\xad\neral or her delegate. 8 U.S.C. \xc2\xa7 1324a(e)(7). There is no limitation in the statute\non the President\xe2\x80\x99s authority to review the matter if he chooses to do so, and the\nabsence of any such restriction on his discretion is dispositive. EPA Opinion, 21\nOp. O.L.C. at 116.\nIn the context of one federal executive agency assessing civil penalties against\nanother, the statutory provision of judicial procedures to enforce those penalties\nalso might be thought to raise constitutional concerns related to the Article III\nlimitation on the jurisdiction of the federal courts to actual cases and controversies.\n35\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nThe civil action provisions contained in sections 274A(e)(8) and (9) might be\nconstrued to suggest that one executive branch agency may sue another in federal\ncourt over an administrative penalty. This Office has consistently held that \xe2\x80\x9c \xe2\x80\x98law\xc2\xad\nsuits between two federal agencies are not generally justiciable.\xe2\x80\x99 \xe2\x80\x9d EPA Opinion,\n21 Op. O.L.C. at 111 (quoting Constitutionality o f Nuclear Regulatory Commis\xc2\xad\nsion \xe2\x80\x99s Imposition o f C ivil Penalties on the A ir Force, 13 Op. O.L.C. 131, 138\n(1989)). Federal courts may adjudicate only actual cases and controversies, and\na lawsuit involving the same party as both plaintiff and defendant \xe2\x80\x94 which would\ngenerally be the result if one executive agency sued another \xe2\x80\x94 does not constitute\nan actual controversy.\nHowever, in practice, such a scenario would not arise, for the internal executive\nbranch dispute-resolution process described above would either obviate the need\nfor a final administrative order or preclude noncompliance with such an order.\nIn the event o f any dispute between INS and another executive agency as to a\ncivil penalty assessment, the President, as head of the executive branch, has the\nauthority either to direct the Attorney General not to impose a final order or to\norder the agency to comply with such an order. In either case, the judicial review\nprovisions of sections 274A(e)(8) and (9) simply would not be triggered.2\nEnforcement Actions Against the Judiciary\n\nAs noted above, the definition o f \xe2\x80\x9c person or other entity\xe2\x80\x9d applies to the judicial\nbranch, as well as to the legislative and executive branches. Application of section\n274A to the judiciary raises questions concerning the possible assertion of judicial\nimmunity.\nW e do not believe that any plausible claim of judicial immunity from section\n274A could be made in the wake of Forrester v. White, 484 U.S. 219 (1988).\nIn F orrester, the Supreme Court concluded that questions regarding the scope\no f absolute judicial immunity must be evaluated in light of the purposes served\nby such immunity. Id. at 226-27. That \xe2\x80\x9c functional approach\xe2\x80\x9d looks at the nature\no f the official functions exercised and evaluates \xe2\x80\x9c the effect that exposure to par\xc2\xad\nticular forms of liability would likely have on the appropriate exercise of those\nfunctions.\xe2\x80\x9d Id. at 224. The Court in Forrester applied the functional approach\nto reject a judge\xe2\x80\x99s claim of absolute immunity from civil liability for his decision\nto demote and discharge a probation officer. In doing so, the Court distinguished\nbetween \xe2\x80\x9cjudicial acts\xe2\x80\x9d and \xe2\x80\x9c the administrative, legislative, or executive func\xc2\xad\ntions that judges may on occasion be assigned by law to perform.\xe2\x80\x9d Id. at 227.\nIt reasoned that, with respect to the latter category, the danger of \xe2\x80\x9c officials\xe2\x80\x99 being\ndeflected from the effective performance o f their duties\xe2\x80\x9d was not substantial\nenough to warrant absolute immunity. Id. at 230. The Court held that administra\xc2\xad\n2 Indeed, the Executive Branch has various procedures in place to avoid litigation and promote internal dispute\nresolution See, e g , Exec. O rder No 12146, 3 C.F R. 409 (1979)\n\n36\n\n\x0cEnforcement o f INA Employer Sanctions Provisions Against Federal Government Entities\n\ntive decisions, including personnel decisions, are not regarded as judicial acts and\nthus are not immunized \xe2\x80\x9c even though they may be essential to the very func\xc2\xad\ntioning of the courts.