b'December 6, 1978\n\n78-63 MEMORANDUM OPINION FOR THE\nSOLICITOR OF LABOR\nComprehensive Employment and Training Act\n(42 U.S.C. \xc2\xa7\xc2\xa7 6701-6710)\xe2\x80\x94Wider Opportunities for\nWomen (WOW)\xe2\x80\x94Program Funding in the\nMetropolitan Washington Area\nThis responds to your request for our opinion regarding the legality of\nfunding the Wider Opportunities for Women (WOW) program in the metropoli\xc2\xad\ntan Washington area under Title 111 of the Comprehensive Employment and\nTraining Act Amendments of 1978 (CETA), Pub. L. No. 95-524, 92 Stat.\n1909. Your request also mentions several other programs directed toward\nwomen or members of minority groups and raises the general issue of the\npropriety of funding affirmative action programs such as those under CETA.\nSpecifically, you ask that we address two questions: (1) whether \xc2\xa7 301(a) of\nCETA, 29 U.S.C. \xc2\xa7 871(a), authorizes the Secretary of Labor to fund programs\ndesigned to assist eligible, disadvantaged women and minorities in the labor\nmarket; and (2) whether funding of the WOW program providing training for\nwomen in skilled crafts in which they have been historically underrepresented\nis an appropriate exercise of the Secretary\xe2\x80\x99s authority under \xc2\xa7 301(a).\nWe have considered these questions in light of the recent decision in Regents\nof the University of California v. Bakke, 438 U.S. 265 (1978). Certain general\nprinciples emerge from that decision. We know that neither the Constitution\nnor Title VI of the Civil Rights Act of 1964, 42 U.S.C. \xc2\xa7 2000d, et seq.,\nrequires \xe2\x80\x9c color blindness\xe2\x80\x9d in federally funded programs. That is, race and\nethnicity (and presumably sex) may be taken into consideration for some\npurposes. 438 U.S. at 284-286. Certain race-conscious programs may come\ninto conflict with the Constitution and title VI even if they are intended to be\nremedial. Analysis of the legality of race or gender-conscious programs must,\ntherefore, proceed on a case-by-case basis after a careful examination of\nrelevant facts. Accordingly, we have not attempted to furnish advice regarding\nthe legality of funding all the types of programs that might conceivably be\ndirected toward women or members of minority groups. Instead, we have\n271\n\n\x0cfocused on the legality of funding the specific training program in the skilled\ncrafts now proposed as part of the WOW program.\nWe conclude that in light of the statutory amendments adopted as part of the\n1978 CETA reauthorization legislation, Pub. L. No. 95-524, it is now clear that\nCongress has authorized the Secretary of Labor, under title III, to fund\nprograms designed to assist women in overcoming particular disadvantages\nfound to impede their entry into specific or general labor markets or occupa\xc2\xad\ntions. By authorizing funding of programs designed to assist members of\nspecial target groups, Congress limited the participation in such programs to\nmembers of such disadvantaged groups, notwithstanding the language of the\ntitle VI analog included as \xc2\xa7 132(a) of the Act, 29 U.S.C. \xc2\xa7 834. So long as\nthey are supported by adequate findings, we believe that programs similar to\nWOW directed toward disadvantaged groups and carefully designed to remedy\nthe effects on past or ongoing discrimination will be sustained against legal\nchallenge. In light of the Court\xe2\x80\x99s reasoning in Bakke , however, it is evident that\nprograms drawn along racially or sexually exclusive lines are particularly prone\nto raise constitutional questions. We therefore advise, in light of the uncertainty\nprevailing in this area of the law and the risk of litigation presented by adoption\nof a sexually exclusive program, that you propose revising the administration of\nthe WOW program. Recruitment efforts could continue to be directed toward\nwomen, and women would be presumed to meet applicable eligibility\nrequirements; however, where male applicants can demonstrate comparable\ndisadvantages, they should also be considered eligible for participation.\nI.\nThe proposed project, the \xe2\x80\x9c Multi-Craft Program for Women,\xe2\x80\x9d would\nprovide counseling and training to 75 unemployed women residents of the\nDistrict of Columbia in the field of electronics, as skilled auto mechanics, or as\nelectrician or carpenter apprentices. Eligibility for participation in the program\nis limited to women.1While most trainees are also members of minority groups,\nthe program is not racially exclusive in character. Training, both in the\nclassroom and through field placement, would last from 7 to 14 months and\nwould be provided by both industry trainers and program staff specialists.2\nPersonal, professional, and group counseling would focus on possible problems\nat home and on the job in an attempt to prevent such problems from adversely\naffecting job performance.\nWe understand that for entry-level positions as auto mechanics and carpenter\napprentices the industry does not require formal training as a prerequisite. With\nregard to entry-level jobs in electronics, however, employers prefer a technical\nschool or high school education and they require 14 months of preparatory\n\'Applicants are required to achieve an acceptable score on a mechanical aptitude test and to\ndemonstrate good mathematical computation skills. They must also be highly motivated and\ndemonstrate some measure of self-confidence.\n2The curriculum would include basic mechanics, basic electricity, beginning electronics,\nmathematics, communications, and work preparation.\n\n272\n\n\x0ctraining. We also understand that a portion of the basic program curriculum is\ncomparable to high school instruction in such fields as mechanics and\nmathematics, which women may have been discouraged from pursuing, and it\nincludes practical training in identification of tools similar to that traditionally\nprovided to men in their home environment or in high school shop classes.\nII.\nFunding of the WOW counseling and training program is proposed under\nTitle III of CETA. Although the original version of the Act did not include a\nspecific reference to women as one of the groups to be assisted,3 the Secretary\xe2\x80\x99s\nauthority to direct funds toward this particular target group was outlined by the\n1978 CETA reauthorization which amended \xc2\xa7 301(a) to read as follows:\n(a) The Secretary shall use funds available under this title to provide\nservices authorized under all titles of this Act and for employ\xc2\xad\nment and training programs that\xe2\x80\x94\n(1) meet the employment-related needs of persons who face particu\xc2\xad\nlar disadvantages in specific and general labor markets or\noccupations including offenders, persons of limited English\nlanguage proficiency, handicapped individuals, women, single\nparents, displaced homemakers, youth, older workers, individu\xc2\xad\nals who lack educational credentials, public assistance recipients,\nand other persons whom the Secretary determines require special\nassistance. [Emphasis added.]\nThe more difficult question is whether in order more effectively to aid women\nas a target group, the Secretary may fund programs that are sexually exclusive\nin character. Neither the language nor the legislative history of CETA gives a\nclear indication how Congress intended that programs of this sort be funded, in\ncontrast, for example, to those that are for practical reasons limited to the\nhandicapped or to persons with limited English language proficiency. The\nlimited congressional discussion in connection with the floor amendment that\nled to the inclusion of the reference to women in the list of disadvantaged\ngroups now found in \xc2\xa7 301(a) focused primarily on the low pay and high\nunemployment rate of women in the labor force and the need to provide women\nwith basic resources to overcome these disadvantages.4 In contrast to other\nlegislation that expressly authorized Agencies to take affirmative action\n3The earlier version of this provision provided in pertinent part:\nThe Secretary shall use funds available under this title to provide additional manpower\nservices as authorized under Titles I and II to segments of the population that are in\nparticular need of such services, including youth, offenders, persons of limited\nEnglish-speaking ability, older workers, and other persons which the Secretary deter\xc2\xad\nmines have particular disadvantages in the labor market. [Act of December 28, 1973, 87\nStat. 857, 891.]\n4124 Cong. Rec. H. 10474 (Sept. 22, 1978) (Representative McGuire). See also, id., H. 12444\n(Oct. 11, 1978) (Conference Report) (stating without elaboration that women are to be included in\nthe list of those facing disadvantages in the labor market).\n\n273\n\n\x0cfavoring members of certain disadvantaged racial or ethnic groups to the\nexclusion of other persons,5 there is no explicit statement that sexually\nexclusive programs were thought necessary here.6\nNevertheless, the apparent purpose of \xc2\xa7 301(a) is to provide special assistance\nto particular groups. In accord with that purpose, the Secretary may fund\nprograms designed for assistance to one or more of these special target groups,\nand limit the admittance to those for whom the programs were designed.\nCongress left it to the discretion of the Secretary to determine how best to\nprovide services to the special target groups. The Secretary\xe2\x80\x99s exercise of this\ndiscretion in circumstances such as these will not ordinarily be disturbed as\nlong as it is consistent with the governing statute and does not violate\nconstitutional requirements. See, e.g., FTC v. Sperry & Hutchinson Co., 405\nU.S. 233 (1974); FCC v. Schriber, 381 U.S. 279, 289-294 (1965).\nIII.