b'Applicability of the Emoluments Clause to\nNon-Government Members of ACUS\n\nT h e E m o lu m e n ts C la u se o f th e C o n stitu tio n p ro h ib its n o n -g o v e rn m e n t m e m b e rs o f the A d m in istra tiv e\nC o n fe re n c e o f th e U n ite d S ta te s from a c c e p tin g , a b se n t C o n g re s s \xe2\x80\x99s c o n se n t, a d is trib u tio n from\nth e ir p a rtn e rs h ip s th a t in c lu d e s som e p ro p o rtio n a te sh are o f th e re v e n u e s g e n e ra te d fro m the p a rt\xc2\xad\nn e rs h ip \xe2\x80\x99s fo re ig n g o v e rn m e n t clien ts\n\nN o n -g o v e rn m e n t m e m b e rs o f A C U S are a ls o g e n e ra lly fo rb id d e n , a b se n t C o n g re s s \xe2\x80\x99s c o n se n t, from\na c c e p tin g p a y m e n ts fro m c o m m e rc ial e n titie s o w n e d o r c o n tro lle d by fo re ig n g o v e rn m e n ts.\n\nO c to b e r 2 8 , 1993\n\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nA d m in is t r a t iv e C o n f e r e n c e o f t h e U n it e d S t a t e s\n\nThis memorandum responds to your request of July 30, 1993, which sought\nclarification of a portion of our April 29, 1991, letter to the Deputy Counsel to the\nPresident.1 Specifically, you raise two questions concerning the advice we gave on\nthat occasion concerning the scope and application of the Emoluments Clause, U.S.\nConst, art. I, \xc2\xa7 9, cl. 8. After noting that a significant number of the 101 members\nof the Administrative Conference (the \xe2\x80\x9cConference\xe2\x80\x9d or \xe2\x80\x9cACUS\xe2\x80\x9d) are lawyers in\nprivate practice, professors of law, or other experts in administrative law, you ask\nwhether the Emoluments Clause prevents service on the Conference by a private\nindividual who receives a partnership distribution from his or her firm that may\ninclude income received by the firm from a foreign government solely because of\nthe pooling of partnership revenues. Further, you ask whether the Clause prevents\nservice on the Conference by a private individual who receives payment from gov\xc2\xad\nernment-owned or controlled instrumentalities that do not engage in traditional\nfunctions \xe2\x80\x94 including, but not limited to, foreign public universities.\nI.\nCongress established the Conference \xe2\x80\x9cto provide suitable arrangements through,\nwhich Federal agencies, assisted by outside experts, may cooperatively study mu\xc2\xad\ntual problems, exchange information, and develop recommendations for action by\nproper authorities to the end that private rights may be fully protected and regula-\n\n1\nY o u r req u est is set forth in the L etter for D aniel K o ffsky, Esq., A cting A ssistant A ttorney G eneral,\nO ffice o f Legal C o u n sel, from Gary J E d les, G eneral C o u n sel, A dm inistrative C onference o f the U nited\nStates (Ju ly 30, 1993) (\xe2\x80\x9c A C U S Letter\xe2\x80\x9d). T h e opinion to w hich your letter refers is A p p lica b ility o f 18 U .S.C\n\xc2\xa7 2 1 9 to M em b ers o j F ed era l A dvisory C o m m ittees, 15 Op. O .L .C . 65 (1991) (\xe2\x80\x9c the A pril 1991 Opinion\'*)\n\n114\n\n\x0cA pplicability o f the Em olum ents Clause to N on-G overnm ent M em bers o f A C U S\n\ntory activities and other Federal responsibilities may be carried out expeditiously in\nthe public interest.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 591; see also Marshall J. Breger, The Administra\xc2\xad\ntive Conference o f the United States: A Quarter Century Perspective, 53 U. Pitt.\nL. Rev. 813, 814-19 (1992) (\xe2\x80\x9cBreger\xe2\x80\x9d) (discussing origins and purposes of\nACUS). \xe2\x80\x9cThe bulk of the Conference\xe2\x80\x99s work has been its research function and it\nis here that it has performed its most important role as a ventilator of new ideas in\nadministrative procedure.\xe2\x80\x9d Id. at 829. The Conference must transmit an annual\nreport to the President and Congress and such interim reports as the Chairman con\xc2\xad\nsiders desirable. See 5 U.S.C. \xc2\xa7 595(c). In addition, \xe2\x80\x9c[o]n a number of occasions,\nCongress has specifically mandated that the Conference undertake particular ac\xc2\xad\ntivities.\xe2\x80\x9d Breger at 835.\nThe Conference consists of not more than 101 nor fewer than 75 members, in\xc2\xad\ncluding a Chairman appointed by the President with the advice and consent of the\nSenate, the chairman (or designee) of each independent regulatory board or com\xc2\xad\nmission, the head (or designee) of each executive department or other administra\xc2\xad\ntive agency which is designated by the President, certain other governmental\nmembers, certain Presidential appointees, and \xe2\x80\x9cnot more than 40 other members\nappointed by the Chairman.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 593. The Chairman\xe2\x80\x99s appointees \xe2\x80\x9cmay at\nno time be less than one-third nor more than two-fifths of the total number of\nmembers.\xe2\x80\x9d Id. \xc2\xa7 593(b)(6). The Chairman is to select appointees \xe2\x80\x9cin a manner\nwhich will provide broad representation of the views of private citizens and utilize\ndiverse experience. The members shall be members of the practicing bar, scholars\nin the field of administrative law or government, or others specially informed by\nknowledge and experience with respect to Federal administrative procedure.\xe2\x80\x9d Id.\nApart from the Chairman, the members of the Conference are not entitled to\npayment for their services. 5 U.S.C. \xc2\xa7 593(c). Non-government members of the\nConference may be deemed to be special government employees within the mean\xc2\xad\ning of 18 U.S.C. \xc2\xa7 202 and subject to the provisions of 18 U.S.C. \xc2\xa7\xc2\xa7 201-224. See\n1 C.F.R. \xc2\xa7 302.5(a) (1993).\nThe membership of the Conference meeting in plenary session constitutes the\nAssembly. 5 U.S.C. \xc2\xa7 595(a). The Assembly has various powers, including that of\n\xe2\x80\x9cadopting] such recommendations as it considers appropriate for improving ad\xc2\xad\nministrative procedure.\xe2\x80\x9d Id. \xc2\xa7 595(a)(1). \xe2\x80\x9cConference recommendations and\nstatements are published in the Federal Register and then codified in the Code of\nFederal Regulations.\xe2\x80\x9d Breger at 827-28. \xe2\x80\x9cSince its establishment, the Confer\xc2\xad\nence\xe2\x80\x99s recommendations have had a significant effect on the workings of the fed\xc2\xad\neral government.\xe2\x80\x9d Id. at 831.\nThe Conference includes a Council composed of the Chairman and ten other\nmembers appointed by the President, \xe2\x80\x9cof whom not more than one-half shall be\nemployees of Federal regulatory agencies or Executive departments.\xe2\x80\x9d 5 U.S.C. \xc2\xa7\n595(b). The Council may exercise various powers, including calling meetings of\nthe Conference, proposing by-laws and regulations, making recommendations to\n115\n\n\x0cO p in io n s o f the O ffice o f Legal C ounsel\n\nthe Conference on subjects germane to its purpose, and receiving and considering\nreports of Conference committees2 and distributing such reports to Conference\nmembers with the Council\xe2\x80\x99s own views and recommendations. Id.\nII.\nThe Emoluments Clause, U.S. Const. Art. I, \xc2\xa7 9, cl. 8, provides:\nNo Title of Nobility shall be granted by the United States: And no\nPerson holding any Office of Profit or Trust under them, shall,\nwithout the Consent of the Congress, accept of any present,\nEmolument, Office, or Title, o f any kind whatever, from any King,\nPrince, or foreign State.\nThe Emoluments Clause was adopted unanimously at the Constitutional Con\xc2\xad\nvention, and was intended to protect foreign ministers and other officers of the\nUnited States from undue influence and corruption by foreign governments. James\nMadison\xe2\x80\x99s notes on the Convention for August 23, 1787, report:\nMr[.] Pinkney urged the necessity of preserving foreign Ministers &\nother officers of the U.S. independent of external influence and\nmoved to insert \xe2\x80\x94 after Art[.] VII sect[.] 7. the clause following \xe2\x80\x94\n\xe2\x80\x9cNo person holding any office of profit or trust under the U.S. shall\nwithout the consent of the Legislature, accept of any present,\nemolument, office or title o f any kind whatever, from any King,\nPrince or foreign State[\xe2\x80\x9d] which passed nem: contrad.\n2 The Records o f the Federal Convention o f 1787, at 389 (Max Farrand ed., rev.\ned. 1966 reprint); see also 3 id. at 327 (remarks of Governor Randolph); President\nR eagan\xe2\x80\x99s Ability to Receive Retirement Benefits from the State o f California, 5 Op.\nO.L.C. 187, 188 (1981) (discussing history of ratification of Clause).\nA.\nThe ACUS Letter represents that, typically, half of the Council members come\nfrom outside the Federal government, as do somewhat less than half (i.e., approxi\xc2\xad\nmately forty) of the remaining Conference members. It points out that these pri\xc2\xad\nvate members \xe2\x80\x9care typically lawyers in private practice, law professors, and other\n2\nU n d er its by -law s, the C onference has six standing com m ittees, adjudication, adm inistration, govern\xc2\xad\nm ental p rocesses, ju d ic ia l review , regulation and rulem aking. See I C .F .R \xc2\xa7 302 3. In addition, w ith the\napproval o f the C ouncil the C hairm an m ay estab lish special ad hoc com m ittees and assign special projects to\nthem . Id. The co m m ittees, w hich include b o th governm ent and non-governm ent m em bers, are \xe2\x80\x9cvital to the\nC o n fe re n c e \xe2\x80\x99s research and rev iew process.\xe2\x80\x9d B re g er at 826.\n\n116\n\n\x0cA p plicability oj the Em olum ents Clause to N on-G overnm ent M em bers o f A C U S\n\nexperts in administrative law and government.\xe2\x80\x9d ACUS Letter at 1. Some of the\nConference members are partners in law firms that include foreign governments\namong their clients. Although we are informed that these Conference members do\nnot personally represent foreign governmental clients and have no dealings with\nthem, \xe2\x80\x9ctheir partnership arrangements provide that client revenues are pooled in\nsome fashion so that the member receives a partnership distribution from the firm\nthat includes some proportionate share of revenues generated by those partners\nwho have the foreign government among their clients.\xe2\x80\x9d Id. at 2. ACUS asks\nwhether such members are barred from Conference service by the Emoluments\nClause.