\xe2\x80\x9d Id. at 228.\nForrester\'s holding makes clear that personnel decisions such as those that are\nthe subject of section 274A enforcement actions do not warrant absolute judicial\nimmunity. Such actions fall into the category of \xe2\x80\x9c administrative, legislative, or\nexecutive functions\xe2\x80\x9d that a judge might perform, rather than \xe2\x80\x9cjudicial acts\xe2\x80\x9d that\nmerit the protection offered by absolute immunity.\nNor do we see any separation of powers problem with executive enforcement\nof section 274A against the judiciary. The Supreme Court has made clear that\nnot all interactions between the judiciary and the executive branches, even those\nthat might be categorized as \xe2\x80\x9c quite burdensome,\xe2\x80\x9d are necessarily constitutionally\nforbidden. Clinton v. Jones, 520 U.S. 681, 702 (1997). It is only where the burden\nimposed by one branch is so onerous as to \xe2\x80\x9c impair another in the performance\nof its constitutional duties\xe2\x80\x9d that the general separation of powers principle is vio\xc2\xad\nlated. Id. at 701 (citing Loving v. United States, 517 U.S. 748 (1996)). Although\nan enforcement action under section 274A would impose some administrative bur\xc2\xad\ndens upon its subject \xe2\x80\x94 to the extent, for example, that it required compliance\nwith subpoenas issued or cooperation with investigative efforts \xe2\x80\x94 such burdens\nwould certainly not be so demanding as to interfere with the judiciary\xe2\x80\x99s proper\nexecution of its constitutional obligations. See Mistretta v. United States, 488 U.S.\n361, 409 (1989) (President\xe2\x80\x99s appointment and removal power over federal Sen\xc2\xad\ntencing Commission does not \xe2\x80\x9c prevent[], even potentially, the Judicial Branch\nfrom performing its constitutionally assigned functions\xe2\x80\x9d ).\nIndeed, in the context of criminal law enforcement, courts have consistently\nupheld the power of the executive branch to prosecute sitting judges, notwith\xc2\xad\nstanding the more significant intrusion upon the judiciary occasioned by such\nenforcement, and have rejected the judges\xe2\x80\x99 claims that such executive action\nundermines judicial autonomy. See, e.g., United States v. Claiborne, 727 F.2d\n842, 8 4 5 ^ 9 (9th Cir. 1984); United States v. Hastings, 681 F.2d 706, 709-11\n(11th Cir. 1982); United States v. Isaacs, 493 F.2d 1124, 1 1 4 2 ^4 (7th Cir.), cert,\ndenied, 417 U.S. 976 (1974). As the court in Hastings explained in rejecting a\nrule that would have granted sitting federal judges immunity from criminal\nprosecution: \xe2\x80\x9c [T]he minuscule increment in judicial independence that might be\nderived from the proposed rule would be outweighed by the tremendous harm\nthat the rule would cause to another treasured value of our constitutional system:\nno man in this country is so high that he is above the law.\xe2\x80\x9d 681 F.2d at 711.\nIf executive enforcement of the criminal laws against the judiciary (which could\ninclude indictment, prosecution, and imprisonment of a sitting judge) does not\nundermine judicial independence, we cannot say that the comparatively negligible\nintrusion upon the judiciary that might be occasioned by executive enforcement\nof section 274A is a threat to judicial autonomy.\n37\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nEnforcement Actions A gainst Congress\n\nFor similar reasons, we see no general separation of powers problem with\napplying section 274A against Congress. The more significant question is whether\nenforcement actions may be initiated against Members of Congress or congres\xc2\xad\nsional offices consistent with the legislative immunity accorded by the Speech\nor Debate Clause of the Constitution.3 The Speech or Debate Clause provides\nthat, \xe2\x80\x9c for any Speech or Debate in either House, [Senators and Representatives]\nshall not be questioned in any other Place.