\nThe Secretary\xe2\x80\x99s authority is limited, however, by \xc2\xa7 132(a) of the Act, 29\nU.S.C. \xc2\xa7 834. It is a provision modeled on Title VI of the 1964 Civil Rights\nAct7 but expanded to bar additional forms of discrimination:\nNo person in the United States shall on the ground of race, color,\nreligion, sex, national origin, age, handicap, or political affiliation or\nbelief be excluded from participation in, be denied the benefits of, be\nsubjected to discrimination under, or be denied employment in the\nadministration of or in connection with any program or activity\nfunded in whole or in part with funds made available under this Act.\nThe intent of Congress in including this provision as part of CETA must be\ndiscerned not simply from the words of the provision but also from its relation\nto \xc2\xa7 301. In title III Congress undertook to aid specified target groups,\nincluding women, persons with limited English language proficiency (a\ncharacteristic likely to correlate with national origin), older workers, and\nhandicapped persons. In light of that intent, we do not think that Congress\nintended \xc2\xa7 132(a) to serve as a statutory directive mandating at the same time\nthe provision of such specially designed remedial opportunities on a uniform\nbasis to all comers, male and female, persons who for whatever reason wish to\nenhance their proficiency in English grammar and related skills, the young and\n\xe2\x80\x99Compare the minority set-aside provision of \xc2\xa7 103(f)(2) of the Public Works Employment Act\nof 1977, 42 U .S.C. \xc2\xa7 6705(f)(2) and its legislative history as discussed, e.g., in Fulliiove v. Kreps,\n584 F. (2d) 600 (2d Cir. 1978).\n6See H. Rept. No. 1124, 95th Cong., 2d sess. 15 (1978); S. Rept. No. 891, 95th Cong., 2d sess.\n3, 7 (1978); 124 Cong. Rec. S. 13960 (Aug. 22, 1978) (1978 version); H. Rept. No. 659, 93d\nCong., 1st sess. 14, 24 (1973); H. Rept. No. 737, 93d Cong., 1st sess. 62 (1973); 119 Cong. Rec.\n25702, 38409, 38417, 38419, 38422 (1973) (1973 version).\n7The original provision, \xc2\xa7 712 of the 1973 Comprehensive Employment and Training Act, 87\nStat. 857, read as follows;\nNo person in the United States shall on the ground of race, color, national origin, or sex\nbe excluded from participation in, be denied the benefits of, or be subject to\ndiscrimination under any program or activity funded in whole or in part with funds\navailable under this Act.\n\n274\n\n\x0cthe old, persons whether or not handicapped. Because \xc2\xa7 132(a) is part of a\nstatutory scheme which clearly contemplates that benefits will be directed to\ncertain target groups, it may well be appropriate to give it different application\nwhen applied to remedial programs than would be the case where, as in Bakke,\nthe Court was asked to interpret the significance of similar language standing\nalone. Insofar as the Court\xe2\x80\x99s interpretation of title VI turned in the end on\nconstitutional analysis,8 it is nevertheless clearly pertinent here. Even in the\nabsence of a statutory bar to the proposed award of funds, the constitutionality\nof such Federal action remains to be considered.\nIV.\nIt now seems relatively certain that the Supreme Court has adopted an\nintermediate Equal-Protection analysis with regard to gender-based classifica\xc2\xad\ntions, inquiring whether the classification serves important governmental\nobjectives and is substantially related to the achievement of those objectives.\nSee , Califano v. Webster, 430 U.S. 313, 316-17 (1977); Craig v. Boren, 429\nU.S. 190, 197 (1976). See plso. Regents of the University of California v.\nBakke, 438 U.S. 265, 302, 303 (Powell, J.). While the application of this\nstandard has not yet been fully explored in the context of affirmative action\nprograms, certain basic points are clear.\nIt is first evident that achievement of a work force composed of a specified\npercentage of women merely because of their sex is not an acceptable\ngovernmental goal. Bakke, at 307 (Powell, J.). Neither will such justifications\nbased on administrative convenience suffice to sustain a gender-based classifi\xc2\xad\ncation. Califano v. Goldfarb, 430 J.S. 199, 209-210 (1977). On the other\nhand, the governmental interest in \xe2\x80\x9c ameliorating, or eliminating where feasible,\nthe disabling effects of identified discrimination\xe2\x80\x9d is \xe2\x80\x9c legitimate\xe2\x80\x9d and \xe2\x80\x9c sub\xc2\xad\nstantial.\xe2\x80\x9d Bakke, ibid. (Powell, J.).9\n\xe2\x80\x9cThe majority of the Court in Bakke adopted the view that, in the context of a remedial program,\ntitle VI prohibits only those racial classifications as are barred by the constitutional guarantee of\nequal protection. 438 U.S. 265, 286, 287 (Powell, J.); 438 U.S. 265, 327, 328 (Brennan, White,\nMarshall, and Blackmun, JJ.)\n\xe2\x80\x99It is, however, uncertain under the Court\xe2\x80\x99s earlier decisions just how specific such a finding of\ndiscrimination must be. A showing of lower prevailing wage rates justified the adjustment in\nnumber of low wage years excluded in calculating Social Security benefits that was upheld in\nCalifano v. Webster. There the Court expressly stated that \xe2\x80\x9c [r]eduction of the disparity in\neconomic conditions between men and women caused by the long history of discrimination against\nwomen has been recognized as such an important governmental objective.\xe2\x80\x9d Califano v. Webster,\n430 U.S. 313, 317 (1977). Evidence of general economic disparity reflected in wage and labor\nmarket statistics, a disparity that would in some measure be remedied by provision of preferential\nproperty tax exemptions, sufficed in Kahn v. Shevin, 416 U.S. 351 (1974). See also, Lewis v.\nCowen, 443 F. Supp. 544 (E.D. Pa. 1977) (three-judge court) (provision of Railroad Retirement\nAct authorizing retirement with a full pension by women at age 60 but only reduced benefits for\nmen between the ages of 60 and 65 upheld, inter alia, as reducing economic disparity resulting\nfrom the payment of lower wages to women). A gender-based classification was also sustained in\nSchlesinger v. Ballard. 419 U.S. 498 (1975), where the more beneficial treatment of women had\nbeen designed to equalize the opportunities for promotion available to male and female naval\nofficers.\n\n275\n\n\x0cThe second requirement, that the gender-based classification be \xe2\x80\x9c substan\xc2\xad\ntially related\xe2\x80\x9d to the achievement of legitimate Government objectives, is\nsomewhat less well defined. It is clear that the justification for the classification\nmust in fact reflect the real governmental objective; for example, reliance on an\noverbroad assumption about dependency will not be regarded as an effort to\nremedy even demonstrable need. Califano v. Goldfarb, supra; Weinberger v.\nWiesenfeld, 420 U.S. 636 (1975).10 Careful articulation of the intended\nobjective is particularly important, see, Califano v. Webster, supra, so that the\nexistence of such a direct nexus between injury and remedy will be apparent. A\nsound statistical or empirical base in support of the asserted assumptions is also\nimportant. See, Craig v. Boren, supra. Thus, where a gender-based classifica\xc2\xad\ntion is chosen as a means for achieving even those governmental objectives that\nare recognized to be legitimate, and particularly where such a classification is\nused to exclude certain persons from any possibility of receiving benefits or\nparticipating in Government programs because of their sex, care must be taken\nto provide a clear and demonstrable justification."\nV\nYou have characterized findings by the Secretary of Labor regarding the\nunderrepresentation of women in the skilled crafts and construction industry as\nevidencing \xe2\x80\x9c the disabling effects of discrimination on women\xe2\x80\x99s participation\xe2\x80\x9d\nin these segments of the labor market.12 Your concern is to provide the\nloThe courts have similarly, but without direct reference to the "substantial relationship" test,\nheld that judicially imposed remedies designed to aid the victims of past discrimination must be\nprecisely tailored so as not to exceed the scope of the underlying injury. See, e.g.. Chance v. Board\no f Examiners, 534 F. (2d) 993, 999 (2d Cir. 1976), cert, denied, 431 U.S. 965 (1977) (rejecting\npreferential retention of female or minority employees during layoffs to the detriment of senior\nnonminority personnel where such victims of past discrimination have been made whole by their\nappointment to an appropriate job with an appropriate fictional hiring date).\n"F or example, a gender-based classification was struck down in Meloon v. Helgemoe, 564 F.\n(2d) 602 (1st Cir. 1977). In that case, the court relied rather heavily on New Hampshire\xe2\x80\x99s failure to\nprovide a sufficient justification for adoption of such a classification, striking down a criminal\nstatute which prohibited males from engaging in sexual intercourse with females under 15 but not\nlike conduct by females with males under 15.\nI 2 Y o u indicate that recently amended Labor Department regulations, 29 CFR Part 30, provide\nthat written affirmative action plans for apprenticeship programs registered with the Department or\nwith State agencies cover women, and include the establishment of goals and timetables. See 43 F.\nR. 20760 (May 12, 1978). At the time these regulations were promulgated the Department\nconcluded that "[i]f women are ever to be fairly represented in the skilled crafts, their entry into\napprenticeship programs must be greatly accelerated.\xe2\x80\x9d Id., at 20762. Although women constituted\n40.5 percent of the national labor force in 1976, id., at 20764, the Department found that\n[w]omen have had only limited participation in apprenticeship programs, which is how\nmany skilled craftsworkers enter their jobs . . . . [T]he proportion of women carpenters,\nelectricians, painters, plumbers, machinists, mechanics, stationary engineers, and a few\nother skilled trades ranged from less than 1 percent to about 3 percent of the total.\nAlthough the number of women apprentices increased by 74 percent in one year\n(1974-75) they still represented only i.2 percent of the total number of apprentices\nregistered. [Emphasis added.] [43 Fed. Reg. 20761]\nThe Department further found that while women were available and interested in entering the\nskilled trades "the longstanding reputation of the trade for excluding women discourages many\nwomen from applying for these jo b s.