\nAs a threshold matter, ACUS does not dispute that Conference members from\nthe private sector (who are unpaid for their services to the Conference) occupy an\n\xe2\x80\x9cOffice of . . . Trust\xe2\x80\x9d within the meaning of the Emoluments Clause. We believe\nthat Conference membership is such an office. To begin with, the Conference is a\nFederal agency established by statute. See 5 U.S.C. \xc2\xa7 593. By virtue of their posi\xc2\xad\ntions within that agency, Conference members are necessarily brought within the\nClause. Although the Conference is an advisory committee as well as an agency,\nsee ACUS Letter at 1, the April 1991 opinion stated that \xe2\x80\x9cFederal advisory com\xc2\xad\nmittee members hold offices of profit or trust within the meaning of the Emolu\xc2\xad\nments Clause,\xe2\x80\x9d 15 Op. O.L.C. at 68, and we do not understand ACUS to be\ncontesting that view. Moreover, the Conference\xe2\x80\x99s advice and recommendations\nhave had (and were intended to have) a significant effect on the Government\xe2\x80\x99s ad\xc2\xad\nministrative processes. Indeed, Congress has from time to time assigned specific\nstatutory missions to the Conference, requiring it to assist other Federal agencies\nand demonstrating that the Conference\xe2\x80\x99s membership occupies a trusted and confi\xc2\xad\ndential role in governmental decisionmaking.3 Finally, under the Conference\xe2\x80\x99s\nown by-laws, its members may be considered to be special government employees\nsubject to Federal conflict of interest statutes and regulations. See 1 C.F.R. \xc2\xa7\n302.5(a). Accordingly, we have no difficulty in concluding that the non\xc2\xad\ngovernment members of the Conference occupy offices subject to the Clause. See\nOffices o f Trust, 15 Op. Att\xe2\x80\x99y Gen. 187, 188 (1877) (Commissioners appointed by\nthe President for the Centennial Exhibition hold offices of \xe2\x80\x9cTrust\xe2\x80\x9d under Clause\nbecause they were entrusted with duties \xe2\x80\x9con account of their personal qualifications\nand fitness for the place.\xe2\x80\x9d); see also Application o f Emoluments Clause to PartTime Consultant fo r the Nuclear Regulatory Commission, 10 Op. O.L.C. 96, 98\n(1986) (reviewing prior opinions).\n\n\' For exam ple, [he M agnuson-M oss W arranty Act, \xc2\xa7 202(d) 15 U S C . \xc2\xa7 57a note, directed A C U S to\nstudy the Federal Trade C o m m issio n \xe2\x80\x99s "hybrid\xe2\x80\x9d rulem aking procedures. T he G overnm enl in the S unshine\nA ct \xc2\xa7 3(a), 5 U S C . I) 552b(g), required agencies affected by the A ct s open m eeting requirem ents to co n \xc2\xad\nsult with A C U S in developing th eir regulations The Equal A ccess to Justice A ct \xc2\xa7 203(a)(1), 5 U S C. \xc2\xa7\n504(c)(1), required agencies to consult with A C U S before establishing uniform procedures for the su b m is\xc2\xad\nsion and consideration o f applications for aw ards o f fees and expenses See B reger at 835-36.\n\n117\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nACUS suggests that the Emoluments Clause does not apply to a Conference\nmember\xe2\x80\x99s acceptance of a proportionate share of partnership earnings attributable\nto his or her law firm\xe2\x80\x99s representation of a foreign government. ACUS argues that\nsuch payments are not emoluments \xe2\x80\x9cfrom\xe2\x80\x9d a foreign State, but rather from the\npartnership itself. ACUS Letter at 2-3. In support of that analysis, ACUS cites an\nopinion of this Office, Application o f the Emoluments Clause o f the Constitution\nand the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156 (1982). In that\nopinion, we considered the question whether an employee of the Nuclear Regula\xc2\xad\ntory Commission (\xe2\x80\x9cNRC\xe2\x80\x9d) was authorized to work on his leave time for an Ameri\xc2\xad\ncan consulting firm on a contract to design a nuclear power plant being built by an\nelectrical commission of the Mexican government. The employee was to be paid\nby the consulting firm from funds received from the Mexican government in con\xc2\xad\nnection with the contract, although not all the proceeds of the contract were to go\nto him. On the facts, we concluded that \xe2\x80\x9cultimate control, including selection of\npersonnel, remains with the Mexican government,\xe2\x80\x9d so that \xe2\x80\x9cthe interposition of the\nAmerican corporation [does not] relieve[] the NRC employee of the obligations\nimposed by the Emoluments Clause.\xe2\x80\x9d Id. at 158-59. ACUS infers that this opinion\n\xe2\x80\x9cstrongly suggests that the receipt of income from a partnership arrangement,\nstanding alone, does not violate the Constitutional prohibition\xe2\x80\x9d on accepting\nemoluments from a foreign State. ACUS Letter at 2.\nWe agree with ACUS that our prior opinions suggest that when an employment\nrelationship formally exists between a domestic employer and a Federal office\xc2\xad\nholder, the question whether the latter may be paid from foreign governmental\nfunds that the employer receives turns on whether the employer is acting as a mere\nconduit for those funds. This test may be illustrated by contrasting the opinion that\nACUS cites (which found that the foreign government would in effect be paying\nfor the covered person\xe2\x80\x99s services) with an earlier opinion that arrived at a different\nresult. In Memorandum for John G. Gaine, General Counsel, Commodity Futures\nTrading Commission, from Leon Ulman, Deputy Assistant Attorney General, Of\xc2\xad\nfice of Legal Counsel, Re: Expense Reimbursement in Connection with [X \xe2\x80\x99s] Trip\nto Indonesia (Aug. 11, 1980), we considered a proposed contract under which\nHarvard University provided expert consultants to the government of Indonesia.\nThe Indonesian government had no control over the selection of the experts and\ntheir payments, nor had it sought to influence the selection of experts during the\nyears in which the consulting relationship had been in effect. We concluded in that\ncase that the payment of the individual consultant would not be \xe2\x80\x9cfrom\xe2\x80\x9d the foreign\ngovernment, but rather from the employing university.4 Id. at 5.\n4\nT h e C o m p tro lle r G en eral appears lo h a v e adopted the sam e tests for determ ining w hether a proposed\npaym en t from a d o m estic e m p lo y e r would v io late the E m olum ents C lause. In 69 C om p Gen. 220 (1990),\nreco n sid erin g and affirm ing 65 Com p G en. 382 (1986), the G eneral A ccounting O ffice ruled that a retired\nm ilitary o fficer e m p lo y ed u n d e r a contract b e tw ee n a dom estic corporation and the Saudi A rabian N avy was\nsubject to the E m olum ents C lau se There w as sufficient ev id e n ce to conclude that the officer *lis in actuality\nan e m plo y ee o f the R oyal Saudi Naval F o rces since this en tity may control and supervise him as well as\n\n118\n\n\x0cA pplicability o f the E m olum ents Clause to N on-G overnm ent M em bers o f A C U S\n\nIn the present case, our inquiry focuses on the partnership relation rather than\nthe employer-employee relation. \xe2\x80\x9cA partnership is generally said to be created\nwhen persons join together their money, goods, labor, or skill for the purpose of\ncarrying on a trade, profession, or business and when there is community o f inter\xc2\xad\nest in the profits and losses.\xe2\x80\x9d Commissioner v. Tower, 327 U.S. 280, 286 (1946)\n(emphasis added); see also Meehan v. Valentine, 145 U.S. 611, 623 (1892) (\xe2\x80\x9cthose\npersons are partners, who contribute either property or money to carry on a joint\nbusiness for their common benefit, and who own and share the profits thereof in\ncertain proportions\xe2\x80\x9d). There is typically no such community of interest or propor\xc2\xad\ntionate sharing of profits in the employment relation. Hence, our precedents in the\nemployment area, while relevant and suggestive, are not directly on point.\nACUS contends that, \xe2\x80\x9cabsent some direct personal contact or relationship be\xc2\xad\ntween the Conference member and a foreign government,\xe2\x80\x9d the member should not\nbe barred from accepting \xe2\x80\x9ca proportionate share of partnership earnings . . . solely\nbecause his or her firm has a foreign government among its clients.\xe2\x80\x9d ACUS Letter\nat 3. To the extent that our opinions in the employment area suggest that the\nproper test is whether the domestic employer or the foreign government has the\npower to control the covered person\xe2\x80\x99s activity, those opinions lend some support to\nACUS\xe2\x80\x99s argument. A Conference member who did not personally represent a for\xc2\xad\neign government, and indeed had no personal contact with that client of the firm,\ncould not be said to be subject to the foreign government\xe2\x80\x99s \xe2\x80\x9ccontrol\xe2\x80\x9d in his or her\nactivities on behalf of the partnership. But we think that this consideration is not\ndecisive. More important, in our view, is the fact that the Conference member\nwould draw a proportionate share of the partnership\xe2\x80\x99s pooled profits, which would\ninclude any profits the firm earned from representing its foreign governmental cli\xc2\xad\nent. Because the amount the Conference member would receive from the partner\xc2\xad\nship\xe2\x80\x99s profits would be a function of the amount paid to the firm by the foreign\ngovernment, the partnership would in effect be a conduit for that government.\nThus, some portion of the member\xe2\x80\x99s income could fairly be attributed to a foreign\ngovernment. We believe that acceptance of that portion of the member\xe2\x80\x99s partner\xc2\xad\nship share would constitute a prohibited emolument.\nACUS points out that our April 1991 Opinion stated that 18 U.S.C. \xc2\xa7 219 does\nnot implicitly disqualify an individual from serving on an advisory committee sim\xc2\xad\nply because he or she is a partner at a firm that is required by statute to register as a\nforeign agent. See ACUS Letter at 3; 15 Op. O.L.C. at 66 n.4. ACUS urges that\nwe adopt a similar conclusion with respect to the Emoluments Clause. Section\n219, a criminal statute, makes it an offense for a public official (including members\nof advisory committees covered by the Federal Advisory Committee Act, 5 U.S.C.\nterm inate his em ploym ent." 65 Com p. G en at 385 S im ilarly, the G eneral A ccounting O ffice ruled that a\nretired m ilitary o fficer who w as em ployed and paid by a dom estic corporation and then assigned to w ork for\nan Israeli governm ent instrum entality was w ithin the C lause It was show n that the dom estic corporation\nwas in effect m erely an em ploym ent agency, and that the officer was actually w orking for the foreign g ov\xc2\xad\nernm en t that had procured his services See 53 C om p G en 753 (1974).\n\n119\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\napp. 2, \xc2\xa7\xc2\xa7 1-16) to be or act as the agent of certain foreign principals. We think\nthat the action of one partner acting as such a foreign agent cannot under this\ncriminal statute be fairly imputed to another partner who serves on an advisory\ncommittee. But it by no means follows that a partner does not receive income from\na foreign government within the meaning of the Emoluments Clause when an iden\xc2\xad\ntifiable portion of his or her partnership draw can be attributed to the partnership\xe2\x80\x99s\nfees from such a client.\nAccordingly, we conclude that, absent the consent of Congress, the Emoluments\nClause would prohibit members of the Conference from accepting a share of part\xc2\xad\nnership earnings, where some portion of that share is derived from the partner\xc2\xad\nship\xe2\x80\x99s representation of a foreign government.\nB.\nACUS further informs us that some private Conference members from time to\ntime have among their personal clients foreign government-owned or -controlled\ninstrumentalities, or business or proprietary corporations in which foreign govern\xc2\xad\nments have ownership interests. Other Conference members may from time to time\nreceive payment for teaching at foreign public universities. ACUS Letter at 2.