\xe2\x80\x9d U.S. Const, art. I, \xc2\xa76, cl. 1.\nIn interpreting the Speech or Debate Clause, the Supreme Court has not confined\nits protections literally to \xe2\x80\x9c Speech or Debate in either House\xe2\x80\x9d but has given it\n\xe2\x80\x9c a practical rather than a strictly literal reading which would limit the protection\nto utterances made within the four walls of either Chamber.\xe2\x80\x9d Hutchinson v. Proxmire, 443 U.S. I l l , 124 (1979). Thus, in United States v. Johnson , 383 U.S.\n169 (1966), the Court foreclosed prosecution of a Member of the House of Rep\xc2\xad\nresentatives for allegedly taking a bribe in return for delivering a speech on the\nfloor of the House. The indictment necessarily focused upon both Johnson\xe2\x80\x99s\nmotives in making the speech and the contents of the speech itself, and the Court\nconcluded that the Congressman\xe2\x80\x99s motive \xe2\x80\x9c is precisely what the Speech or Debate\nClause generally forecloses from executive and judicial inquiry.\xe2\x80\x9d Id. at 180. In\nholding Johnson immune from prosecution under the Speech or Debate Clause,\nhowever, the Court emphasized that its holding was limited to the facts before\nit, and reserved the question whether Speech or Debate immunity would preclude\n\xe2\x80\x9c a prosecution which, though as here founded on a criminal statute of general\napplication, does not draw in question the legislative acts of the defendant member\nof Congress or his motives for performing them.\xe2\x80\x9d Id. at 185.\nSix years later, in United States v. Brewster, 408 U.S. 501 (1972), the Supreme\nCourt resolved that question by holding that Speech or Debate immunity did not\nbar prosecution of a member of Congress for soliciting and receiving sums of\nmoney in return for \xe2\x80\x98 \xe2\x80\x98official acts performed by him in respect to his action, vote\nand decision\xe2\x80\x9d on proposed postal rate legislation, where the Member could\nsuccessfully be prosecuted without inquiry into either legislative acts or their moti\xc2\xad\nvation:\nThe question is whether it is necessary to inquire into how\nappellee spoke, how he debated, how he voted, or anything he did\nin the chamber or in committee in order to make out a violation\n3 With respect to the applicability o f section 274A against Congress, we will here address only the general question\no f the availability o f speech and debate immunity W e do not address the more specific question of who the proper\ndefendant may be in individual enforcement actions. W e also do not address the question w hether the constitutional\nprivilege against arrest except in cases o f \xe2\x80\x9c Treason, Felony and Breach of the Peace\xe2\x80\x9d that is accorded Members\nduring sessions o f Congress would preclude enforcing a subpoena in an administrative proceeding against a Member\nwhile C ongress is in session U S Const art 1, \xc2\xa7 6 , cl. 1. See Gravel v. United States, 408 U S . 606, 614-15\n(1972).\n\n38\n\n\x0cEnforcement o f INA Employer Sanctions Provisions Against Federal Government Entities\n\nof this statute. The illegal conduct is taking or agreeing to take\nmoney for a promise to act in a certain way. There is no need\nfor the Government to show that appellee fulfilled the alleged\nillegal bargain; acceptance of the bribe is the violation of the\nstatute, not performance of the illegal promise.\nTaking a bribe is, obviously, no part of the legislative process\nor function; it is not a legislative act. . . . Nor is inquiry into a\nlegislative act or the motivation for a legislative act necessary to\na prosecution under this statute or this indictment.\nId. at 526.