\xe2\x80\x9d Id., at 20763.\n\n276\n\n\x0cassistance necessary to eliminate these continuing effects of discrimination. To\nthat end the WOW program is designed to provide participants with remedial\ninstruction in mechanics, mathematics, and handling of tools, subjects which,\nduring high school, women may have been prevented or discouraged from\npursuing. The program seeks to provide an opportunity to review and reaffirm\nbasic skills and knowledge .in a supportive atmosphere, thereby bolstering\nself-confidence and commitment to a career in the skilled crafts or construction\nindustry. At the same time it also seeks to allay uncertainty and eradicate\nself-fulfilling doubts regarding prospects for success in jobs which women have\nin the past been discouraged from seeking. We believe that these are the types\nof substantial and legitimate governmental objectives that would satisfy the\nSupreme Court\xe2\x80\x99s gender-based equal protection analysis.\nOf greater concern is that the program satisfy the second part of the Court\xe2\x80\x99s\nrequirement, i.e., that there be demonstrated a substantial relationship between\nthe choice of a gender-based classification and the achievement of the\ngovernmental objectives. While the Department, as previously noted, has\nalready made certain findings concerning the underrepresentation of women in\nthe construction trades, care should be taken as fully as possible to identify\ndiscrimination in the particular fields for which training is proposed. Also,\nwomen generally suffer from discrete educational deficiencies in the fields of\nbasic mathematics, mechanics, and the manual arts. To support this generaliza\xc2\xad\ntion, an effort should be made to develop a factual record and to make findings\nwith regard both to the existence of discrimination that has deterred women\nfrom seeking employment in the fields of construction, auto repair, and\nelectronics, and with regard to practices of educational institutions that resulted\nin identifiable educational deficiencies specific to women. To the extent\npossible, these findings should be made both with reference to the Nation as a\nwhole and with reference to the metropolitan Washington area.13\nThe electronics training segment of the WOW program requires special\nconsideration because this training is somewhat different from the remedial\neducation and support services in the other training tracks. Although such\nservices are also provided during the first 2 months of the 14-month electronics\ncourse, the bulk of the training provided as part of the electronics segment\nsatisfies the requirement of an additional period of formal vocational education\nl3Section 301 authorizes funding of programs designed to remedy disadvantages found in general\nas well as in specific labor markets. Congress appears to have envisioned the use of title 111 funds\nto underwrite pilot programs capable of subsequent nationwide application. It may also be argued\nthat in light of the mobility of the population, where denial of employment or educational\nopportunities is alleged, the discrimination is not limited to that practiced in the immediate local\narea. Cf.. Gaston County v. United States, 395 U.S. 285 (1969). The case in support of the WOW\nprogram and others like it may nevertheless be significantly strengthened by reference to evidence\nof discrimination on the local level.\nWhile Agencies of the D.C. government or personnel affiliated with the WOW program may\nprovide necessary data or other evidence of local discrimination, findings of fact prepared by the\nDepartment of Labor would more surely constitute the sort of administrative findings envisioned by\nMr. Justice Powell in Bakke as a critical factor in sustaining an affirmative action program which\npurports to remedy past discrimination. See 438 U.S. at 307-310.\n\n277\n\n\x0cthat is regarded by employers in this field as a prerequisite before an applicant\nis considered eligible for employment.\nIn a number of cases the use of judicially imposed quotas or racially\nexclusive apprenticeship programs has been upheld by the courts.14 Those\nprograms were designed to correct inequities in the actual operation of existing\ntraining programs by providing instruction tailored to minority needs or were\nintended to create a parallel educational opportunity where entry into the\nexisting training structure has been effectively closed to members of minority\ngroups. The additional formal training which the WOW electronics program\nrepresents is justified in terms of a discriminatory denial of pertinent post\xc2\xad\nsecondary level opportunities for necessary vocational education. The findings\nof the Department of Labor demonstrate the exclusion of women from\napprenticeships in the skilled crafts generally and suggest that women have\nbeen discriminated against in training programs such as this one. However, the\nelectronics program does more than provide necessary supplemental training\ndesigned to make up for denial of pertinent high school level educational\nopportunities and goes beyond facilitating the entry into the job market of\neligible persons with requisite qualifications. Therefore, specific findings\xe2\x80\x94\nwhich link the need for provision of advanced training either directly to\ndiscriminatory practices in existing training programs or more indirectly to\nlimited participation training opportunities that have resulted from practices and\nperceptions of practices in the job market\xe2\x80\x94are important to support this\nparticular segment of the WOW program.\nVI.\nThe development of a detailed administrative record will aid significantly to\nsustain the legality of the WOW program in the event it is judicially challenged.\nWe believe, however, that because the racially exclusive nature of the Davis\nadmissions program proved to be perhaps the most significant factor in the\nBakke decision, you should carefully consider whether a continuation of the\nprogram\xe2\x80\x99s sexually exclusive approach is advisable.15\nI45?e, e.g.. Southern Illinois Builders Ass\xe2\x80\x99n v. Ogilvie , 471 F. (2d) 680 (7th Cir. 1972); United\nStales v. Ironworkers Local 86, 443 F. (2d) 544 (9th Cir. 1971), cert, denied, 404 U.S. 984\n(1971); Buckner v. Goodyear Tire <4 Rubber Co., 339 F. Supp. 1108 (N.D. Ala. 1972), a ffd , 476\nF. (2d) 1287 (5th Cir. 1973). But see, Weber v. Kaiser Aluminum <\xc2\xa3 Chemical Corp., 563 F. (2d)\n216 (5th Cir. 1977), 443 U.S. 193 (1979).\n\'\xe2\x80\x99Particular care should be taken to justify the choice of a racially or sexually exclusive approach\nundertaken by an Agency in the absence of an explicit congressional determination and directive\nthat this sort of a remedial affirmative action program is necessary in light of the inadequacy of\nother alternative approaches. The utilization of a program designed along exclusive lines is justified\nwhere undertaken pursuant to express congressional authorization. The adoption of a sexually\nexclusive program such as WOW which is undertaken pursuant to CETA presents what appears to\nbe a middle case. While it may be inferred from the underlying congressional authorization that\nsuch a program would be consistent with the statutory scheme, an explicit congressional directive\nthat programs drawn along these lines be employed is lacking. We therefore believe that the\nDepartment should consider and specify the reasons why it believes that the adoption of a sexually\nexclusive approach to the administration of the W OW program is warranted.\n\n278\n\n\x0cCertain cases suggest that the use of an adequately justified gender-based\nclassification providing a remedial preference solely for women will be upheld.\nSee, Califano v. Webster, supra; Kahn v. Shevin, supra; Schlesinger v.\nBallard, supra. It is not clear, however, what effect the Bakke decision has had\nin this area. The four justices in the Brennan group applied the standard\napplicable to classifications based on sex and upheld the program.\nMoreover, we believe that this program can be distinguished from the one\nstruck down by the Court in Bakke. First, the authorization to fund a sexually\nexclusive program can be inferred from a statute that explicitly directs the\nSecretary to use Federal funds to provide services, employment, and training\nprograms for women. Second, if appropriate findings, as outlined above, are\nmade, they will establish a factual predicate of past discrimination closely\nrelated to the aims of the remedial program. Third, the nature of the exclusion\nhere is significantly different from that present in the program held to be\nunlawful in Bakke. It is harder to identify the practical harm to the men who are\nexcluded from this program since the program has been newly established in\norder to expand the pool of qualified job applicants by providing training to a\nclass that has suffered discrimination in the past. Men can continue to enter the\ntrade through the same apprenticeship programs that they have used in the past.\nNevertheless, the law in this area is far from clear and risks exist in funding a\nsexually exclusive program. Critical to Mr. Justice Powell\xe2\x80\x99s pivotal opinion is\nthe view that for a racially exclusive classification to be sustained, some\nsignificant justification for a departure from the norm of equal access for all and\ndistribution of benefits according to individual merit or need must be provided.\nSuch a justification may also be required where a sexually exclusive classifica\xc2\xad\ntion is employed, albeit that it may be subjected to a less stringent standard than\nthat applicable under Bakke, where racial classifications are utilized. In either\nevent, where the aims of a program can be effectively accomplished without the\nadoption of an exclusive classification the exclusivity might be seen as\ninsufficiently justified.