\nACUS suggests that payments accepted by private members for services ren\xc2\xad\ndered to a foreign government should not be considered to be forbidden emolu\xc2\xad\nments when such a government is acting through commercial instrumentalities that\nit owns or controls, or through public academic institutions. See ACUS Letter at 34. Such payments, ACUS suggests, would not not be accepted \xe2\x80\x9cfrom any . . . for\xc2\xad\neign State.\xe2\x80\x9d\nWe deal first with the question of foreign government-owned or -controlled\ncommercial enterprises. In our opinion, such a corporation should indeed be con\xc2\xad\nsidered to be a \xe2\x80\x9cforeign State\xe2\x80\x9d within the meaning of the Emoluments Clause. A c\xc2\xad\ncord 53 Comp. Gen. at 756 (corporation owned by government of Israel held\nwithin purview of Clause). It may be true, as ACUS says, that when foreign gov\xc2\xad\nernments act in their commercial capacities, they do not exercise powers peculiar\nto sovereigns. See ACUS Letter at 3 (citing A lfred Dunhill o f London, Inc. v. Re\xc2\xad\npublic o f Cuba, 425 U.S. 682, 704 (1976)); but see id. at 715 (Powell, J , concur\xc2\xad\nring) (\xe2\x80\x9cthe line between commercial and political acts of a foreign state often will\nbe difficult to delineate\xe2\x80\x9d).5 But nothing in the text of the Emoluments Clause lim\xc2\xad\nits its application solely to foreign governments acting as sovereigns.\n3 In D u n h ill, the C o u rt d eclined to extend th e A ct o f State d o ctrine "to include the repudiation o f a purely\ncom m ercial o b lig atio n ow ed by a foreign so v ereig n or by one o f its com m ercial instrum entalities \xe2\x80\x9c 425 U S.\nat 695. T h e case is at best m arginally relevant to the issues here. M oreover, underlying the presum ptive\ndistinctio n b etw een foreign governm ental b u sin ess corporations and the sovereigns that ow n or control them\nare c on cern s for \xe2\x80\x9ceconom ic developm ent and efficient ad m in istratio n ,\'\xe2\x80\x99 reinforced by *\xe2\x80\x98[d]ue respect for the\nactions taken by fo reig n sov ereig n s and for principles o f c o m ity .\xe2\x80\x9d F irst N a t\'I C itv Bank v Banco Para El\nC om ercio , 4 6 2 U .S. 611, 626 (1983) But ev en in com m ercial co ntexts w here concerns for econom y and\n\n120\n\n\x0cA p plicability o f the E m olum ents C lause to Non-G overnm ent M em bers o f A C U S\n\nThe language of the Emoluments Clause is both sweeping and unqualified. See\n49 Comp. Gen. 819, 821 (1970) (the \xe2\x80\x9cdrafters [of the Clause] intended the prohi\xc2\xad\nbition to have the broadest possible scope and applicability\xe2\x80\x9d). It prohibits those\nholding offices of profit or trust under the United States from accepting \xe2\x80\x9cany pres\xc2\xad\nent, Emolument, Office, or Title, o f any kind whatever\xe2\x80\x9d from \xe2\x80\x9cany . . . foreign\nState\xe2\x80\x9d unless Congress consents. U.S. Const, art. I, \xc2\xa7 9, cl. 8 (emphasis added).\nThere is no express or implied exception for emoluments received from foreign\nStates when the latter act in some capacity other than the performance of their po\xc2\xad\nlitical or diplomatic functions. The decision whether to permit exceptions that\nqualify the Clause\xe2\x80\x99s absolute prohibition or that temper any harshness it may cause\nis textually committed to Congress, which may give consent to the acceptance of\noffices or emoluments otherwise barred by the Clause.\nMoreover, a foreign government\xe2\x80\x99s ownership or control of a corporation may\nrender the corporation that government\xe2\x80\x99s agent. See First N at\xe2\x80\x99l City Bank v.\nBanco Para El Commercio, 462 U.S. at 629. Indeed, as the Court has noted, \xe2\x80\x9c[a]\ntypical government instrumentality, if one can be said to exist, is created by an\nenabling statute that prescribes the powers and duties of the instrumentality, and\nspecifies that it is to be managed by a board selected by the government in a man\xc2\xad\nner consistent with the enabling law.\xe2\x80\x9d Id. at 624 (emphasis added). We believe\nthat the Emoluments Clause should be interpreted to guard against the risk that\noccupants of Federal office will be paid by corporations that are, or are susceptible\nof becoming, agents of foreign States, or that are typically administered by boards\nselected by foreign States. Accordingly, we think that, in general, business corpo\xc2\xad\nrations owned or controlled by foreign governments will fall within the Clause.6\nThe question whether the Emoluments Clause extends to foreign public univer\xc2\xad\nsities is somewhat more difficult. Our prior opinions on this subject have not been\na seamless web. Thus, in Memorandum for H. Gerald Staub, Office of Chief\nCounsel, NASA, from Samuel A. Alito, Jr., Deputy Assistant Attorney General,\nOffice of Legal Counsel, Re: Emoluments Clause Questions raised by NASA Sci\xc2\xad\nentist\'s Proposed Consulting Arrangement with the University o f New South Wales\n\n(May 23, 1986), we concluded that while the University of New South Wales was\nclearly a public institution, it was not so clear that it was a \xe2\x80\x9cforeign State\xe2\x80\x9d under\nthe Emoluments Clause, given its functional and operational independence from\nthe government of Australia and state political instrumentalities. Accordingly, we\nopined that the question posed there \xe2\x80\x94 whether a NASA employee could accept a\nefficiency loom larger than they do here, the C ourt has been prepared to hold that presum ptive distinction\novercom e Id at 630-33\n6\nWe acknow ledge that the Foreign G ifts and D ecorations Act, w hich provides C o n g re ss\xe2\x80\x99s co n sen t to\ncertain transactions otherw ise forbidden by the Em olum ents C lause, does not expressly subsum e c o rp o ra \xc2\xad\ntions ow ned o r controlled by foreign States w ithin its definition o f a \xe2\x80\x9cforeign governm ent." See 5 U S.C \xc2\xa7\n7342(a)(2) Rather, that definition ex ten d s prim arily to \xe2\x80\x9c any unit o f foreign governm ental authority,\xe2\x80\x9d id. \xc2\xa7\n7342(a)(2)(A ), and it is plausible to argue that such corporations are not units o f governm ental authority.\nH ow ever, we do not assum e that the A c t\xe2\x80\x99s definition is necessarily coextensive with the constitutional c o n \xc2\xad\ncept o f a \xe2\x80\x9cforeign State.\xe2\x80\x9d\n\n121\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nfee of $150 for reviewing a Ph.D. thesis \xe2\x80\x94 had to be answered by considering the\nparticular circumstances of the case, in order to determine whether the proposed\narrangement had the potential for corruption or improper foreign influence of the\nkind that the Emoluments Clause was designed to address. On other occasions,\nhowever, we have construed the Emoluments Clause to apply to public institutions\nof higher education in foreign countries.7\nIn support of its view that the Emoluments Clause does not apply to foreign\npublic universities, ACUS argues that the Clause was designed to guard against the\nexercise o f improper influence on Federal office-holders by the political or diplo\xc2\xad\nmatic agencies of foreign States, because payments by those agencies are most\nlikely to create a conflict between the recipient\xe2\x80\x99s Federal employment and his or\nher outside activity. See ACUS Letter at 4. Because public universities do not\ngenerally perform political or diplomatic functions, they ought not, on ACUS\xe2\x80\x99s\nanalysis, to be brought within the Clause. We think, however, that the contrary\nview is the better one.\nTo begin with, we reiterate that the language of the Emoluments Clause does\nnot warrant any distinction between the various capacities in which a foreign State\nmay act. Any emoluments from a foreign State, whether dispensed through its po\xc2\xad\nlitical or diplomatic arms or through other agencies, are forbidden to Federal office-holders (unless Congress consents). Further, it serves the policy behind the\nEmoluments Clause to construe it to apply to foreign States even when they act\nthrough instrumentalities which, like universities, do not perform political or dip\xc2\xad\nlomatic functions. Those who hold offices under the United States must give the\ngovernment their unclouded judgment and their uncompromised loyalty. See 10\nOp. O.L.C. at 100. That judgment might be biased, and that loyalty divided, if\nthey received financial benefits from a foreign government, even when those bene\xc2\xad\nfits took the form of remuneration for academic work or research.8 Thus, United\nStates Government officers or employees might well find themselves exposed to\nconflicting claims on their interests and loyalties if they were permitted to accept\nemployment at foreign public universities.\nFinally, Congress has exercised its power under the Emoluments Clause to cre\xc2\xad\nate a limited exception for academic research at foreign public institutions of\nlearning. The Foreign Gifts and Decorations Act provides in part that Federal em\xc2\xad\n7 See, e g , M em o ran d u m for Files from R obert J. D elahunty, A cting Special C ounsel, O ffice o f Legal\nC ounsel, R e: A p p lica b ility o f Em olum ents C la u se to E m p lo ym en t o f C F T C A ttorney by E ast C hina Institute\no f P o litic s a n d L a w (A ug 27, 1992), M em orandum for Files from B arbara E A rm acost, A ttorney-A dviser,\nO ffice o f Legal C ounsel, R e Em olum ents C la u se a n d A p p o in tm en t to the P re sid e n t\'s C om m ittee on the Arts\nand H u m a n ities (N ov. 15, 1990) The G en eral A ccounting O ffice has reached a sim ilar result See 44\nC om p G en 130 (1 9 6 4 ) (retired C oast G uard o fficer subject to recall to active duty held not entitled to re\xc2\xad\ntirem en t pay for perio d in w hich he was teach in g for the D epartm ent o f E ducation o f the State o f T asm ania,\nA ustralia)\n8 C o n siste n t w ith this view , w e have opined that an em ployee o f the N ational A rchives could not serve on an\ninternational co m m issio n o f historians created and funded by the A ustrian G overnm ent to review the w ar\xc2\xad\ntim e record o f Dr. K urt W ald h eim , the President o f A ustria See A p p lica b ility oj E m olum ents C lause to P ro\xc2\xad\np o s e d S e rv ic e o j G o vern m en t Em ployee on C o m m issio n o f In te rn a tio n a l H istorians, 11 O p O .L .C 8 9 (1 9 8 7 )\n\n122\n\n\x0cA pplicability o f the Em olum ents Clause to N on-G overnm ent M em bers o f A C U S\n\nployees may accept from foreign governmental sources \xe2\x80\x9ca gift of more than mini\xc2\xad\nmal value when such gift is in the nature of an educational scholarship.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 7342(c)(1)(B).9 Thus, Congress has recognized that foreign governmental bod\xc2\xad\nies may wish to reward or encourage scholarly or scientific work by employees of\nour Government, but has carefully delimited the circumstances in which Federal\nemployees may accept such honors or emoluments. That suggests that Congress\nbelieves both that the Emoluments Clause extends to paid academic work by Fed\xc2\xad\neral employees at foreign public universities, and that the Clause\xe2\x80\x99s prohibition on\nsuch activity should generally remain in force.