\n\nAccordingly, the Court in Brewster confirmed that the Clause does not protect\nall conduct relating in any way to the legislative process, but is \xe2\x80\x9c limited to an\nact which was clearly a part of the legislative process \xe2\x80\x94 the due functioning of\nthe process.\xe2\x80\x9d Id. at 515-16 (emphasis in original). Proper attention to the history\nand purposes of the Clause, including the underlying separation of powers con\xc2\xad\ncerns, did not justify a broader reading:\nWe would not think it sound or wise, simply out of an abundance\nof caution to doubly insure legislative independence, to extend the\nprivilege beyond its intended scope, its literal language, and its his\xc2\xad\ntory, to include all things in any way related to the legislative\nprocess. Given such a sweeping reading, we have no doubt that\nthere are few activities in which a legislator engages that he would\nbe unable somehow to \xe2\x80\x9c relate\xe2\x80\x9d to the legislative process.\nId. at 516.\n\nThe Court further clarified the proper scope of the Speech or Debate Clause\nin Gravel v. United States, 408 U.S. 606 (1972), decided the same day as\nBrewster. Senator Gravel made copies of the Pentagon Papers part of the public\nrecord of a meeting of the Senate subcommittee that he chaired. Subsequently,\nthe press reported that Senator Gravel had separately made arrangements with\na private press to publish the papers. A federal grand jury that was investigating\nalleged criminal conduct with respect to the public disclosure of these classified\ndocuments subpoenaed Senator Gravel\xe2\x80\x99s aide to testify, and Senator Gravel sought\nto quash the subpoena under the Speech or Debate Clause.4 Id. at 608-09. The\nCourt held that the action under scrutiny \xe2\x80\x94 the publication by a nongovernmental\n4 The Court concluded that \xe2\x80\x9c the Speech or Debate Clause applies not only to a M ember [of Congress] but also\nto his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member\nhimself \xe2\x80\x9d Id at 618\n\n39\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\npress of classified documents \xe2\x80\x94 was not \xe2\x80\x9c protected speech or debate within the\nmeaning of Art. I, \xc2\xa7 6, cl. 1 of the Constitution.\xe2\x80\x9d Id. at 622.\nThe Court began its analysis by noting that simply because \xe2\x80\x9c Senators generally\nperform certain acts in their official capacity as Senators does not necessarily\nmake all such acts legislative in nature.\xe2\x80\x9d Id. at 625. It then explained:\nThe heart of the Clause is speech or debate in either House. Insofar\nas the Clause is construed to reach other matters, they must be an\nintegral part of the deliberative and communicative processes by\nwhich Members participate in committee and House proceedings\nwith respect to the consideration and passage or rejection of pro\xc2\xad\nposed legislation or with respect to other matters which the Con\xc2\xad\nstitution places within the jurisdiction o f either House.\nId. The hearings were complete and the record of the hearings was available.\n\nSubsequent publication of the Pentagon Papers by a nonprofit press was neither\nrequested nor authorized by the Senate and \xe2\x80\x98 \xe2\x80\x98was in no way essential to the delib\xc2\xad\nerations of the Senate.\xe2\x80\x9d Id. Because questioning regarding that publication did\nnot \xe2\x80\x9c threaten the integrity or independence of the Senate by impermissibly\nexposing its deliberations to executive influence,\xe2\x80\x9d the Court determined that this\nconduct was not protected by the Speech or Debate Clause. Id.\nAlthough the Supreme Court has thus delineated the general scope of Speech\nor Debate immunity, it has not yet resolved the question of its applicability to\nemployment-related decisions. In Davis v. Passman, 442 U.S. 228 (1979), the\nCourt specifically reserved the question whether a Congressman\xe2\x80\x99s allegedly\ndiscriminatory decision to fire his administrative assistant was shielded by the\nclause. Id. at 236 n .l l , 248-49. Two courts of appeals, however, have addressed\nthis issue.