\nTo our knowledge, no attempt has been made formally to justify the decision\nto administer the WOW program along sexually exclusive lines. One possible\nargument in favor of this approach is that it serves more efficiently to funnel\nbenefits to those presumed by the statute to need them most. In most\ncircumstances, however, administrative convenience alone has not proved to be\nan adequate governmental interest to sustain gender-based classifications.16\nAlternatively, while it is doubtful that a sexually exclusive training program\ncould properly be maintained, in this case, since counseling is an integral and\ninseparable aspect of the WOW training process, the exclusion of men from the\ncounseling or training sessions appreciably increases the program\xe2\x80\x99s efficacy in\nbreaking down participants\xe2\x80\x99 self-doubts and stereotyped visions of themselves.\nIt might, moreover, be shown that because of past discrimination and their\nlimited access to training in the industrial and manual arts and related subjects,\nl6Sf\xe2\x82\xac, e.g., Califano v. Goldfarb, supra, at 217.\n\n279\n\n\x0cwomen suffer from particularly severe and distinctive deficiencies in skill and\nknowledge relating to mechanics and tools so as to justify channeling available\nfunds to their sole benefit. Broad assumptions or assertions based upon\noutmoded stereotypes alone, may not, in any event, serve as adequate\njustification for adoption of gender-based classifications, and selection criteria\ncould better be structured to include women rather than outright prohibiting\nmen from participation in the program.17\nWe recommend that based on the son of findings described above, a\nrebuttable presumption be adopted that women who meet the program\xe2\x80\x99s\neligibility requirements, more than others, have suffered from discrimination\nand its lingering effects. However, the applications of males who might also\nhave been victims of similar discrimination in the job market or who, in their\neducational careers, have likewise been discouraged from developing basic\nmechanical and manual skills, should likewise be considered.\nThe program still could continue to focus primarily on women. For instance,\nwe see no reason why the program\xe2\x80\x99s name needs to be changed. Nor do we see\nany legal reason why those who administer the program cannot openly take\nsteps designed to attract female applicants. Our advice is that, in light of Bakke,\nyou should carefully consider reasonable alternatives that are not sexually\nexclusive and which would effectively accomplish the goals of the program.\nThe objectives of the WOW program, as we understand them, are certainly\nimportant governmental interests. We do not here discourage in any way the\nachievement of those objectives.\nJo h n M . H a r m o n\n\nAssistant Attorney General\nOffice of Legal Counsel\n\nn ld.\n\n280\n\n\x0c'


b'August 16, 1979\n\n79-60\n\nMEMORANDUM OPINION FOR THE\nCOUNSEL TO THE PRESIDENT\nPolitical Contributions by Federal Employees\n(18 U.S.C. \xc2\xa7\xc2\xa7 602, 607)\n\nThis responds to your m em orandum concerning the interpretation o f 18\nU .S.C . \xc2\xa7\xc2\xa7 602 and 607, which pertain to political contributions by Federal\nemployees.\nThe first question you pose is whether, under 18 U.S.C. \xc2\xa7 607, Federal\nemployees may voluntarily make political contributions to the CarterM ondale Presidential Committee. Section 607 criminalizes the giving by\none Federal employee to any other Federal employee or officer o f any\nvaluable thing \xe2\x80\x9c to be applied to the prom otion o f any political object.\xe2\x80\x9d\nThe Civil Service Commission (now the Office o f Personnel Mangement),\nhowever, has prom ulgated regulations pursuant to the H atch Act ex\xc2\xad\npressly permitting Federal employees to \xe2\x80\x9c make a financial contribution to\na political party or organization.\xe2\x80\x9d 5 CFR \xc2\xa7 733.111(a)(8) (1978). This\nDepartm ent, consequently, does not currently view voluntary contribu\xc2\xad\ntions made to political organizations, including committees that support\nincumbent Federal officers for reelection, as prosecutable violations under\n\xc2\xa7 607.\nThe second question you posed concerns 18 U .S.C . \xc2\xa7 602. That statute\nprohibits any Federal officer from being \xe2\x80\x9c in any m anner concerned in\nsoliciting or receiving * * * for any political purpose whatever\xe2\x80\x9d\nanything o f value from another Federal officer or employee. The issue\npresented is whether the President would be deemed \xe2\x80\x9c in any manner con\xc2\xad\ncerned\xe2\x80\x9d with soliciting political contributions from Federal employees on\nthe sole ground that otherwise lawful contributions were made by Federal\nemployees to his political committee that would benefit his campaign.\nSection 602 proscribes activities by Federal officers or employees in\xc2\xad\ntended to coerce political contributions by other Federal officers or\nemployees. Liability under \xc2\xa7 602 depends on the acts o f the Federal officer\nor employee involved. Assuming that the President, or any other Federal\n324\n\n\x0cofficer or employee, in no way acted directly or indirectly with the object\no f securing contributions from other Federal officers or employees, he\nwould not be vicariously liable under \xc2\xa7 602 solely because an otherwise\nlawful contribution by a Federal employee had been made to his\ncampaign.\nFor your inform ation, this Departm ent is prepared to give assistance to\ncandidates and political committees by providing general inform ation with\nrespect to the interpretation o f the criminal laws concerning campaign ac\xc2\xad\ntivities. Inquiries may be directed by any such party to the Assistant A t\xc2\xad\ntorney General in charge o f the Criminal Division. In addition to the\nguidance this Office may provide concerning the duties and obligations o f\nFederal employees, the President, like other concerned persons would, of\ncourse, be entitled to such general information.\nLarry A . H\n\nammond\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n325\n\n\x0c'


b'Participation of the Vice President in the\nAffairs of the Executive Branch\nThere is no general bar, either of a constitutional or statutory nature, against the President\xe2\x80\x99s transfer of\nduties to the Vice President; however, where, by the nature of the duty or by express constitutional\nor statutory delegation, the President must exercise individual judgment, the duty may not be\ntransferred to anyone else.\nIn foreign relations, at the will and as the representative of the President, the Vice President may\nengage in activities ranging into the highest levels of diplomacy and negotiation and may do so\nanywhere in the world.\nIn matters of domestic administration, the nature and number of the Vice President\xe2\x80\x99s executive duties\nare, as a practical matter, within the discretion of the President, with the recent and important\nexception of statutory membership on the National Security Council. Since the Vice President is not\nprevented either by the Constitution or by any general statute from acting as the President\xe2\x80\x99s delegate, the range of transferrable duties would seem to be co-extensive with the scope of the President\xe2\x80\x99s power of delegation.\n\nMarch 9, 1961\n\nMEMORANDUM OPINION FOR THE VICE PRESIDENT\nThis memorandum is in response to your recent request concerning the extent\nto which the Vice President may properly perform functions in the Executive\nBranch of the government.\nThe Constitution allots specific functions to the Vice President in the transaction of business by the Legislative Branch of the government (art. I, \xc2\xa7 3) but\nneither grants nor forbids him functions in the conduct of affairs of the Executive\nBranch. The extent to which he may properly take part in those affairs must be\nassessed primarily in terms of historical precedents. 1 The courts have not had\noccasion to consider this matter and judicial precedents do not exist.\nI. Presidential Powers of Delegation\nAs will be seen below, the role of the Vice President in the Executive Branch\nhas varied greatly through the years and at any given time has been determined\nlargely by the President. A brief reference to the latter\xe2\x80\x99s powers of delegation is\nthus pertinent. It has long been recognized that the President has the power to\n\n1\nThere is no inherent conflict between the legislative role given to the Vice President by the\nConstitution and any executive duties he may be called upon to carry out. As pointed out by one writer,\n\xe2\x80\x9c[t]he Founding Fathers never intended to immobilize the second officer in the chair of the Senate, for\nthey empowered that body to choose a President pro tempore, in the absence of the Vice President.\xe2\x80\x9d\nIrving G. Williams, The American Vice-Presidency: New Look 70 (1954) (internal quotation marks\nomitted). Nixon once estimated that he spent only ten percent of his time presiding over the Senate.\nNixon: Likes His Job\xe2\x80\x94Happy, Working Hard, U.S. News & World Rep., June 26, 1953, at 71.\n\n214\n\n\x0cParticipation of the Vice President in the Affairs of the Executive Branch\n\ndelegate tasks for which he is responsible and that \xe2\x80\x9cin general, when Congress\nspeaks of acts to be performed by the President, it means by the executive\nauthority of the President.\xe2\x80\x9d Relation of the President to the Executive Departments, 7 Op. Att\xe2\x80\x99y Gen. 453, 467 (1855) (Cushing, A.G.). In 1950, Congress\nexpressly gave the President broad authority to delegate to department and agency\nheads, and to certain lesser officials, functions vested in him by law if such law\ndid not affirmatively prohibit delegation. Pub. L. No. 81-673, 64 Stat. 419\n(codified at 3 U.S.C. \xc2\xa7\xc2\xa7 301\xe2\x80\x93303). This legislation, which was designed to lighten\nthe burden of the President by permitting him to slough off without question a\nsubstantial number of tasks thought by some authorities to require his personal\nattention,2 recognized the \xe2\x80\x9cinherent right of the President to delegate the performance of functions vested in him by law\xe2\x80\x9d and specifically disavowed any intention to limit or derogate from that right. 