\nAccordingly, we conclude that foreign governmental entities, including public\nuniversities, can and presumptively do constitute instrumentalities of foreign States\nunder the Emoluments Clause, even if they do not engage specifically in political\nor diplomatic functions.10\nConclusion\n\nNon-government members of the Administrative Conference are prohibited by\nthe Emoluments Clause from accepting a distribution from their partnerships that\nincludes some proportionate share of the revenues generated from the firm\xe2\x80\x99s for\xc2\xad\neign government clients.\nSimilarly, non-government members of the Conference are in general forbidden\nby the Emoluments Clause from accepting payments from commercial entities\nowned or controlled by foreign States. This prohibition also extends to the accept\xc2\xad\nance of payments for teaching at foreign universities that are instrumentalities of\nforeign States.\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n9\nWe have opined that this exception applied to an aw ard o f approxim ately $24,000 by a foundation act\xc2\xad\ning on b eh alf o f the W est G erm an G overnm ent to a scientist em ployed by the N aval R esearch L aboratory\nW e reasoned that a \xe2\x80\x9cprogram designed to honor U nited States scientists and enable them \xe2\x80\x98to stay for an\nextended period at research institutes in the Federal R epublic o f G erm any to carry out research o f the\nA w ard ee \'s ow n c h o ice\xe2\x80\x99 seem s to be m the nature o f an educational scholarship, acceptance o f w hich C on\xc2\xad\ngress has p e rm u te d " Letter for W alter T Skallerup, Jr., G eneral C ounsel, D epartm ent o f the N avy, from\nR obert B Shanks, Deputy A ssistant A ttorney G eneral, O ffice o f Legal C ounsel at 4 (M ar. 17, 1983)\nACUS points out that it is an advisory co m m ittee, and that \xe2\x80\x9cthe nature o f an advisory com m ittee is that\nan individual \xe2\x80\x94 o r even the com m ittee as a w hole \xe2\x80\x94 c an n o t d eterm ine the course of governm ental action **\nA C U S Letter at 4 But, as we have noted above, ACUS is also, by statute, a Federal agency. M oreover, even\nconsidered solely as an advisory com m ittee, A C U S could influence governm ental decisionm aking. See\nA ssocia tio n o f Am P hysicians a n d Surgeons, Inc v C linton, 997 F 2d 898, 913-14 (D .C . Cir. 1993) Hence,\nthe advisory nature o f ACUS does not render it im m une from the possibility that a foreign State m ight exert\nim proper influence on and through it A C U S also o b jects that \xe2\x80\x9c [ijt w ould be particularly unusual for a rec\xc2\xad\nom m endation by the A dm inistrative C onference to be o f significant interest to a foreign governm ent "\nA C U S Letter at 5 But there m ay be no w ay o f fine-tuning the prohibitions on the acceptance of foreign go v \xc2\xad\nernm ental em olum ents to reach precisely such \xe2\x80\x9c unusual" cases In any event, the C onstitution itse lf lays dow n\na stark and unqualified rule, and leaves it to the legislative process to w ork out any needed qualifications\n\n123\n\n\x0c'


b'Use of Appropriations to Pay Travel Expenses of\nInternational Trade Administration Fellows\nThe payment of travel expenses for International Trade Administration fellows is barred by 31 U.S.C.\n\xc2\xa7 1345 because the proposed ITA fellowship program that would bring representatives from various\ncountries to the United States would constitute a \xe2\x80\x9cmeeting\xe2\x80\x9d within the meaning of section 1345.\n\nOctober 7, 2004\n\nMEMORANDUM OPINION FOR THE DEPUTY SECRETARY\nDEPARTMENT OF COMMERCE\nYou have asked whether a proposed International Trade Administration\n(\xe2\x80\x9cITA\xe2\x80\x9d) fellowship program that would bring representatives from various countries to the United States would constitute a \xe2\x80\x9cmeeting\xe2\x80\x9d within the meaning of 31\nU.S.C. \xc2\xa7 1345 (2000), which prohibits the use of appropriations \xe2\x80\x9cfor travel, transportation, and subsistence expenses for a meeting,\xe2\x80\x9d except as specifically provided\nby law. We conclude that the program would constitute a \xe2\x80\x9cmeeting\xe2\x80\x9d within the\nmeaning of section 1345.\nI.\nLocated in the Department of Commerce, ITA provides information to American businesses about global markets, ensures that American businesses have\naccess to international markets as required by trade agreements, and safeguards\nAmerican businesses from unfair competition from dumped and subsidized\nimports. See Overview: About ITA, available at http://ita.doc.gov/about.html (last\nvisited Sept. 7, 2004). In view of this mission, ITA would like to develop a\nmanagement training fellowship program for representatives from several African\ncountries. The program would\n(1) educat[e] African businessmen, and government and parastatal\nemployees about the U.S. financial services market and the U.S.\nGovernment programs;\n(2) provid[e] an opportunity for American businesses to learn more\nabout potential opportunities in Africa by allowing them to evaluate\nthe risk of doing business in various African countries; and\n(3) allow[] the U.S. Government to obtain more concrete information\nto help it formulate its policy.\nLetter for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal\nCounsel, from Theodore W. Kassinger, Deputy Secretary, Department of Commerce at 1 (Mar. 19, 2004). ITA would bring 12\xe2\x80\x9315 representatives of African\ncountries to the United States for two weeks. The fellows would receive a basic\n\n269\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\norientation at the Department of Commerce, and would \xe2\x80\x9cmeet with other Government trade agencies\xe2\x80\x9d and \xe2\x80\x9cwith various private sector organizations that specialize\nin the area of financial services.\xe2\x80\x9d Id. \xe2\x80\x9cAnother potential part of the program,\xe2\x80\x9d you\nhave explained, \xe2\x80\x9cwould send the fellows elsewhere in the United States to meet\nwith the various U.S. companies that have projects of interest or with academics\nwho specialize in financial services.\xe2\x80\x9d Id. at 1\xe2\x80\x932.\nYou have asked whether section 1345 would prohibit ITA from using appropriations to pay for the fellows\xe2\x80\x99 transportation expenses under the program and, in\nparticular, whether the program would constitute a \xe2\x80\x9cmeeting\xe2\x80\x9d within the meaning\nof section 1345.\nII.\nWe begin, as we must, with the text of the statute. We \xe2\x80\x9cmust presume that\n[Congress] says in a statute what it means and means in a statute what it says there.\nWhen the words of a statute are unambiguous, then, this first canon is also the\nlast.\xe2\x80\x9d Conn. Nat\xe2\x80\x99l Bank v. Germain, 503 U.S. 249, 253\xe2\x80\x9354 (1992).\nBy itself, the text of section 1345 does not naturally support the proposed expenditures. Section 1345 states:\nExcept as specifically provided by law, an appropriation may not be\nused for travel, transportation, and subsistence expenses for a meeting. This section does not prohibit\xe2\x80\x94\n(1) an agency from paying the expenses of an officer or employee of\nthe United States Government carrying out an official duty; and\n(2) the Secretary of Agriculture from paying necessary expenses for\na meeting called by the Secretary for 4-H Boys and Girls Clubs as\npart of the cooperative extension work of the Department of Agriculture.\n31 U.S.C. \xc2\xa7 1345. We have previously explained that section 1345 \xe2\x80\x9cgive[s] force\xe2\x80\x9d\nto the \xe2\x80\x9cprinciple . . . that appropriated funds cannot generally be used to pay the\nexpenses of persons who are not federal employees.\xe2\x80\x9d Memorandum for Michael E.\nShaheen, Jr., Counsel, Office of Professional Responsibility, from Robert B.\nShanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Use of\nDepartment of Justice Vehicles by Attorney General\xe2\x80\x99s Spouse at 5 (Jan. 23, 1984)\n(\xe2\x80\x9c1984 Vehicles Memorandum\xe2\x80\x9d).\nIn everyday usage, the program you have described would involve a \xe2\x80\x9cmeeting\xe2\x80\x9d\xe2\x80\x94indeed, several meetings. See Webster\xe2\x80\x99s Third New Int\xe2\x80\x99l Dictionary 1404\n(2002) (\xe2\x80\x9cmeeting\xe2\x80\x9d means \xe2\x80\x9can act or process of coming together\xe2\x80\x9d; \xe2\x80\x9ca gathering for\nbusiness, social, or other purposes\xe2\x80\x9d). According to your letter, the fellows will\n\xe2\x80\x9cmeet with . . . Government trade agencies,\xe2\x80\x9d \xe2\x80\x9cmeet with various private sector\norganizations,\xe2\x80\x9d and potentially \xe2\x80\x9cmeet with various U.S. companies.\xe2\x80\x9d As the\n\n270\n\n\x0cPayment of Travel Expenses of International Trade Administration Fellows\n\nfellows would not fall within section 1345\xe2\x80\x99s general exceptions\xe2\x80\x94for \xe2\x80\x9cofficer[s] or\nemployee[s] of the United States carrying out an official duty\xe2\x80\x9d and \xe2\x80\x9c4-H Boys and\nGirls Clubs\xe2\x80\x9d\xe2\x80\x94by its terms section 1345 would require ITA to identify another law\nspecifically providing for the expenditure in order to pay the fellows\xe2\x80\x99 travel\nexpenses for the proposed meetings.\nThe context in which the statute uses the word \xe2\x80\x9cmeeting\xe2\x80\x9d bolsters this conclusion. Section 1345 includes an exception allowing \xe2\x80\x9cthe Secretary of Agriculture\n[to] pay[] necessary expenses for a meeting called by the Secretary for 4-H Boys\nand Girls Clubs as part of the cooperative extension work of the Department of\nAgriculture.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1345(2). See Pub. Res. No. 74-32, 49 Stat. 387 (1935)\n(adding this exception to section 1345 during the same session of Congress in\nwhich section 1345 was first enacted). Not unlike ITA\xe2\x80\x99s mission with respect to\nAmerica\xe2\x80\x99s prospective trading partners in Africa, the \xe2\x80\x9ccooperative extension\nwork\xe2\x80\x9d of the Department of Agriculture requires it to work with state agricultural\ncolleges to \xe2\x80\x9cgiv[e] instruction and practical demonstrations . . . in agriculture . . .\n[and] home economics\xe2\x80\x9d to America\xe2\x80\x99s future farmers and homemakers. 7 U.S.C.\n\xc2\xa7 342 (2000); see Smith-Lever Act, ch. 79, \xc2\xa7 2, 38 Stat. 372 (1914); CapperKetcham Act, ch. 687, \xc2\xa7 1, 45 Stat. 711 (1928). If 4-H \xe2\x80\x9cmeeting[s]\xe2\x80\x9d called by the\nSecretary of Agriculture in furtherance of his cooperative extension work would,\nbut for this exception, be \xe2\x80\x9cmeeting[s]\xe2\x80\x9d prohibited by section 1345, as the existence\nand language of the 4-H exception implies, ITA meetings called by the Secretary\nof Commerce to give instruction in American financial services markets to our\nfuture trading partners in Africa also constitute \xe2\x80\x9cmeeting[s]\xe2\x80\x9d to which section 1345\napplies.