\nIn the original panel decision in D avis,5 the Fifth Circuit determined that the\nSpeech or Debate Clause did not protect a Congressman from a suit by a former\naide who alleged that the Congressman unconstitutionally discriminated against\nher on the basis of her sex when he dismissed her. 544 F.2d 865, 878 (5th Cir.\n1977), r e v \xe2\x80\x99d on other grounds, 571 F.2d 793 (1978) (en banc), rev\xe2\x80\x99d, 442 U.S.\n228 (1979). The Senator had written the aide a letter commending her job perform\xc2\xad\nance, but concluding that it was \xe2\x80\x98\xe2\x80\x98essential that the understudy to [his] Administra\xc2\xad\n5 The onginal panel decision m Davis w as the only decision in the history of lhat case to address the Speech\nor Debate Clause issue. The Fifth Circuit, in its en banc opinion, did not reach the Speech or Debate Clause question\nbecause it concluded that the plaintiff could not maintain a private cause of action under the due process clause\nof the Fifth Amendment. Davis v Passman, 571 F.2d 793, 801 (5th C ir 1978). The Supreme Court reversed on\nthat question, holding that both a cause o f action and a damages remedy could be implied under the Fifth Amendment,\nhowever, because the en banc Court of A ppeals had not considered the Speech or Debate Clause issue, the Supreme\nCourt also declined to reach it Davis, 442 U.S at 236 n i l , 248-49\n\n40\n\n\x0cEnforcement o f INA Employer Sanctions Provisions Against Federal Government Entities\n\ntive Assistant be a man.\xe2\x80\x9d Id. at 867 n.l. Reciting familiar passages from Gravel\nthat limit the scope of the clause to \xe2\x80\x9c legislative acts,\xe2\x80\x9d the panel concluded:\n[Representatives are not immune from inquiry into their decisions\nto dismiss staff members. Such dismissal decisions certainly are not\n\xe2\x80\x9c an integral part of the deliberative and communicative processes\nby which Members participate in committee and House proceedings\n. . . .\xe2\x80\x9d [quoting Gravel, 408 U.S. at 625]. Peripheral or tangential\nactivities of a representative must not be confused with the legisla\xc2\xad\ntive core. . . . When members of Congress dismiss employees they\nare neither legislating nor formulating legislation. The fear of\njudicial inquiry into dismissal decisions cannot possibly affect a\nlegislator\xe2\x80\x99s decisions on matters pending before Congress. The\ndemocratic process remains unfettered.\nId. at 880. Its holding, the panel believed, \xe2\x80\x9c g[a]ve effect to the Supreme Court\xe2\x80\x99s\nmandate in Gravel. \xe2\x80\x98Legislators ought not to stand above the law they create but\nought generally to be bound by it as are ordinary persons.\xe2\x80\x99 \xe2\x80\x9d Id. at 881 (quoting\nGravel, 408 U.S. at 615). Because exceptions to the constitutional premise that\n\nall persons are equal before the law \xe2\x80\x9c must be limited, guarded, and sparingly\nemployed,\xe2\x80\x9d the court insisted that \xe2\x80\x9c Davis is entitled to have her claim heard\non the merits.\xe2\x80\x9d Id.\nThe Court of Appeals for the District of Columbia Circuit concluded almost\na decade later, however, that legislative immunity did shield a Congressman from\na suit challenging an employment decision. Browning v. Clerk, U.S. House o f\nRepresentatives, 789 F.2d 923 (D.C. Cir.), cert, denied, 479 U.S. 996 (1986). In\nBrowning, a black woman who was discharged from her job as Official Reporter\nof the House of Representatives claimed that her dismissal was racially motivated,\nin violation of the Fifth Amendment. 789 F.2d at 924-25. The court, relying on\nGravel, asserted that:\nPersonnel decisions are an integral part of the legislative process\nto the same extent that the affected employee\xe2\x80\x99s duties are an\nintegral part of the legislative process. . . . Thus, if the employee\xe2\x80\x99s\nduties are an integral part of the legislative process, such that they\nare directly assisting members o f Congress in the \xe2\x80\x9c discharge of\ntheir functions,\xe2\x80\x9d personnel decisions affecting them are correspond\xc2\xad\ningly legislative and shielded from judicial scrutiny.