3 U.S.C. \xc2\xa7 302. Thus, there is no general\nbar, either of a constitutional or statutory nature, against the President\xe2\x80\x99s transfer of\nduties to the Vice President. It remains to be noted, however, that\n[w]here . . . from the nature of the case, or by express constitutional\nor statutory declaration, it is evident that the personal, individual\njudgment of the President is required to be exercised, the duty may\nnot be transferred by the President to anyone else.\n3 Westel Woodbury Willoughby, Constitutional Law of the United States \xc2\xa7 961, at\n1482 (2d ed. 1929).\nThe President\xe2\x80\x99s obligation to pass on bills sent to him by Congress is one\nexample of a non-delegable duty. The exercise of judgment required by 49 U.S.C.\n\xc2\xa7 1461 in the matter of the certification of overseas air transport routes may well\nbe another.\nII. History\nThe history of the Vice Presidency begins with the last period of the Constitutional Convention of 1787.3 During most of the Convention the delegates had\nsought to perfect a plan whereby the Congress would elect the President and, if\nnecessary, his successor to fill an unexpired term. However, dissatisfaction with\nthis method ultimately led to the creation of the Electoral College and the office of\nVice President. Under the original provisions of the Constitution (art. II, \xc2\xa7 1) each\nelector voted for two persons for President, and the person receiving the highest\n\n2\n\nS. Rep. No. 81-1867 (1950).\nThe brief history set forth in the following portion of this memorandum has been digested mainly\nfrom the work of Irving G. Williams (supra note 1) and a later and expanded work by the same author,\nThe Rise of the Vice Presidency (1956). Attached as an appendix to this memorandum is a list\ncontaining other recent source material bearing on the office of the Vice Presidency.\n3\n\n215\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nnumber of votes became President if such number was a majority of the whole\nnumber of electors appointed by the States. The runner-up in the balloting became\nVice President. The present system of separate electoral balloting for the offices of\nPresident and Vice President was established following the tie in the electoral vote\nof 1800 between Jefferson, who was the first choice of the Republican Party of the\nday, and Burr, also a Republican, intended by his Party for the Vice Presidency.\nBurr\xe2\x80\x99s refusal to step aside together with the tactics of the strong Federalist bloc in\nthe \xe2\x80\x9clame duck\xe2\x80\x9d House of Representatives into which the election was thrown\nnecessitated 36 ballots before Jefferson was elected. This crisis, which was the\noutcome of the unforeseen growth of the party system, four years later produced\nthe Twelfth Amendment requiring the members of the Electoral College to vote\nfor one individual for President and another for Vice President.\nJohn Adams, the first Vice President, was one of the most influential. He originally conceived of his Constitutional duties in the Chair of the Senate as tantamount to leadership, and, to some extent because of the great number of casting\nvotes occasioned by the small roster of the Senate, played a decisive part in its\nwork during the first few years of its existence. Later, as it increased in membership and its organization and procedures were strengthened, his influence was\ngreatly diminished. On the executive side, he enjoyed Washington\xe2\x80\x99s confidence\nand was consulted by him frequently, particularly in regard to diplomatic matters.\nHowever, despite his extensive experience in diplomacy abroad, Adams in 1794\nrejected a suggestion that he travel to England to negotiate a commercial treaty,\ntaking the position that the Constitution required him to preside over the Senate. In\naddition, he questioned the propriety of leaving the country in view of the\nnecessity of his taking over the Presidency in case the office became vacant. This\ndubious precedent, followed in 1797 by a similar refusal by Jefferson to carry on\ndiplomatic negotiations in France when he was Vice President under Adams, held\ngood until 1936 when Garner made trips to the Far East and to Mexico on official\nbusiness.\nThe Twelfth Amendment had a prompt and unfortunate effect on the Vice\nPresidency as appears from the contrast between the abilities and attainments of\nAdams, Jefferson and Burr, who held it prior to the adoption of the Amendment,\nand the lackluster of Clinton, Gerry, and Tompkins, who served during the next\ntwo decades. Calhoun and Van Buren, the next occupants of the office, lent great\nprestige to it, but not Van Buren\xe2\x80\x99s successor, Richard M. Johnson, whose main\nclaim to distinction seems to be that he failed of a majority in the Electoral\nCollege and become the only Vice President in the country\xe2\x80\x99s history to be elected\nby the Senate. John Tyler, the next Vice President, served a term of one month,\nsucceeding to the Presidency upon the death of William Henry Harrison on\nApril 4, 1841, the first of a Chief Executive in office. Tyler took the presidential\noath believing and contending that the office of President had devolved on him\n\n216\n\n\x0cParticipation of the Vice President in the Affairs of the Executive Branch\n\nand not merely its powers and duties. 4 Many members of the Congress and others,\nincluding former President John Quincy Adams, took sharp issue and argued that\nTyler was merely \xe2\x80\x9cacting\xe2\x80\x9d President. Whatever the merits of the controversy,\nTyler\xe2\x80\x99s position prevailed. All Vice Presidents succeeding to the Presidency after\nhim followed his lead, and his view was written into the Constitution by the\nlanguage of the Twenty-Second Amendment.\nFrom Tyler\xe2\x80\x99s time to that of Woodrow Wilson, the office of the Vice Presidency by and large played an unimportant part in the government except for providing\nFillmore, Andrew Johnson, Arthur and Theodore Roosevelt as successors to the\nPresidency upon the deaths of Taylor, Lincoln, Garfield and McKinley.\nThomas R. Marshall, Vice President during both of Wilson\xe2\x80\x99s terms, brought the\noffice back into public esteem and ultimately became the most popular Vice\nPresident up to his time. The first after Calhoun to win reelection, Marshall was\nalso the first after John Adams to attend a Cabinet meeting. Adams had sat in at a\nmeeting in 1791 on Washington\xe2\x80\x99s request while the latter was on a tour of the\nSouth. Similarly, at the request of Wilson, concurred in by the Cabinet, Marshall\npresided over its meetings during Wilson\xe2\x80\x99s attendance at the Paris Peace Conference. The temporary seat in the Cabinet afforded to Marshall became Coolidge\xe2\x80\x99s\npermanent seat at the invitation of Harding. On the other hand, Dawes, who was\nVice President during Coolidge\xe2\x80\x99s elected term, refused to follow his example and\nattended no meetings of the Cabinet whatever. Curtis was not asked to sit during\nHoover\xe2\x80\x99s term and it was only after the election of Franklin D. Roosevelt, and\nbeginning in 1933 with Garner, that participation by the Vice President in the\ndeliberations of the Cabinet became a matter of course.\nWhat has been called the \xe2\x80\x9ccontemporary renaissance\xe2\x80\x9d of the Vice Presidency5\nstems in large part from the second Roosevelt\xe2\x80\x99s reliance on the men who served in\nthat office during his administrations. Garner\xe2\x80\x99s aid to Roosevelt was important in\nhis first term, particularly in the area of congressional liaison. Garner also made\nhis presence felt in the Cabinet and, further, was often asked by Roosevelt for his\nviews on matters of foreign policy. As mentioned above, Garner broke the\nnegative precedent set by the first Adams, and in 1936 became the first Vice\nPresident in office to travel beyond the country\xe2\x80\x99s borders in an official capacity.\nBy the end of his first term, Garner began to have misgivings about the New\nDeal and by the middle of his second he was completely out of sympathy with\nRoosevelt\xe2\x80\x99s policies. In the last days of 1938 both Roosevelt and he recognized\nthat they had come to the parting of the ways and at the close of 1939 Garner\n\n4\nArticle II, Section 1 of the Constitution provides that \xe2\x80\x9cIn Case of the Removal of the President\nfrom Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said\nOffice, the same shall devolve on the Vice President . . . .\xe2\x80\x9d Tyler took the position that the word \xe2\x80\x9csame\xe2\x80\x9d\nrelated back to the word \xe2\x80\x9cOffice.\xe2\x80\x9d\n5\nWilliams, American Vice-Presidency, supra note 1, at 9.\n\n217\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nannounced himself a candidate for the Presidency in the election of the following\nyear. Although Garner continued to attend Cabinet meetings until the expiration of\nhis second term, he obviously was little more than an observer after 1938. Thus,\nthe powerful and useful partnership of the President and Vice President, probably\nwithout prior parallel except for the Washington-Adams relationship, came to an\nunfortunate end after some five years and the Executive Branch reverted to a sole\nproprietorship.\nDuring Roosevelt\xe2\x80\x99s third term the executive partnership with the Vice Presidency was revived and Wallace received responsibility and power in measures\nnever known to a Vice President before and, in certain aspects, not known to one\nsince. Only in the more or less traditional task of congressional liaison were\nWallace\xe2\x80\x99s activities limited\xe2\x80\x94and then not because of a presidential interdiction\nbut rather by reason of Wallace\xe2\x80\x99s lack of talent for and interest in this facet of the\nVice President\xe2\x80\x99s work.