\nComptroller General opinions interpreting section 1345 under analogous circumstances reinforce this analysis.1 Shortly after Congress first enacted section\n1345 in 1935, the Comptroller General issued an opinion concluding that the plain\nlanguage of the statute prohibited the government from paying the travel and\nlodging expenses of private citizens who were assisting the Federal Housing\nAdministration in a campaign to encourage the repair and modernization of real\nestate. See Federal Housing Administration\xe2\x80\x94Conventions and Gatherings\xe2\x80\x94\nStatutory Construction, 14 Comp. Gen. 638 (1935). A few months later, the\nComptroller General concluded that section 1345 prohibited the American Battle\nMonuments Commission from providing private citizens with transportation to\nmonument dedication ceremonies in Europe. Conventions and Gatherings\xe2\x80\x94\nLodging, Feeding, and Transporting, 14 Comp. Gen. 851 (1935). And more\nrecently, the Comptroller General has concluded that section 1345 prohibits the\nMine Safety and Health Administration from paying the travel expenses of miners\n\n1\nAlthough \xe2\x80\x9cthe Comptroller General, as the agent of Congress, cannot issue interpretations of the\nlaw that are binding on the executive branch,\xe2\x80\x9d Comptroller General\xe2\x80\x99s Authority to Relieve Disbursing\nand Certifying Officials from Liability, 15 Op. O.L.C. 80, 82 (1991), his interpretations \xe2\x80\x9cmay be\nconsidered for whatever persuasive value they may offer,\xe2\x80\x9d Submission of Aviation Insurance Program\nClaims to Binding Arbitration, 20 Op. O.L.C. 341, 343 n.3 (1996).\n\n271\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nand mine operators to attend mine safety training conducted by the Mine Safety\nand Health Administration. Mine Safety and Health Administration\xe2\x80\x94Payment of\nTravel Expenses at Seminars, B-193644, 1979 WL 12354 (Comp. Gen. July 2,\n1979). See also National Highway Traffic Safety Administration\xe2\x80\x94Travel and\nLodging Expenses, 62 Comp. Gen. 531 (1983) (section 1345 prohibits the National\nHighway Traffic Safety Administration from paying travel expenses for state\nofficials to attend a workshop on odometer fraud); Travel Expenses\xe2\x80\x94Convention,\nConferences, etc.\xe2\x80\x94Attendees\xe2\x80\x94State Officials, 55 Comp. Gen. 750 (1976) (section\n1345 prohibits the Environmental Protection Agency from paying the travel expense of state officials to attend solid waste conference jointly sponsored by the\nEPA).\nAll of these sources point to the same conclusion\xe2\x80\x94meetings, as proposed here,\nbetween a dozen or more individuals and the representatives of various governmental and private entities qualify as \xe2\x80\x9cmeeting[s]\xe2\x80\x9d within the meaning of section\n1345.\nYou have argued, nevertheless, that one must interpret the word \xe2\x80\x9cmeeting\xe2\x80\x9d in\nthe light of the language and purpose of the original version of section 1345,\nbecause Congress did not insert the word \xe2\x80\x9cmeeting\xe2\x80\x9d in the statute until 1982, when\nit recodified title 31. The joint resolution now codified at section 1345 was\noriginally passed by Congress and signed by the President in 1935. Pub. Res. No.\n74-2, 49 Stat. 19 (1935). According to the findings preceding the resolution,\n\xe2\x80\x9cnumerous applications [were] being received from various organizations\nrequesting lodging, food, and transportation for the purpose of holding conventions or meetings at Washington and elsewhere,\xe2\x80\x9d and \xe2\x80\x9cthe expenditure of Government funds for such purposes is against the policy of Congress.\xe2\x80\x9d Id. To that end,\nthe original joint resolution provided that\nunless specifically provided by law, no moneys from funds appropriated for any purpose shall be used for the purpose of lodging, feeding, conveying, or furnishing transportation to, any conventions or\nother form of assemblage or gathering to be held in the District of\nColumbia or elsewhere. This section shall not be construed to prohibit the payment of expenses of any officer or employee of the Government in the discharge of his official duties.\nId. (emphasis added). In 1982, Congress substituted the term \xe2\x80\x9ca meeting\xe2\x80\x9d for \xe2\x80\x9cany\nconventions or other form of assemblage or gathering,\xe2\x80\x9d Pub. L. No. 97-258, sec. 1,\n\xc2\xa7 1345, 96 Stat. 877, 925 (1982), but stated that the change \xe2\x80\x9cmay not be construed\nas making a substantive change in the law[] replaced,\xe2\x80\x9d id. \xc2\xa7 4(a), 96 Stat. at 1067.\nEven if the word \xe2\x80\x9cmeeting\xe2\x80\x9d means \xe2\x80\x9cany conventions or other form of assemblage or gathering,\xe2\x80\x9d it is difficult to see how the meetings proposed under the ITA\nprogram would not constitute a \xe2\x80\x9cform of assemblage or gathering.\xe2\x80\x9d While the\nword \xe2\x80\x9cconvention\xe2\x80\x9d in isolation may have a more limited connotation, the full\nphrase \xe2\x80\x9cany convention or other form of assemblage or gathering\xe2\x80\x9d\xe2\x80\x94giving the\n\n272\n\n\x0cPayment of Travel Expenses of International Trade Administration Fellows\n\nwords their ordinary meaning\xe2\x80\x94sweeps broadly enough to include the meetings\nproposed here.2 The Comptroller General\xe2\x80\x99s 1935 opinions noted above, decided\nunder the original language, are consistent with this conclusion, as is his 1979\nopinion regarding mine safety training, and others. We need not decide that every\nencounter involving two or more people would constitute a \xe2\x80\x9cconvention[] or other\nform of assemblage or gathering\xe2\x80\x9d to conclude that the ITA\xe2\x80\x99s proposed meetings,\nwhich would involve larger representative groups, would fall within the plain\nterms of the original resolution.\nYou also suggest that a 1993 decision by the Comptroller General supports the\nargument that the proposed ITA program does not involve a \xe2\x80\x9cmeeting\xe2\x80\x9d for\npurposes of section 1345. In that opinion, the Comptroller General concluded that\nsection 1345 did not prohibit the Department of Defense (\xe2\x80\x9cDOD\xe2\x80\x9d) from paying the\ntravel expenses of private recruiters to attend an overseas job fair for government\nteachers who were being laid off by DOD. The Comptroller General concluded\nthat job fairs and one-on-one interviews with teachers were not \xe2\x80\x9cthe type of\n\xe2\x80\x98meeting\xe2\x80\x99 the statute was intended to reach.\xe2\x80\x9d Use of Appropriated Funds to Pay\nfor Recruiters to Attend Department of Defense Dependent Schools Job Fairs, 72\nComp. Gen. 229, 230\xe2\x80\x9331 (1993). Relying on the statute\xe2\x80\x99s legislative history, the\nComptroller General explained that \xe2\x80\x9cthe principal focus of section 1345 . . . was on\nconventions or other forms of assemblages or gatherings that various private\norganizations were seeking to hold at government expense.\xe2\x80\x9d Id. at 231. The DOD\njob fair was different. \xe2\x80\x9cProvided DOD determines that the contemplated payments\nare necessary to accomplish the purpose of the appropriation to be charged,\xe2\x80\x9d the\nComptroller General concluded, section 1345 permits DOD to pay the travel\nexpenses of private parties who would \xe2\x80\x9cprovide a direct benefit to the government.\xe2\x80\x9d Id.\nIn our view, the 1993 Comptroller General opinion does not support the expenditures proposed here. Unlike the group encounter involved in the proposed\nITA program and the group encounters involved in earlier Comptroller General\nopinions, the DOD job fair involved individual encounters. The ultimate goal was\nfor individual recruiters to interview and hire individual teachers. An opinion\nconcluding that a series of one-on-one encounters is not a \xe2\x80\x9cmeeting\xe2\x80\x9d does not\n\n2\nSee Funk & Wagnall\xe2\x80\x99s New Standard Dictionary of the English Language 572 (1946) (\xe2\x80\x9cconvention\xe2\x80\x9d is \xe2\x80\x9c[a] formal or stated gathering of persons for some specific purpose; especially a meeting for\ndiscussion or concerted action of delegates or representatives\xe2\x80\x9d); id. at 170 (\xe2\x80\x9cassemblage\xe2\x80\x9d is \xe2\x80\x9c[t]he act of\nassembling, or the state of being assembled; association\xe2\x80\x9d or \xe2\x80\x9c[a] collection of persons or things\nassembled or associated\xe2\x80\x9d); id. at 1013 (\xe2\x80\x9cgathering\xe2\x80\x9d is \xe2\x80\x9c[t]hat which is gathered or brought together\xe2\x80\x9d);\nWebster\xe2\x80\x99s New Int\xe2\x80\x99l Dictionary of the English Language 582 (2d ed. 1944) (\xe2\x80\x9cconvention\xe2\x80\x9d is \xe2\x80\x9c[a]\ncoming together or meeting\xe2\x80\x9d or \xe2\x80\x9c[a] body or assembly of persons met for some common purpose; esp.,\na formal and special or occasional assembly of delegates, representatives, members of an estate or\nparty, or the like, met to accomplish some specific civil, social, political, ecclesiastical, or other\nimportant object\xe2\x80\x9d); id. at 165 (\xe2\x80\x9cassemblage\xe2\x80\x9d is the \xe2\x80\x9c[a]ct of assembling; state of being assembled\xe2\x80\x9d or\n\xe2\x80\x9c[a] collection of individuals, or of particular things; an aggregation; as, a political assemblage\xe2\x80\x9d); id. at\n1038 (\xe2\x80\x9cgathering\xe2\x80\x9d is \xe2\x80\x9c[s]omething gathered; as . . . [a] crowd; assembly; congregation\xe2\x80\x9d).\n\n273\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nadvance the argument that a series of group encounters does not constitute a\nmeeting.\nMore importantly, however, the Comptroller General\xe2\x80\x99s reasoning in that opinion rests on a questionable and discredited premise\xe2\x80\x94that the floor statements of a\nfew members of Congress can alter the unambiguous text of a statute voted upon\nby the whole Congress. See HUD v. Rucker, 535 U.S. 125, 132 (2002) (\xe2\x80\x9creference\nto legislative history is inappropriate when the text of the statute is unambiguous\xe2\x80\x9d).\nStatements in section 1345\xe2\x80\x99s legislative history variously suggest that the purpose\nof the law was to withhold travel expenses from \xe2\x80\x9cnational organizations,\xe2\x80\x9d 79\nCong. Rec. 709 (1935), \xe2\x80\x9corganizations of any kind,\xe2\x80\x9d id. at 710, groups that travel\nto Washington \xe2\x80\x9cfor the purpose of presenting propaganda for their pet projects\nbefore committees of Congress or departments of the Government,\xe2\x80\x9d id., and\n\xe2\x80\x9ccommunistic veteran organizations,\xe2\x80\x9d id. at 711. But the statute\xe2\x80\x99s text is not so\nlimited, and we may not stray from that unambiguous text on the basis of statements made by individual members of Congress.\nThe very brief debate on the original measure in the Senate illustrates the danger. As you observe in your letter, Senator Byrnes explained that section 1345\xe2\x80\x99s\npurpose was to prevent government funding of \xe2\x80\x9cconventions.\xe2\x80\x9d Id. at 1109 (section\n1345 \xe2\x80\x9cis simply a declaration of policy of the Congress that no funds of any lumpsum appropriation should be used to pay the expenses of delegates to any convention in the District of Columbia\xe2\x80\x9d). In the next breath, when asked whether the law\n\xe2\x80\x9crelates to the District of Columbia alone,\xe2\x80\x9d Senator Byrnes asserted his belief that\nit, indeed, related to the District of Columbia alone. Id. That, however, is not what\nthe text of the law says. We cannot rely on a single senator\xe2\x80\x99s comments to show\nthat the law applies to conventions alone\xe2\x80\x94when the law as originally framed\nreferred to \xe2\x80\x9cconventions and other forms of assemblage or gathering\xe2\x80\x9d (and, later,\n\xe2\x80\x9cmeetings\xe2\x80\x9d)\xe2\x80\x94any more than we can conclude that the law only applies to\nmeetings held in the District of Columbia\xe2\x80\x94when the law referred to the \xe2\x80\x9cDistrict\nof Columbia or elsewhere.