\nId. at 928-29 (citation omitted). Applying this standard, the court discussed at\n\nlength the importance of the role of an Official Reporter in the communicative\nand deliberative processes of Congress, and concluded that such reporting was\n41\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nindeed an integral part of legislative functioning. Id. at 929-30. In coming to\nthis conclusion, the court pointed out that, in order to resolve Browning\xe2\x80\x99s claims,\nthe judiciary\nwould necessarily have to inquire about matters at the very heart\nof the legislative process, such as the nature of the hearings to\nwhich Browning was assigned, the purposes underlying those\nhearings, and whether Browning\xe2\x80\x99s performance frustrated those pur\xc2\xad\nposes.\nId. at 930.\n\nThere are two ways to read the decision in Browning. First, Browning could\nbe read for the proposition that, in determining whether Speech or Debate immu\xc2\xad\nnity attaches to any particular employment decision, the proper focus is whether\njudicial scrutiny of that decision would necessitate any inquiry into legislative\nconduct or motivations. If so, then the employment decision relates sufficiently\nto the legislative process to merit immunity. See id.; see also House of Representa\xc2\xad\ntives\xe2\x80\x99 Brief in Opposition to Petition for Certiorari, Browning v. Clerk, House\no f Representatives (No. 86-547), at 5. Alternatively, Browning could be read more\nbroadly, to suggest that the applicability of Speech or Debate immunity in the\nemployment context depends solely upon the nature of the employment at issue.\nIf the employee\xe2\x80\x99s duties can be said to be an \xe2\x80\x9c integral part of the legislative\nprocess,\xe2\x80\x9d immunity attaches to any personnel decisions regarding that employee;\nif the employee\xe2\x80\x99s duties cannot be so characterized, it does not. Browning, 789\nF.2d at 929.\nWhile we acknowledge that there is language in Browning to support the second\nreading that focuses on employment duties, Supreme Court Speech and Debate\nprecedents, as well as the specific facts of Browning, compel our conclusion that\nthe decision must be read more narrowly.6 Under G ravel and Brewster, the mere\n6 W e note too that there is some question w hether and how the Supreme C ourt\xe2\x80\x99s ruling in Forrester v. White\nbears on Browning As noted above, Forrester requires a \xe2\x80\x9c functional\xe2\x80\x9d approach to claims of absolute judicial immu\xc2\xad\nnity in the context o f employment decisions. T h e distinction that Forrester makes between \xe2\x80\x9c judicial acts\xe2\x80\x9d and\n\xe2\x80\x9c the administrative, legislative, or executive functions that judges may occasionally be assigned by law to perform\xe2\x80\x9d\nis based on the rationale that, with respect to the latter category, the danger of \xe2\x80\x9c officials\xe2\x80\x99 being deflected from\nthe effective performance o f their duties\xe2\x80\x9d is not substantial enough to warrant absolute immunity Forrester, 484\nU S. at 230. That rationale could be applied equally to the administrative functions of the legislative branch, such\nas hiring o f personnel, and verification that they are not unauthorized aliens.\nIn the wake o f Forrester, the District of C olum bia Circuit, in Gross v Winter, 876 F 2 d 165 (D C . Cir. 1989),\napplied Forrester\'s functional approach in rejecting a D C. Council m ember\xe2\x80\x99s claim of legislative immunity for\nher allegedly discriminatory decision to fire a probation officer Gross recognized that \xe2\x80\x9c [tjhe Supreme Court\xe2\x80\x99s strict\n\xe2\x80\x98functional\xe2\x80\x99 immunity analysis in Forrester . contrasts with the employee-centnc approach this court took in\nB row ning." Id at 171 The court found Forrester, not Browning, controlling\'\nThe functions o f probation officers and legislative aides are therefore equally important to the due func\xc2\xad\ntioning o f the judicial