\nWallace\xe2\x80\x99s major duties in the Executive Branch began on July 30, 1941, when\nthe President issued Executive Order 8839 (6 Fed. Reg. 3823, 3823) creating the\nEconomic Defense Board composed of the Vice President, who was designated\nChairman, and several Cabinet officers. The stated purpose of the Board was to\ndevelop and coordinate \xe2\x80\x9cpolicies, plans, and programs designed to protect and\nstrengthen the international economic relations of the United States in the interest\nof national defense.\xe2\x80\x9d Four weeks later, Executive Order 8875 of August 28, 1941\n(6 Fed. Reg. 4483, 4484) created the Supply Priorities and Allocations Board\n(\xe2\x80\x9cSPAB\xe2\x80\x9d), consisting of the Chairman of the Economic Defense Board (Wallace),\na number of Cabinet officers, and the heads of a number of emergency agencies.\nWallace was named Chairman of the SPAB presumably to coordinate the\ndomestic and international economic defense programs. Finally, Wallace was\nmade a member of a presidential advisory committee on atomic energy created in\nOctober 1941, together with Secretary of War Stimson, Chief of Staff Marshall,\nDr. Vannevar Bush, and Dr. James B. Conant. According to Stimson, this\ncommittee was the basic agency for making major policy decisions on the\ndevelopment and use of atomic energy.\nWallace\xe2\x80\x99s work on the SPAB was of relatively short duration because the\nAgency was abolished shortly after Pearl Harbor and replaced by the greatly\nexpanded War Production Board with Donald Nelson, the Executive Director of\nthe superseded SPAB, as its full time Chairman. Wallace\xe2\x80\x99s membership on the\natomic energy committee continued throughout his whole term but because of the\nsecret nature of the committee it is of course impossible to evaluate his contribution to its work.\nIt was in the first of his major Executive Branch assignments, the Economic\nDefense Board (renamed the Board of Economic Warfare (\xe2\x80\x9cBEW\xe2\x80\x9d) a few days\nafter Pearl Harbor), that Wallace had responsibilities and carried out duties unique\nin the history of the Vice Presidency. The order setting up the Board had directed\n\n218\n\n\x0cParticipation of the Vice President in the Affairs of the Executive Branch\n\nthat the administration of economic defense activities in the international field by\nthe various government departments and agencies \xe2\x80\x9cshall conform to the policies\nformulated or approved by the Board.\xe2\x80\x9d Exec. Order No. 8839, 6 Fed. Reg. at 3823.\nThus, owing to the scope of the activities embraced within the concept of \xe2\x80\x9ceconomic defense,\xe2\x80\x9d Wallace in a variety of situations became the superior of every\nCabinet officer and most of the important independent agency heads. The ubiquity\nof the BEW and the boldness and tenacity of its staff embroiled it soon after Pearl\nHarbor in a series of running battles over policy with other government agencies,\nincluding specifically the Department of State and the Reconstruction Finance\nCorporation. The course of these battles need not be detailed here and it is enough\nto note that conflicts with the latter two powerful agencies led to the BEW\xe2\x80\x99s\ndownfall. In the summer of 1943 the President removed Wallace as its Chairman\nand then terminated it.\nIt is generally agreed that the BEW performed its work well and substantially\nfurthered the war effort. Its demise is therefore not to be laid to any difficulties\ninherent in the dual role of Vice President and Chairman played by Wallace. The\nreal trouble was frequent policy disagreement reflecting a clash of Wallace\xe2\x80\x99s\nliberal views with the relatively conservative views of Secretary of State Hull and\nRFC Chairman Jones.\nIn addition to his domestic duties Wallace undertook tasks farther afield. Continuing Garner\xe2\x80\x99s example, he made several trips to Latin America as a good-will\nambassador and in 1944 traveled to the Far East on a combined political and goodwill mission.\nFollowing Wallace, Truman sat with the Cabinet during his short service as\nVice President, as did Barkley after he became Vice President in 1949. In the same\nyear Congress at the request of Truman made the Vice President a statutory\nmember of the National Security Council. National Security Act Amendments of\n1949, Pub. L. No. 81-216, \xc2\xa7 3, 63 Stat. 578, 579 (codified at 50 U.S.C. \xc2\xa7 402(a)).\nThus, the combination of Cabinet and National Security Council service placed the\nVice President in a position to keep informed about the most important affairs of\nthe nation and to join in the making of policy at the highest levels.\nNixon carried out perhaps a greater variety of duties than any of his predecessors. In his first year of office he became and thereafter remained Chairman of the\nPresident\xe2\x80\x99s Committee on Government Contracts. He attended and in the absence\nof the President presided at Cabinet meetings and meetings of the National\nSecurity Council. He acted as a \xe2\x80\x9ctrouble-shooter\xe2\x80\x9d for the White House in its\ndealings with Congress and in matters political. And he was prominent in the field\nof foreign relations, traveling in other lands to an extent much greater than any of\nhis predecessors and apparently having a significant voice from time to time in the\nEisenhower Administration\xe2\x80\x99s formulation of foreign policy.\nFrom this brief outline of the history of the Vice Presidency, it is apparent that\nduring the past half century, and markedly since 1933, the office has moved closer\n\n219\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nand closer to the Executive. This development, aided by the deference of the party\nnominating conventions to their presidential nominees in the selection of running\nmates, is easily understandable when related to the enormous increase in the\nresponsibilities and burdens of the Presidency which took place concurrently.\nIII. Limits of Vice President\xe2\x80\x99s Part in Work of Executive Branch\nIn considering what the proper limits of the role of the Vice President in the\nExecutive Branch may be, it is convenient to discuss separately the two areas of\nforeign affairs and domestic administration. In the former area, it is evident that at\nthe will and as the representative of the President, the Vice President may engage\nin activities ranging into the highest levels of diplomacy and negotiation and may\ndo so anywhere in the world. 6 The refusal of John Adams during the Washington\nAdministration to engage in such activities abroad cannot be given any weight at\nthe present time. His reasons, good or bad as they were, have been obviated by the\nfact that lengthy absences of the Vice President from the Senate have become the\ncustom and not the exception and the fact that, even if abroad, the Vice President\nwould today be able to return to the seat of government within hours in the event\nthe office of President became vacant. Indeed, Adams either advanced the reasons\nmerely as an excuse or soon changed his mind, for the day before his own\npresidential administration began he asked Vice President-elect Jefferson to\nundertake the same kind of task he himself had declined. Jefferson\xe2\x80\x99s rejection of\nthe request, ostensibly based on Adams\xe2\x80\x99s own grounds, was really motivated by\npolitical considerations.7 At any rate, aside from location, the propriety of\nassignments to the Vice President in the field of foreign relations was plainly\ntaken for granted in the beginning years of our history and justifiably so in the\nabsence of any constitutional proscription, express or implied. Nothing that has\noccurred since then suggests that this earlier assumption was incorrect.\nIn matters of domestic administration, the nature and number of the Vice President\xe2\x80\x99s executive duties, with the recent and important exception of statutory\nmembership in the National Security Council, are, as a practical matter, within the\ndiscretion of the President. Since the Vice President is not prevented either by the\nConstitution or by any general statute from acting as the President\xe2\x80\x99s delegate, the\nrange of transferrable duties would seem to be co-extensive with the scope of the\nPresident\xe2\x80\x99s power of delegation. The outer limits of that range were approached, if\nnot touched, by Wallace\xe2\x80\x99s post as Chairman of the BEW. Although that presiden6\nFor a discussion of the President\xe2\x80\x99s right to employ diplomatic agents without the concurrence of\nthe Senate despite his obligation under Article II, Section 2, Clause 2 of the Constitution to submit for\nits advice and consent his nominations of \xe2\x80\x9cAmbassadors, other public Ministers and Consuls,\xe2\x80\x9d see\nLegislative Reference Serv., Library of Cong., The Constitution of the United States of America:\nAnalysis and Interpretation, S. Doc. No. 82-170, at 447\xe2\x80\x9349 (Edward S. Corwin ed., 1953).\n7\nWilliams, Rise of the Vice Presidency, supra note 3, at 25.\n\n220\n\n\x0cParticipation of the Vice President in the Affairs of the Executive Branch\n\ntial assignment was the outgrowth of war, there is no visible bar to commensurate\nposts for the Vice President in other times.\nThe Vice President\xe2\x80\x99s formal domestic assignments from the President in recent\nyears\xe2\x80\x94that is, his seat with the Cabinet and his chairmanship of the Committee on\nGovernment Contracts\xe2\x80\x94are beyond doubt consistent with the Constitution and\nlaws. The statutory duty of the Vice President as a member of the National\nSecurity Council is to advise the President. 50 U.S.C. \xc2\xa7 402(a). Thus, the Vice\nPresident\xe2\x80\x99s affiliation with that body partakes of the same character as his service\nwith the Cabinet and raises no constitutional questions. The same would be true of\nhis statutory membership on the advisory National Aeronautics and Space Council\n(42 U.S.C. \xc2\xa7 2471(a)) if, as the President recently stated he would recommend to\nCongress,8 the latter body were to amend the present law to provide for such\nmembership.