\xe2\x80\x9d The best indicator of statutory meaning is the statutory\ntext, which in this case broadly prohibits using general appropriations to pay the\ntravel expenses of a private person for a meeting. See Conventions and Gatherings, 14 Comp. Gen. at 640 (rejecting reliance on section 1345\xe2\x80\x99s legislative history\nbecause \xe2\x80\x9c[t]here seems very little if any room for doubt as to the reasonable\nmeaning and legal effect of [the statute\xe2\x80\x99s] language\xe2\x80\x9d).3\n3\nThe 1993 Comptroller General opinion discussed in your letter may reach the correct conclusion,\nbut for the wrong reason. The better view is that the job fair does constitute a \xe2\x80\x9cmeeting,\xe2\x80\x9d \xe2\x80\x9cassemblage,\xe2\x80\x9d\nor \xe2\x80\x9cgathering.\xe2\x80\x9d Were an agency to pay the travel expenses of private recruiters to attend a private job\nfair, no one could doubt that it would contravene the plain language and purpose of section 1345. It\nwould, in short, constitute a meeting. What distinguishes the DOD job fair, as the Comptroller General\nopinion suggests, was that \xe2\x80\x9cthe recruiters provide[d] a direct benefit to the government,\xe2\x80\x9d by hiring\nteachers and saving the government the cost of laying them off (early retirement incentives and general\nadministrative costs). This \xe2\x80\x9cdirect benefit\xe2\x80\x9d to the Government may have qualified the recruiters to\nreceive travel expenses under a limited but well-recognized exception to section 1345\xe2\x80\x94the \xe2\x80\x9cinvitational travel\xe2\x80\x9d statute, 5 U.S.C. \xc2\xa7 5703 (2000), which allows the government to pay the travel expenses of\ncertain individuals who provide a direct service to the government.\n\n274\n\n\x0cPayment of Travel Expenses of International Trade Administration Fellows\n\nAlso unavailing are the other grounds cited in your letter for distinguishing the\nproposed ITA program from a \xe2\x80\x9cmeeting.\xe2\x80\x9d That the program does not involve an\napplication from an outside organization, does not involve a general conference of\ninterest to a broad spectrum of people, and is not open to anyone who pays a\nregistration fee does not change the result. By its terms, the statute is not limited to\nmeetings for which outside organizations request funds, in which a broad spectrum\nof people show interest, or that are open to any person who wishes to register.\nMoreover, while the program is clearly an important one, section 1345 does not\ncontain an exception based on the importance of the program. To the contrary, in\nbroad terms that leave little room for interpretation, the statute directs federal\nentities not to pay a private party\xe2\x80\x99s travel expenses for a meeting, \xe2\x80\x9c[e]xcept as\nspecifically provided by law.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1345.\nIII.\nBecause the proposed ITA program would qualify as a \xe2\x80\x9cmeeting\xe2\x80\x9d within the\nmeaning of section 1345, ITA may not pay the attendees\xe2\x80\x99 travel expenses unless\nCongress has \xe2\x80\x9cspecifically provided by law\xe2\x80\x9d for the payment of private individuals\xe2\x80\x99 travel expenses to such a meeting. You have not identified any statute that\nwould provide such authority.4\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n4\nAs general authority for the program, your letter cites 22 U.S.C. \xc2\xa7 2351(b) (2000), which authorizes the President to \xe2\x80\x9cmake arrangements to find, and draw the attention of private enterprise to,\nopportunities for investment and development in less-developed friendly countries and areas.\xe2\x80\x9d You do\nnot contend, however, that section 2351 speaks with sufficient specificity to satisfy section 1345. One\nstatutory authority that may have possible relevance is 5 U.S.C. \xc2\xa7 5703, the \xe2\x80\x9cinvitational travel\xe2\x80\x9d statute,\nwhich provides that\n\n[an] employee serving intermittently in the Government service as an expert or consultant and paid on a daily when-actually-employed basis, or serving without pay or at\n$1 a year, may be allowed travel or transportation expenses . . . while away from his\nhome or regular place of business and at the place of employment or service.\nAs specifically used in section 5703, the term \xe2\x80\x9cemployee\xe2\x80\x9d means \xe2\x80\x9can individual employed in or\nunder an agency including an individual employed intermittently in the Government service as an\nexpert or consultant . . . and an individual serving without pay.\xe2\x80\x9d Id. \xc2\xa7 5701(2) (emphasis added). The\nlaw views such individuals \xe2\x80\x9cas temporary employees or \xe2\x80\x98quasi employees\xe2\x80\x99 during the period of their\nservice to the government.\xe2\x80\x9d 1984 Vehicles Memorandum at 6. This authority is strictly limited to\ncircumstances where the individual is \xe2\x80\x9clegitimately performing a direct service for the Government.\xe2\x80\x9d\nId. at 7 (emphasis added; internal quotation marks omitted); see 1 General Accounting Office, Principles of Federal Appropriations Law at 4-47 to 4-50 (3d ed. 2004). We are not in a position to judge\nwhether any benefits to ITA from the fellowship program might satisfy the requirements of section\n5703 for the payment of some or all of the fellows\xe2\x80\x99 travel expenses. That is a determination best made\nby your Department\xe2\x80\x99s fiscal officers, based on all of the facts and circumstances of the proposed\nprogram.\n\n275\n\n\x0c'


b'Garnishment Under the Child Support Enforcement\nAct of Compensation Payable by the Department of\nVeterans Affairs\nDisability or other com pensation paid to a veteran by the Department o f Veterans Affairs is\nsubject to garnishment under the Child Support Enforcem ent Act when, in ord er to\nreceive such com pensation, the veteran has waived receipt o f all o f the military retired\npay to which he or she w ould otherwise be entitled.\n\nDecember 19, 1989\nM e m o r a n d u m O p in io n\nD epartm ent\n\nfor t h e\n\nof\n\nG e n e r a l C o u n sel\n\nV e t e r a n s A f f a ir s\n\nThis responds to your Department\xe2\x80\x99s letter of December 14, 1988 to the\nAttorney General,1 which has been referred to us pursuant to 28 C.F.R. \xc2\xa7\n0.25(a) for reply. You have asked for our advice whether disability or\nother compensation paid to a veteran by the Department o f Veterans\nAffairs (\xe2\x80\x9cDVA\xe2\x80\x9d) is subject to garnishment under the Child Support\nEnforcement Act, 42 U.S.C. \xc2\xa7\xc2\xa7 651-669, when, in order to receive such\ncompensation, the veteran has waived receipt of all o f the military retired\npay to which he or she would otherwise be entitled. For the reasons that\nfollow, we believe that disability or other compensation paid to a veteran\nin such circumstances is subject to garnishment.\n\nI. Background\nMany veterans who are entitled to receive DVA compensation are also\nentitled to military retired pay.2 In order to receive DVA compensation,\nhowever, a veteran who is receiving retired pay must waive receipt o f \xe2\x80\x9cso\nmuch of such person\xe2\x80\x99s retired or retirement pay as is equal in amount to\nsuch [DVA] pension or compensation.\xe2\x80\x9d 38 U.S.C. \xc2\xa7 3105; see also id. \xc2\xa7\n3104 (prohibiting duplication o f benefits). As the Supreme Court recent\xc2\xad\nly observed, \xe2\x80\x9cwaivers o f retirement pay are common\xe2\x80\x9d among veterans\n\n1Letter for the Attorney General, from Thomas K. Tumage, Administrator o f Veterans Affairs (D ec 14,\n1988) ( \xe2\x80\x9cTumage Letter\xe2\x80\x9d).\n2Of the \xe2\x80\x9cnearly 2 2 million veterans rated by the VA as having service-connected disabilities ... nearly\n20 percent, some 435,000, are military retirees.\xe2\x80\x9d T\\image Letter at 1.\n\n381\n\n\x0cwho are entitled to receive DVA disability benefits, \xe2\x80\x9c [b]ecause disability\nbenefits are exempt from federal, state and local taxation.\xe2\x80\x9d Mansell v.\nMansell, 490 U.S. 581, 583 (1989).\nThe DVA\xe2\x80\x99s general anti-garnishment statute provides in pertinent part:\nPayments o f benefits due or to become due under any law\nadministered by the Veterans\xe2\x80\x99 Administration shall not be\nassignable except to the extent specifically authorized by\nlaw, and such payments made to, or on account of, a bene\xc2\xad\nficiary shall be exempt from taxation, shall be exempt from\nthe claim o f creditors, and shall not be liable to attachment,\nlevy, or seizure by or under any legal or equitable process\nwhatever, either before or after receipt by the beneficiary.\n38 U.S.C. \xc2\xa7 3101(a). Thus, veterans\xe2\x80\x99 benefits are generally not subject to\ngarnishment.\nIn 1975, Congress passed the Child Support Enforcement Act, which\ncreates an exception to the anti-garnishment provisions o f 38 U.S.C. \xc2\xa7\n3101(a) for the purpose of enforcing veterans\xe2\x80\x99 family support obligations.\nSection 659 o f the Child Support Enforcement Act provides in part:\nNotwithstanding any other provision o f law (including\nsection 407 o f this title), effective January 1, 1975, moneys\n(the entitlement to which is based upon remuneration for\nemployment) due from, or payable by, the United States or\nthe District o f Columbia (including any agency, subdivision,\nor instrumentality thereof) to any individual, including\nmembers o f the armed services, shall be subject, in like\nmanner and to the same extent as if the United States or the\nDistrict o f Columbia were a private person, to legal process\nbrought for the enforcement, against such individual o f his\nlegal obligations to provide child support or make alimony\npayments.\n42 U.S.C. \xc2\xa7 659(a).3\nSection 662(f)(2) o f the Act, however, exempts certain governmental\npayments to veterans from garnishment for child support, including\nany payments by the [DVA] as compensation for a serviceconnected disability or death, except any compensation\npaid by the [DVA] to a former member of the Armed\n\n3 This provision \xe2\x80\x9cwas intended to create a limited waiver o f sovereign immunity so that state courts\ncould issue valid orders directed against agencies o f the United States Government attaching funds in\nthe possession o f those agencies.\xe2\x80\x9d Rose v Rose, 481 U S. 619, 635 (1987).\n\n382\n\n\x0cForces who is in receipt of retired or retainer pay i f such\nformer member has waived a portion o f his retired pay in\norder to receive such compensation ....\nId. \xc2\xa7 662(f)(2) (emphasis added). Thus, \xe2\x80\x9cany compensation\xe2\x80\x9d paid by the\n\nDVA in cases where the recipient \xe2\x80\x9cis in receipt o f retired or retainer pay\xe2\x80\x9d\nand has waived \xe2\x80\x9ca portion o f his retired pay in order to receive such com \xc2\xad\npensation\xe2\x80\x9d is subject to garnishment for the purpose o f making child sup\xc2\xad\nport or alimony payments.\nThe DVA is o f the view that the plain language o f section 662(f)(2) pre\xc2\xad\ncludes garnishment when a veteran has waived all o f his or her retired\npay in order to receive DVA compensation. In 1983, at the DVA\xe2\x80\x99s request,\nthe Office o f Personnel Management (\xe2\x80\x9cOPM\xe2\x80\x9d) amended its regulation\ninterpreting 42 U.S.C. \xc2\xa7 662(f)(2) to adopt the DVA\xe2\x80\x99s construction o f the\nstatute. See 48 Fed. Reg. 26,279 (1983).4\nCourts have reached conflicting conclusions concerning the validity o f\nthe DVA\xe2\x80\x99s interpretation o f 42 U.S.C. \xc2\xa7 662(f)(2). Some courts have held\nthat a literal construction o f the statute supports the interpretation that\ngarnishment is not available when a veteran has waived all o f his or her\nretired pay in order to receive DVA compensation. See, e.g., Sanchez\nDieppa v. Rodriguez Pereira, 580 F. Supp. 735 (D.P.R. 1984). Other courts\nhave held that this construction fosters anomalous results, and is incon\xc2\xad\nsistent with Congress\xe2\x80\x99 intent in enacting the statute. See, e.g., United\nStates v. Murray, 282 S.E.2d 372 (Ga. Ct. App. 1981).