and legislative processes, respectively Nonetheless, under Forrester, the functions\njudges and legislators exercise in making personnel decisions affecting such employees are administrative,\nnot judicial or legislative. Forrester\'s functional approach also forecloses the somewhat curious logic that\nthe greater the em ployee\xe2\x80\x99s importance to the legislative process the greater should be the state legislator\xe2\x80\x99s\nfreedom to violate that em ployee\xe2\x80\x99s constitutional rights\n\n42\n\n\x0cEnforcement o f INA Employer Sanctions Provisions Against Federal Government Entities\n\nfact that an individual may have some duties that relate to core legislative proc\xc2\xad\nesses does not make all matters bearing on that person\xe2\x80\x99s employment \xe2\x80\x9c an integral\npart of the deliberative and communicative processes by which Members partici\xc2\xad\npate in committee and House proceedings with respect to the consideration and\npassage or rejection of proposed legislation or with respect to other matters which\nthe Constitution places within the jurisdiction of either House.\xe2\x80\x9d Gravel, 408 U.S.\nat 625. As the Court noted in Brewster, in a passage relied upon in Browning:\n\xe2\x80\x9c The only reasonable reading of the Clause, consistent with its history and pur\xc2\xad\npose, is that it does not prohibit inquiry into activities that are casually or inciden\xc2\xad\ntally related to legislative affairs but not a part of the legislative process itself.\xe2\x80\x9d\nId. at 528, quoted in 789 F.2d at 927. Under that standard, even if a particular\nemployee\xe2\x80\x99s duties could be said to relate to the legislative process, there might\nbe any number of purely administrative decisions made with respect to that\nemployee that would have nothing to do with the employee\xe2\x80\x99s fulfillment of his\nor her duties and that therefore would not merit legislative immunity.7\nThe Speech or Debate Clause arguably was implicated in Browning not because\nthe job of official reporter for the House of Representatives included duties that\nwere integral to the legislative process, 789 F.2d at 928, but because the disputed\nfactual issue in the employment claim was whether the reporter was fired for\npoor job performance or for racial reasons. Id. at 930. We believe that the more\nsweeping language in Browning must be read in light of those facts. The District\nof Columbia Circuit court concluded that the particular employment decision at\nissue in Browning presented a risk of judicial second-guessing of judgments \xe2\x80\x9c at\nthe very heart of the legislative process.\xe2\x80\x9d Id. at 930. Legislative immunity was\nwarranted in Browning, on the narrower view, because assessing the adequacy\nof Browning\xe2\x80\x99s job performance would have required the trial court to \xe2\x80\x9c inquire\ninto matters at the very heart of the legislative process\xe2\x80\x9d \xe2\x80\x94 such as the nature\nand purpose of the hearings to which Browning had been assigned. Id.\nIn contrast, permitting the INS to enforce section 274A against Congress would\nnot, thwart any of the purposes underlying the Speech or Debate Clause, for\nId at 172 However, in applying Forrester to a case involving a D.C. Council member rather than a M ember of\nCongress, the court in Gross expressly noted that it was not reaching the question \xe2\x80\x9c whether special considerations\napplicable to members of Congress, such as separation-of-powers concerns, continue to justify the absolute immunity\nstandard for congressional personnel decisions adopted in Brow ning." Id More recently, in United States v. Rostenkowski, 59 F.3d 1291, 1303 (D.C. Cir 1995), the District o f Columbia Circuit again reserved the question whether\nBrowning remained good law after Forrester, because the employees at issue lacked \xe2\x80\x9c even the most tangential\nrelationship to the \xe2\x80\x98legislative process\xe2\x80\x99 \xe2\x80\x9d and employment decisions respecting them thus could not be immunized\neven under the broadest reading of Browning.