\nA caveat is appropriate with respect to bestowals of functions upon the Vice\nPresident by Congress. To the extent that legislation might attempt to place power\nin the Vice President to be wielded independently of the President, it no doubt\nwould run afoul of Article II, Section 1 of the Constitution, which provides flatly\nthat \xe2\x80\x9c[t]he executive Power shall be vested in a President of the United States.\xe2\x80\x9d\nFurthermore, since the Vice President is an elective officer in no way answerable\nor subordinate to the President, the practical difficulties which might arise from\nsuch legislation are as patent as the constitutional problem.\nIV. Separation of Powers\nIn the course of the brief discussion of the office of the Vice President at the\nConstitutional Convention, some of the delegates complained that making him the\npresiding officer of the Senate would blur the separation of powers between the\nExecutive and Legislative Branches. In particular, they seemed to fear that the\nPresident would somehow gain ascendance over the Senate through the Vice\nPresident.9 Inasmuch as the chair of the Senate has had a relatively unimportant\npart in its proceedings since the time it was held by John Adams, this complaint\nhas proved groundless. Thus, active as a Vice President may be in the conduct of\nthe business of the Executive, it is difficult to perceive that as a practical matter his\nservice in the Senate would diminish the powers of the Legislature. However, in\nthe event that the Senate were to take up a bill affecting a specific executive\nactivity the Vice President was engaged in, it would of course be the better part of\ndecorum and prudence for him to absent himself from the chair.\n\n8\nThe President\xe2\x80\x99s News Conference of March 1, 1961, Pub. Papers of Pres. John F. Kennedy 135,\n138 (1961).\n9\nWilliams, Rise of the Vice Presidency, supra note 3, at 19.\n\n221\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nAside from practicalities, it does not appear that doctrinal considerations block\nthe Vice President\xe2\x80\x99s performance of important functions in the Executive Branch.\nDespite his position as President of the Senate, he is certainly not one of its\nmembers.10 Nor can he be convincingly described as a third member of the\nLegislative Branch alongside the two houses of Congress. His office was created\nby Article II of the Constitution dealing with the Executive Branch, and Section 4\nof that article makes him, just as the President, subject to impeachment by the\nLegislative Branch. Since the power of impeachment is a check devised to\nsafeguard the principle of separation of powers against depredations by the\nExecutive, it is troublesome conceptually to categorize the Vice President as a\nmember of the Legislature.\nPerhaps the best thing that can be said is that the Vice President belongs neither\nto the Executive nor to the Legislative Branch but is attached by the Constitution\nto the latter. Whatever the semantic problems, however, they would not seem to be\nespecially relevant to the question whether the President or Congress may\ndesignate the Vice President to undertake executive responsibilities. As Mr.\nJustice Holmes once noted in a similar context, \xe2\x80\x9c[t]he great ordinances of the\nConstitution do not establish and divide fields of black and white. Even the more\nspecific of them are found to terminate in a penumbra shading gradually from one\nextreme to the other.\xe2\x80\x9d11 If a judicial test of the employment of the Vice President in\nthe affairs of the Executive were ever to occur, there is little reason to think that it\nwould be decided purely on the basis of abstractions. To the contrary, the comparative silence of the Constitution in regard to the Office of the Vice President\nvirtually guarantees that the decision would be based primarily on considerations\nof practice and precedent. In short, theoretical arguments drawn from the doctrine\nof separation of powers merit little attention in the face of history, like that to the\npresent, disclosing that the Office of the Vice President has become a useful\nadjunct to the Office of the President without causing harm to the Legislative\nBranch.\nV. Conclusion\nTo sum up, what was once essentially a bare waiting room for the Presidency\nhas become a lively office participating more and more in the affairs of the\n\n10\nArticle I, Section 6, Clause 2 of the Constitution provides that \xe2\x80\x9cno Person holding any Office\nunder the United States, shall be a Member of either House during his Continuance in Office.\xe2\x80\x9d Since\nthe Vice President holds \xe2\x80\x9can Office under the United States,\xe2\x80\x9d it would do violence to this language to\nargue that the Founding Fathers conceived of him as a member of the Senate. Moreover, Clauses 1\nand 2 of Article I, Section 5, which provide that each House shall be the judge of the elections, returns,\nand qualifications of its own members and may punish and expel them, plainly do not apply to the Vice\nPresident.\n11\nSpringer v. Philippine Islands, 277 U.S. 189, 209 (1928) (dissenting).\n\n222\n\n\x0cParticipation of the Vice President in the Affairs of the Executive Branch\n\nExecutive. Such participation has not threatened the unity of the Executive. Unless\nit should do so in the future, it will not meet a constitutional bar.\nNICHOLAS deB. KATZENBACH\nAssistant Attorney General\nOffice of Legal Counsel\n\n223\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nAPPENDIX\nSelect Bibliography of Recent Material on the Vice Presidency\nBooks\nPeter R. Levin, Seven by Chance: The Accidental Presidents (1948).\nRuth C. Silva, Presidential Succession (1951).\nIrving G. Williams, The American Vice-Presidency: New Look (1954).\nIrving G. Williams, Rise of the Vice Presidency (1956).\nEdgar Wiggins Waugh, Second Consul (1st ed. 1956).\nArticles and Other Material\nClinton L. Rossiter, The Reform of the Vice-Presidency, 63 Pol. Sci. Q. 383\n(1948).\nG. Homer Durham, The Vice-Presidency, 1 W. Pol. Q. 311 (1948).\nLucius Wilmerding, Jr., The Vice Presidency, 68 Pol. Sci. Q. 17 (1953).\nMartin Packman, Vice Presidency, 1 Editorial Res. Rep. 239 (1956).\nAdministrative Vice President: Hearings Before the Subcomm. on Reorganization\nof the S. Comm. on Government Operations, 84th Cong. (1956).\nSubcommittee on Reorganization, S. Comm. on Government Operations, Proposal\nto Create an Administrative Vice President, S. Rep. No. 84-1960 (1956).\n\n224\n\n\x0c'


b"Restructuring the Relationship Between the Federal\nGovernment and Radio Free Europe/Radio Liberty\nN o impermissible conflict o f interest arises from the practical identity o f g ra n to r and\ngrantee o f federal funds, w here such an arrangem ent has been authorized b y federal\nstatute.\nN o separation o f pow ers concern is im plicated by C ongress' appropriation o f funds\ndirectly to a private entity w hose functions relate exclusively to the flow o f inform a\xc2\xad\ntion; nor does this situation raise a problem o f excessive delegation o f governm ent\nauthority to the private sector.\n\nJanuary 23, 1981\nM EM ORANDUM O PIN IO N FOR T H E BOARD OF\nIN TER N A TIO N A L BROA DCA STING\nThis responds to your request for the opinion of this Office on two\nquestions relating to the possible restructuring of the relationship be\xc2\xad\ntween the federal government and Radio Free Europe/Radio Liberty,\nIncorporated (R FE/R L ).\nR F E /R L is a private nonprofit corporation entirely dependent upon\nfederal funds, which it receives under an annual grant from the Board\nfor International Broadcasting (BIB), a federal entity created in 1973\npursuant to Pub. L. No. 93-129, 87 Stat. 456 (1973). Under this law, the\nBIB is responsible for ensuring the continuation of R F E /R L as an\nindependent broadcast medium; at the same time BIB is also charged\nwith ensuring that its grants to R F E /R L are applied in a manner not\ninconsistent with the broad foreign policy objectives o f the U.S. gov\xc2\xad\nernment. Pursuant to these complementary statutory mandates, the\nboard of directors of R F E /R L operates under the general oversight of\nthe BIB and is subject to its direction in matters of concern to the U.S.\ngovernment.\nProposals to reform or simplify the relationship between the federal\ngovernment and R F E /R L have generally taken the form of merging\nthe private and public boards, or eliminating one of them. One such\nsuggestion, which was reported out of the Senate Foreign Relations\nCommittee in 1977 but defeated on the floor, was to condition further\ngrants to R F E /R L on having the presidentially appointed members of\n51\n\n\x0cthe BIB also serve as the board o f directors o f R F E /R L . Another more\nrecent proposal is that the BIB be abolished and funds appropriated\ndirected to R F E /R L .\nW ith respect to the first proposal, you ask whether any conflict of\ninterest arising from the practical identity o f grantor and grantee would\npose a legal problem. If such an arrangement were in fact incorporated\ninto the statute as was proposed in 1977, and thus authorized by law,\nthere would be no legal basis on which any resulting conflict of interest\ncould be successfully challenged. N or would there appear to be any\nissue o f constitutional dimension in such a conflict.\nYour second question relates to the suggested abolition of the BIB,\nand the direct appropriation of funds to the private corporation, R F E /\nR L .1 C ontrary to the advice you have received from counsel for R F E /\nRL, in our view there would be no legal or constitutional bar to\nchannelling federal funds for private expenditure in this manner, al\xc2\xad\nthough we have not found any precedent directly in point. There is no\nstatute which inhibits Congress\xe2\x80\x99 power, if it wishes to do so, to appro\xc2\xad\npriate directly to a private corporation for the purpose of accomplish\xc2\xad\ning governm ental objectives. And, assuming Congress took all neces\xc2\xad\nsary legislative steps to effectuate its desired end, we perceive no legal\nbasis on which to object to it.