\n\nII. Discussion\nIn our view, 42 U.S.C. \xc2\xa7 662(f)(2) should be interpreted as permitting\ngarnishment o f DVA compensation even when a veteran has waived all of\nhis or her retired pay in order to receive such compensation. The statu\xc2\xad\ntory language allows this construction without strain. Moreover,\nCongress\xe2\x80\x99 purpose in permitting garnishment of DVA compensation paid\nin lieu o f retired pay is far better served by permitting such garnishment\nregardless o f whether the DVA compensation exceeds the retired pay\nentitlement.\n4As amended, the interpretive regulation providesAny payments by the Veterans Administration as compensation for a service-connected\ndisability or death, except any compensation paid by the Veterans Admimstration to a former\nmember o f the Armed Forces who is in receipt o f retired or retainer pay if such former mem\xc2\xad\nber has waived a portion o f his/her retired pay in order to receive such compensation. In this\ncase, only that part o f the Veterans Administration payment which is in lieu o f the waived\nretired/retainer pay is subject to garnishment Payments o f disability compensation by the\n\nVeterans Administration to an individual whose entitlement to disability compensation\nis greater than his/her entitlement to retired pay, and who has waived all of his/her retired\npay in favor of disability compensation, are not subject to garnishment or other attach\xc2\xad\nment under this part\n5 C.F.R. \xc2\xa7 581.103(c)(4)(iv) (emphasis added).\n\n383\n\n\x0cSection 662(f)(2) subjects DVA compensation to garnishment when \xe2\x80\x9ca\nformer member of the Armed Forces who is in receipt of retired or retain\xc2\xad\ner pay ... has waived a portion o f his retired pay in order to receive such\ncompensation.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 662(f)(2) (emphasis added). In excluding dis\xc2\xad\nability compensation from garnishment whenever a veteran \xe2\x80\x9chas waived\nall o f his/her retired pay in favor of disability compensation,\xe2\x80\x9d 5 C.F.R.\n\xc2\xa7 581.103(c)(4)(iv) (emphasis added), OPM\xe2\x80\x99s interpretive regulation tracks\na common definition o f the word \xe2\x80\x9cportion.\xe2\x80\x9d5However, we do not agree that\nsection 662(f)(2) \xe2\x80\x9cis sufficiently clear on its face to obviate the need for\nstatutory construction.\xe2\x80\x9d T\\image Letter at 5. As used in the statute, a \xe2\x80\x9cpor\xc2\xad\ntion\xe2\x80\x9d could reasonably mean \xe2\x80\x9cany amount greater than zero.\xe2\x80\x9d\nThe term is frequently used in this sense in other statutes. For exam\xc2\xad\nple, 18 U.S.C. \xc2\xa7 648, which prescribes criminal penalties for embezzle\xc2\xad\nment, prohibits any \xe2\x80\x9cofficer or other person charged by any Act of\nCongress with the safe-keeping of the public moneys\xe2\x80\x9d from \xe2\x80\x9cloan[ing],\nus[ing], or converging] to his own use ... any portion o f the public\nmoneys intrusted to him for safe-keeping.\xe2\x80\x9d Similarly, 18 U.S.C. \xc2\xa7 653 pro\xc2\xad\nhibits any \xe2\x80\x9cdisbursing officer o f the United States\xe2\x80\x9d from, inter alia, \xe2\x80\x9ctrans\xc2\xad\nferring], or apply[ing], any portion of the public money intrusted to him\xe2\x80\x9d\nfor \xe2\x80\x9cany purpose not prescribed by law.\xe2\x80\x9d Notwithstanding the use o f the\nword \xe2\x80\x9cportion,\xe2\x80\x9d a defendant could not successfully defend a charge of\nembezzlement on the grounds that he embezzled all, and not part, o f the\npublic money entrusted to him.6 Accordingly, we do not think that the use\no f the word \xe2\x80\x9cportion\xe2\x80\x9d in 42 U.S.C. \xc2\xa7 662(f)(2) compels the DVA\xe2\x80\x99s interpre\xc2\xad\ntation o f the statute.7\nBecause the language of the statute is not unambiguous, we turn to the\nlegislative history for guidance. See, e.g., Blum v. Stenson, 465 U.S. 886,\n896 (1984); United States v. American Trucking Ass\xe2\x80\x99ns, Inc., 310 U.S.\n534, 543-44 (1940). Although that history is rather sparse, it is bereft of\nany indication that Congress intended to exempt veterans from their sup\xc2\xad\nport obligations if they waive all retired pay in favor o f DVA compensa\xc2\xad\ntion. Rather, Congress\xe2\x80\x99 principal purpose was to prevent federal civilian\nand military employees from evading their support obligations by\naugmenting the means by which those obligations can be enforced. In\n\n5See, e.g., Railroad Yardmasters of America v. Hams, 721 F2d 1332, 1346 n.l (D.C. Cir 1983) (Wald,\nJ , dissenting) ( \xe2\x80\x9cIn usual parlance, portion means \xe2\x80\x98a: a part o f a whole ... b: a limited amount or quanti\xc2\xad\nty \xe2\x80\x99 Webster\xe2\x80\x99s Third New Int\xe2\x80\x99l Dictionary 1768 (1976)." (ellipsis in original)).\n6See also 28 U.S.C. \xc2\xa7 994(i)(2) (directing United States Sentencing Commission to prescribe sentenc\xc2\xad\ning guidelines providing a substantial term o f imprisonment for a defendant who \xe2\x80\x9ccommitted the offense\nas part o f a pattern o f criminal conduct from which he derived a substantial portion o f his income ").\n7 Furthermore, the language o f the statute also fails to support the DVA\xe2\x80\x99s argument that a veteran who\nhas waived all o f his or her retired or retainer pay is no longer \xe2\x80\x9cin receipt o r retired or retainer pay with\xc2\xad\nin the meaning o f section 662(f)(2) Tumage Letter at 5. The words \xe2\x80\x9cin receipt o f retired or retainer pay\xe2\x80\x9d\nin the statute merely recite the necessary predicate for a waiver, i e , no veteran can waive his or her\nretired pay unless he or she is \xe2\x80\x9cin receipt\xe2\x80\x9d o f such pay\n\n384\n\n\x0cdiscussing the original 1975 legislation, the Senate Committee on Finance\ncommented on the garnishment provisions as follows:\nThe Committee bill would specifically provide that the\nwages o f Federal employees, including military personnel,\nwould be subject to garnishment in support and alimony\ncases. In addition, annuities and other payments under\nFederal programs in which entitlement is based on employ\xc2\xad\nment would also be subject to attachment for support and\nalimony payments.\nS. Rep. No. 1356, 93d Cong., 2d Sess.\'54 (1974).\nSection 662(f)(2) was added to the Act as part o f a package of clarify\xc2\xad\ning amendments that were passed in 1977. The explanatory discussion of\nthe clarifying amendments states in part:\nAlthough the intent o f the Congress would appear to be\nclear from ... [the language in S. Rep. No. 1356, supra],\nquestions as to the applicability o f the statute to social\ninsurance and retirement statutes have arisen. Other ques\xc2\xad\ntions as to the kinds of remuneration which are covered by\nthe statute ... have also been raised. To remove the possi\xc2\xad\nbility of confusion, the amendment adds a definition of\n\xe2\x80\x9cremuneration for employment\xe2\x80\x9d which covers compensa\xc2\xad\ntion paid or payable for personal services o f an individual,\nwhether as wages, salary, commission, bonus, [or] pay ....\nIt excludes any payment as compensation for death under\nany Federal program, any payment under any program\nestablished to provide \xe2\x80\x9cblack lung\xe2\x80\x9d benefits, any payment\nby the [DVA] as pension, or any payment by the Veterans\xe2\x80\x99\nAdministration as compensation for service-connected dis\xc2\xad\nability or death. Such exclusion, however, does not apply to\nany compensation paid by the [DVA] to aformer member\nof the armed forces who is in receipt of retired or retain\xc2\xad\ner pay i f such former member has waived a portion o f his\nretired pay in order to receive such compensation.\n\n123 Cong. Rec. 12,913 (1977) (emphasis added).\nThe purpose o f the 1977 amendments was thus to clarify which cate\xc2\xad\ngories of payments were subject to garnishment and which were not, and\nDVA compensation received in lieu o f retired pay was clearly one type o f\npayment that Congress considered appropriate for garnishment.\nAlthough Congress used the word \xe2\x80\x9cportion\xe2\x80\x9d in describing the effect o f\nsection 662(f)(2), there is nothing to indicate that Congress attached a\nnarrow meaning to its use in this context.\n385\n\n\x0cIndeed, the narrow interpretation adopted by the DVA does not ration\xc2\xad\nally advance any conceivable legislative purpose that Congress had in\npermitting garnishment of benefits paid in lieu of retired pay.8 Congress\npermitted garnishment in these circumstances because it recognized that\na veteran waiving retired pay to obtain DVA compensation is merely sub\xc2\xad\nstituting one form o f income for another, and that the latter income\nshould thus be subject to garnishment to the same extent as the former.\nIn light o f this understanding, it should not be relevant how much of one\xe2\x80\x99s\nclaim to retired pay one waives. There is therefore simply no logical rea\xc2\xad\nson that a veteran who has waived 99% o f his retired pay in order to\nreceive DVA compensation should be subject to garnishment, while a vet\xc2\xad\neran who has waived 100% of his retired pay should not. This is particu\xc2\xad\nlarly so in light o f the fact that, because DVA compensation is not taxed,\nthe net after-tax income on a dollar-for-dollar basis of veterans whose\nDVA compensation exceeds their waived retired pay is actually greater\nthan that o f veterans whose DVA compensation does not exceed their\nwaived retired pay.9\nIn reaching this conclusion, w e recognize that, \xe2\x80\x9c[i]n analyzing whether\nCongress has waived the immunity of the United States, we must construe\nwaivers strictly in favor of the sovereign and not enlarge the waiver,\n\xe2\x80\x98\xe2\x80\x9cbeyond what the language requires.\xe2\x80\x99\xe2\x80\x9d\xe2\x80\x9d Library of Congress v. Shaw, 478\nU.S. 310, 318 (1986) (citations omitted). However, this rule does not obvi\xc2\xad\nate the need to consider congressional intent when a statutory provision\nadmits o f conflicting interpretations, and Congress\xe2\x80\x99 intent can be reason\xc2\xad\nably discerned. See, e.g., Berman v. Schweiker, 713 F.2d 1290, 1301 (7th\nCir. 1983) (\xe2\x80\x9c[W]here Congress by statute has waived sovereign immunity\nand has demonstrated a clear legislative intent with respect to the broad\nremedial purpose o f the Act, ... each section of the Act must be accorded\nan interpretation that is consonant with the legislative purpose o f the\n8 The DVA offers no reason why Congress might have intended to exempt veterans who have waived\nall o f their retired pay in order to receive disability benefits from the requirements o f the Child Support\nEnforcement Act See Tumage Letter at 5 ( \xe2\x80\x9cF or whatever reason, Congress intended to prohibit garnish\xc2\xad\nment where retired pay is waived in toto . . ")\n9 Our conclusion is not in any way inconsistent with the congressional policy underlying the DVA\xe2\x80\x99s antigamishment statute, 38 U S C. \xc2\xa7 3101(a). In Rose v Rose, 481 U S 619, 630-34 (1987), the Supreme Court\nconsidered whether section 3101(a) preempted the jurisdiction o f a state court to hold a veteran in con\xc2\xad\ntempt for failing to pay child support from his veterans\xe2\x80\x99 benefits. In concluding that it did not, the Court\nreasoned:\nVeterans\xe2\x80\x99s disability benefits compensate for impaired earning capacity, and are intended\nto \xe2\x80\x9cprovide reasonable and adequate compensation for disabled veterans and their fami\xc2\xad\nlie s \xe2\x80\x9d ... Congress clearly intended veterans\xe2\x80\x99 disability benefits to be used, in part, for the sup\xc2\xad\nport o f veterans\xe2\x80\x99 dependents\nRose v Rose, 481 U.S. at 630-31 (citations and footnote omitted).