\n7 The broader reading o f Browning is out of step not only with the Supreme Court\xe2\x80\x99s precedents, but also with\nthe District o f Columbia Circuit\xe2\x80\x99s own pnor law The Browning court appeared to misread an earlier decision, Walker\nv. Jones, 733 F.2d 923 (D.C Cir 1984), in which the court denied Speech or Debate Clause immunity to congres\xc2\xad\nsional defendants who dismissed a food service manager for allegedly discriminatory reasons Id at 931. Browning\ncited Walker as the genesis o f a standard focusing on the nature o f the em ployee\xe2\x80\x99s duties, and immunizing all\npersonnel decisions with respect to employees whose duties closely relate to the legislative process Id at 925.\nIn fact, W alker\xe2\x80\x94 like Johnson, Brewster, and Gravel \xe2\x80\x94 properly focused directly on the legislator\xe2\x80\x99s actions, and\nconsidered the em ployee\xe2\x80\x99s duties only as potentially relevant to the question whether a personnel action regarding\nthat employee might implicate the legislator\xe2\x80\x99s motives Id\n\n43\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nexecutive enforcement would not involve inquiry into legislative acts or the\nmotives for legislative acts. Nor would it \xe2\x80\x9c threaten the integrity or independence\no f [Congress] by impermissibly exposing its deliberations to executive influence.\xe2\x80\x9d\nGravel, 408 U.S. at 625. Section 274A applies to the \xe2\x80\x9c hiring, recruiting, or refer\xc2\xad\nring\xe2\x80\x9d of individuals for employment in the United States, and requires employers\nto verify, by examining certain specified documents, that individuals being consid\xc2\xad\nered for employment are not unauthorized aliens. 8 U.S.C. \xc2\xa7 1324a(b), (b)(1).\nOnce the employer has examined these documents, the employer must attest in\nwriting to the verification and must retain the verification form for future inspec\xc2\xad\ntion. Id. \xc2\xa7 1324a(b)(l)(A), (b)(3). Any investigation by the INS as to whether an\nemployer has complied with these verification requirements or whether the\nemployer knowingly hired or continued to employ an unlawful alien thus would\nnot involve inquiry into the employee\xe2\x80\x99s duties or job performance. Rather, such\nan investigation would require examination of the verification form, and possibly\nthe circumstances surrounding the employer\xe2\x80\x99s execution of that form, including\nwhether the employer had complied in good faith with the attestation and docu\xc2\xad\nment retention requirements. Regardless of how integrally connected to the legisla\xc2\xad\ntive process the employee\xe2\x80\x99s duties might be, the actions of a Member of Congress,\nin complying with these verification requirements or in knowingly hiring an\nunlawful alien, could not be characterized as \xe2\x80\x9c legislative acts,\xe2\x80\x9d and any inquiry\ninto section 274A compliance would not reach such legislative acts or the motives\nunderlying them. The ministerial requirements imposed under section 274A are\nat most \xe2\x80\x9c casually or incidentally related to legislative affairs.\xe2\x80\x9d Brewster, 408 U.S.\nat 528. Like the conduct at issue in Brewster, knowingly hiring an unlawful alien\n\xe2\x80\x9c is, obviously, no part of the legislative process or function; it is not a legislative\nact.\xe2\x80\x9d Id. at 526. We therefore conclude that executive enforcement of section\n274A against legislative branch entities is not precluded by the Speech or Debate\nClause.\nCONCLUSION\nThe plain language of section 274A makes clear that its enforcement provisions\napply to persons and entities within all three branches of the federal government.\nWe conclude that the INS can exercise its enforcement authority under section\n274A against persons and entities within the executive, judicial, and legislative\nbranches in a manner consistent with the Constitution.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n44\n\n\x0c'