\nSince the purpose o f DVA compensation is to provide for the security o f both veterans and their fami\xc2\xad\nlies, the policy considerations underlying section 3101(a) would not be frustrated by construing section\n662(f)(2) to permit the garnishment o f DVA compensation that is received in lieu o f retired pay, regard\xc2\xad\nless o f whether the recipients have waived all o f their entitlement to retired pay in order to receive such\ncompensation.\n\n386\n\n\x0centire Act.\xe2\x80\x9d). Here, consideration of the legislative history o f the Act and\nthe practical effect o f the DVA\xe2\x80\x99s construction o f section 662(f)(2) per\xc2\xad\nsuades us that Congress did not intend to relieve veterans o f their support\nobligations whenever their DVA compensation exceeds their retired pay.\n\nIII. Conclusion\nFor the foregoing reasons, we conclude that 42 U.S.C. \xc2\xa7 662(f)(2) should\nbe construed to permit the garnishment of DVA compensation received in\nlieu of military retired pay even when a veteran has waived all of his or her\nretired pay in order to receive such compensation. We further recommend\nthat 5 C.F.R. \xc2\xa7 581.103(c)(4)(iv) be amended accordingly.\nJOHN O. McGINNIS\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n387\n\n\x0c'


b'Withdrawal of Four Opinions on CIA Interrogations\nFour previous opinions of the Office of Legal Counsel concerning interrogations by the\nCentral Intelligence Agency are withdrawn and no longer represent the views of the\nOffice.\nApril 15, 2009\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nSections 3(a) and 3(b) of Executive Order 13491, 3 C.F.R. 199 (2009\ncomp.), set forth restrictions on the use of interrogation methods. In\nsection 3(c) of that order, the President further directed that \xe2\x80\x9cunless the\nAttorney General with appropriate consultation provides further guidance,\nofficers, employees, and other agents of the United States Government\nmay not, in conducting interrogations, rely upon any interpretation of\nthe law governing interrogation . . . issued by the Department of Justice\nbetween September 11, 2001, and January 20, 2009.\xe2\x80\x9d That direction\nencompasses, among other things, four opinions of the Office of Legal\nCounsel: Memorandum for John Rizzo, Acting General Counsel of the\nCentral Intelligence Agency, from Jay S. Bybee, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Interrogation of al Qaeda Operative (Aug. 1, 2002); Memorandum for John A. Rizzo, Senior Deputy\nGeneral Counsel, Central Intelligence Agency, from Steven G. Bradbury,\nPrincipal Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: Application of 18 U.S.C. \xc2\xa7\xc2\xa7 2340 \xe2\x80\x932340A to Certain Techniques That\nMay Be Used in the Interrogation of a High Value al Qaeda Detainee\n(May 10, 2005); Memorandum for John A. Rizzo, Senior Deputy General\nCounsel, Central Intelligence Agency, from Steven G. Bradbury, Principal\nDeputy Assistant Attorney General, Office of Legal Counsel, Re: Application of 18 U.S.C. \xc2\xa7\xc2\xa7 2340 \xe2\x80\x932340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees (May 10,\n2005); and Memorandum for John A. Rizzo, Senior Deputy General\nCounsel, Central Intelligence Agency, from Steven G. Bradbury, Principal\nDeputy Assistant Attorney General, Office of Legal Counsel, Re: Application of United States Obligations Under Article 16 of the Convention\nAgainst Torture to Certain Techniques That May Be Used in the Interrogation of High Value al Qaeda Detainees (May 30, 2005).\n191\n\n\x0c33 Op. O.L.C. 191 (2009)\n\nIn connection with the consideration of these opinions for possible public release, the Office has reviewed them and has decided to withdraw\nthem. They no longer represent the views of the Office of Legal Counsel.\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n192\n\n\x0c'


b"August 6, 1979\n\n79-58\n\nMEMORANDUM OPINION FOR THE ACTING\nASSISTANT ATTORNEY GENERAL, CIVIL\nDIVISION\nRenegotiation Board\xe2\x80\x94Reporting Requirement\n(50 U.S.C. App. \xc2\xa7 1215)\xe2\x80\x94Effect of Absence of an\nAppropriation\xe2\x80\x94Repeals by Implication\n\nYou ask whether contractors must continue to file financial reports with\nthe Renegotiation Board in light o f the absence o f an appropriation for the\nBoard. It appears that the situation giving rise to the question results from\nCongress\xe2\x80\x99 failure to make an appropriation for the Renegotiation Board\nwithout expressly repealing the Renegotiation Act, 50 U.S.C. App. \xc2\xa7 1191\net seq. (1976). You note that, pursuant to 50 U.S.C. App. \xc2\xa7 1215(e)\n(1976), contractors holding contracts or subcontracts subject to the\nRenegotiation Act must periodically file financial reports with the\nRenegotiation Board. Further, you state that a willful failure to file such a\nreport constitutes a criminal offense, and that because o f this contractors\ncontinue to mail financial reports to a nonexistent Board. The General\nServices Administration is holding the reports.\nBased on the above you have asked whether the financial reporting re\xc2\xad\nquirements o f 50 U .S.C . App. \xc2\xa7 1191(c)(5)(A) (1976) are suspended or\nterm inated. We believe that there is no requirement for the continued fil\xc2\xad\ning o f the reports.\nThe Renegotiation Act o f 1951, 65 Stat. 7, was enacted to eliminate ex\xc2\xad\ncessive profits in contracts by which the United States procures property,\nprocesses, services, and the construction o f facilities necessary for the na\xc2\xad\ntional defense. The Renegotiation Board, following statutory guidelines,\nwas to determine whether contracts subject to the Act resulted in excessive\nprofits. 50 U.S.C. A pp. \xc2\xa7 1217 (1976). The provisions o f the Act applied\nonly to receipts and accruals, under covered contracts, which were at\xc2\xad\ntributable to perform ance on or before September 30, 1976. 50 U.S.C.\nApp. \xc2\xa7 1212(c)(1) (1976).\n318\n\n\x0cPublic Law No. 95-431, 95 Stat. 1043 (1978), the 1979 Appropriations\nAct for the Departments o f State, Justice, Commerce, and others, pro\xc2\xad\nvides that:\nFor necessary expenses o f the Renegotiation Board, including\ntermination or cessation o f the activities o f the Board, and in\xc2\xad\ncluding hire o f passenger m otor vehicles and services as author\xc2\xad\nized by 5 U .S.C . 3109, $5,260,000, to be available only until\nMarch 31, 1979: Provided, That all property (including records)\no f the Board shall be transferred to the Administrator, General\nServices Administration, upon cessation o f the B oard\xe2\x80\x99s ac\xc2\xad\ntivities, or on March 31, 1979, whichever first occurs.\nThis provision was explained in the Senate report as follows:\nC ontractors\xe2\x80\x99 liability to report their receipts and accruals to the\nRenegotiation Board under the Renegotiation Act o f 1951 ex\xc2\xad\npired on September 30, 1976 [see 50 U.S.C. App. \xc2\xa7 1212(c)(1) ]\nand has not yet been extended beyond that date * * * .\nAs a result o f extensive hearings the Committee has concluded\nthat the Board is not effective and by its emphasis on profits it is\nnot an incentive to reducing costs. The appropriation recom\xc2\xad\nmended by the Committee is for the Board\xe2\x80\x99s activities during the\nperiod October 1, 1978 through May 31, 1979' to allow the\nBoard sufficient time to close its offices, transfer its property and\nrecords to the General Services Administration, and provide for\nthe orderly termination o f activities, including the payment o f\nterminal leave and severance pay to eligible employees. [Senate\nRept. 1043 , 95th Cong., 2d sess. 80-81 (1978).]\nThe House report likewise expressed dissatisfaction with certain o f the\nBoard\xe2\x80\x99s actions and made clear its intention that the B oard\xe2\x80\x99s activities be\ncompleted prior to March 31, 1979, and thereafter cease (H. Rept. 1253,\n95th Cong., 2d sess. 50-51 (1978) ). The House report further deemed it\nappropriate to consider termination o f the Board in light o f Congress\xe2\x80\x99\nfailure to extend the Renegotiation Act after its September 30, 1976 ex\xc2\xad\npiration. Id. at 50.\nWe believe that Congress, by implication, repealed the Act and thus\neliminated the A ct\xe2\x80\x99s reporting requirements. In Lewis v. United States,\n244 U.S. 134 (1917), the Court considered the effect o f Congress\xe2\x80\x99 failure\nto appropriate for a particular Government office while augmenting the\nappropriation o f the Interior Department for the Secretary o f the Interior\nto finish the work \xe2\x80\x9c caused by the discontinuance\xe2\x80\x9d o f the office. The\nCourt stated:\nIt is true that repeals by implication are not favored. The\nrepugnancy between the later act upon the same subject and the\nformal legislation must be such that the first act cannot stand\n\n'The Senate later receded to the H ouse's proposed March 31, 1979, term ination date.\n\n319\n\n\x0cand be capable o f execution consistently with the terms o f the\nlater enactment. As we view it, such conflict does appear in this\ninstance.\nIt must be assumed that Congress was familiar with the action\no f the executive departm ent undertaking to terminate the office\nand when Congress acted upon the assumption that the office\nwas abolished and provided for the unfinished work * * *\n\xe2\x80\x9c caused by the discontinuance\xe2\x80\x9d o f the office, such action was\ntantam ount to a direct repeal o f the act creating the office and\nhad the effect to abolish it. [Id. at 144.]\nWe think that this principle applies here.2 The Act is not capable o f execu\xc2\xad\ntion in light o f the B oard\xe2\x80\x99s abolition.\nIn this connection, it should be noted that since Congress intended to\neliminate the B oard\xe2\x80\x99s functions it follows that the reporting requirements\nunder the Renegotiation Act were intended to cease with the Board\xe2\x80\x99s ter\xc2\xad\nmination. This is for the simple reason that the reporting requirements\nwere merely to assist the Board in carrying out its functions. Since those\nfunctions no longer exist, reporting would accomplish nothing.\nL eon U\n\nlm an\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n'H ere, as in Lewis v. United States, Congress acted through an appropriation measure.\nThus, Lewis also stands for the proposition that Congress may repeal substantive laws by\nway o f an appropriation provision. See also, City o f Los Angeles v. Adams, 556 F. (2d) 40\n(D .C . Cir. 1977).\n\n\x0c"