\nN or is there any principle of constitutional law which would neces\xc2\xad\nsarily be implicated by a direct legislative appropriation to a private\nentity.2 T o be sure, Congress generally includes some provision for\nsupervision by some executive agency of the use of federal funds in any\nappropriation intended fo r use in the private sector. And, one of the\nconsistent themes in discussions of the continued funding of R F E /R L\nover the years has been Congress\xe2\x80\x99 concern to ensure accountability in\nits use of public monies. But these concerns, and the controls imposed\npursuant to them, are grounded in political and administrative consider\xc2\xad\nations, not in any requirement imposed by the Constitution.\nThe teaching o f Buckley v. Valeo, 424 U.S. 1 (1976), does not suggest\nthe contrary. T he relevant holding in the Buckley case is that Congress\nmay not, consistent with the constitutional principle of separation of\npowers, seek to remove from the control o f the Executive Branch its\npow er to administer and enforce public law. A t issue in that case were\nrulemaking and enforcement functions which Congress had vested in\nthe Federal Elections Commission, a body whose members Congress\nitself appointed. The Court held that because these functions\n\xe2\x80\x98 You state that in this case som e or all o f the directors o f R F E /R L might be appointed by the\nPresident. O ur conclusions on the permissibility o f a direct appropriation to R F E /R L do not depend\non the status o f all or any of its directors as presidential appointees, and w e have therefore not taken\nthis possibility into account in our analysis.\n2 As a practical matter, Congress\xe2\x80\x99 appropriation would be framed as a directive to the Secretary of\nthe Treasury to cause certain funds to be paid to the private corporation. However, the Secretary of\nthe Treasury would have no discretion to determine whether the corporation were entitled to receive\nit. United States v. Price, 116U.S 43 (1885).\n\n52\n\n\x0c\xe2\x80\x9crepresent[ed] the performance of a significant governmental duty exer\xc2\xad\ncised pursuant to a public law,\xe2\x80\x9d 424 U.S. at 141, the Commission\xe2\x80\x99s\nmembers must be appointed by the President in the manner contem\xc2\xad\nplated in Article II, \xc2\xa72, clause 2 of the Constitution. Among the\nfunctions mentioned by the Court as requiring performance by a presi\xc2\xad\ndential appointee were the conduct of litigation, rulemaking and advi\xc2\xad\nsory opinions, and determinations of eligibility for federal funds and for\nfederal elective office. By contrast, among the Commission\xe2\x80\x99s powers\nwhich the Court noted might appropriately have been given legislative\nappointees were those \xe2\x80\x9crelating to the flow of necessary information\xe2\x80\x94\nreceipt, dissemination, and investigation . . . .\xe2\x80\x9d 424 U.S. at 137. Some\nexpenditure o f public funds is necessarily involved in these latter activi\xc2\xad\nties, and it is therefore plain that responsibility for expenditure of\nfederal funds in and o f itself is not within the class of \xe2\x80\x9csignificant\ngovernmental duties\xe2\x80\x9d which can be performed only by a presidential\nappointee.\nWe are aware of no authority given R F E /R L under the law which\nwould constitute \xe2\x80\x9cthe performance of a significant governmental duty\xe2\x80\x9d\nso as to require that it be retained within the Executive Branch. The\nCommission has no power to make rules or interpret laws as they apply\nto other persons or entities. It has no authority to conduct litigation in\nthe name of the government, nor otherwise to apply or enforce the\nlaw. Its only responsibilities under the law are of precisely the sort\nwhich the Court noted in Buckley could be delegated outside the\nExecutive Branch: functions relating to the flow of information. Even if\nthese functions were somehow regarded as having a \xe2\x80\x9cpublic\xe2\x80\x9d character\nin this context, this would not be sufficient to require their performance\nby an officer o f the United States.\nRelated to the separation of powers principle at issue in Buckley, and\nsusceptible to similar analytic treatment, is the delegation doctrine. This\ndoctrine, as relevant here, expresses the constitutional concern that\nsignificant executive or legislative power be exercised by an officer of\nthe United States appointed or elected, respectively, in accordance with\nthe Constitution. See Liebmann, Delegation to Private Parties in American\nConstitutional Law, 50 Indiana L.J. 650 (1975). As noted, we are un\xc2\xad\naware of any situation in which R F E /R L would be vested with the\nsort of executive or legislative authority which would trigger a concern\nfor excessive delegation to the private sector.\n\n53\n\n\x0cWe would be happy to be of further assistance to you as proposals\nfor restructuring the government\xe2\x80\x99s relationship with R F E /R L are de\xc2\xad\nveloped.*\nL e o n U lm a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\xa2 N o t e : In 1982, Congress enacted a law by which further federal grants to R F E /R L were made\nconditional upon amendment o f th e R F E /R L certificate o f incorporation to restrict membership on\nthe R F E /R L board to the presidentially appointed members of the Board for International Broadcast\xc2\xad\ning. Pub. L. N o . 97-241, \xc2\xa711, 96 Stat. 273, 296-97 (1982). Ed.\n\n54\n\n\x0c"


b'Procedural Rights of Undocumented Aliens Interdicted in U.S.\nInternal Waters\nUndocumented aliens seeking to reach the United States aboard a vessel that has reached the internal\nwaters o f the United States at the time o f interdiction, but who have not come ashore on United\nStates \xe2\x80\x9c dry land,\xe2\x80\x9d are not entitled to deportation proceedings or other proceedings under the Immi\xc2\xad\ngration and Nationality Act.\nApprehension of such aliens in the internal waters of the United States solely for the purpose of\ninterdicting or repulsing their attempt to enter the United States unlawfully does not constitute\nan \xe2\x80\x9c arrest\xe2\x80\x9d under section 287(a)(2) of the Immigration and Nationality Act and would not require\nthe institution of exclusion or other proceedings under the AcL\nIf such aliens are brought ashore on United States dry land, they would acquire the status of \xe2\x80\x9c appli\xc2\xad\ncants for admission\xe2\x80\x9d and would have to be inspected and screened pursuant to section 23S of\nthe Immigration and Nationality Act.\nN o v e m b e r 2 1 , 1996\nM e m o r a n d u m O p in io n\nI m m ig r a t i o n\n\nand\n\nfo r t h 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\nThis responds to your request for our opinion on several additional questions\nrelated to the interdiction of undocumented aliens in vessels before they have\ncome ashore in the United States.1 Your request was submitted before Congress\nenacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,\nPub. L. No. 104\xe2\x80\x94208, Division C, 110 Stat. 3009, 3009-546 (1996) (\xe2\x80\x9c Reform\nAct\xe2\x80\x9d ), which substantially amended the Immigration and Nationality Act, ch. 477,\n66 Stat. 163 (1952) (codified as amended at 8 U.S.C. \xc2\xa7\xc2\xa71101-1503) (\xe2\x80\x9c INA\xe2\x80\x9d ),\nand thereby altered the premises of your questions in significant respects. Taking\ninto account the changes effected by the Reform Act, our response to your inquires\nmay be summarized as follows:\n1. Undocumented aliens seeking to reach the United States aboard a transit ves\xc2\xad\nsel that has reached the internal waters of the United States at the time of interdic\xc2\xad\ntion, but who have not landed or been taken ashore on United States dry land,\nare not entitled to deportation proceedings (now encompassed within the new \xe2\x80\x9c re\xc2\xad\nmoval proceedings\xe2\x80\x9d established by section 304 of the Reform Act, INA \xc2\xa7240,\n110 Stat. 3009-589) or other proceedings under the INA.\n1\nMemorandum for Christopher Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, from\nDavid A. Martin, General Counsel, Immigration and Naturalization Service. Re: Rights o f Aliens Found In United\nStates Internal Waters (Aug. 12, 1996) ( \xe2\x80\x9c INS Memo\xe2\x80\x9d ). Your request refines broader questions previously addressed\nby this Office in opinions issued in J993 and 1994. See Immigration Consequences o f Undocumented Aliens\' Arrival\nin United States Territorial Waters, 17 Op. O.L.C. 77 (1993); Memorandum for T. Alexander Aleinikoff, General\nCounsel, Immigration and Naturalization Service, from W alter Dellinger, Assistant Attorney General, Office o f Legal\nCounsel, Re: Whether the Interdiction o f Undocumented Aliens Within United States Territorial Waters Constitutes\nan 4\xe2\x80\x98Arrest\xe2\x80\x99* under Section 287(a)(2) o f the Immigration and Nationality Act (Apr. 22, 1994) (\xe2\x80\x9c Arrest O pinion\xe2\x80\x9d ).\n\n381\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\n2. Apprehension of such aliens in the internal waters of the United States solely\nfor purposes of interdicting or repulsing their attempt to enter the United States\nunlawfully does not constitute an \xe2\x80\x9c arrest\xe2\x80\x9d under section 287(a)(2) of the INA\nand would not require the institution of exclusion proceedings (now also encom\xc2\xad\npassed by the new \xe2\x80\x9c removal proceedings\xe2\x80\x9d ) or other proceedings under the INA.\nIf such aliens are brought ashore on U.S. dry land, however, they would acquire\nthe status of \xe2\x80\x9c applicants for admission\xe2\x80\x9d and would have to be inspected and\nscreened pursuant to section 235 of the INA.\n3. Until the State Department\xe2\x80\x99s views on the matter are expressed, we defer\nto the State Department on the question whether United States treaty obligations\nwould require it to implement non-refoulement protections if an alien apprehended\nin internal waters demonstrates that his life or freedom would be threatened on\naccount of race, religion, nationality, membership in a particular political group,\nor political opinion if he is returned to his country. We would note, however,\nthat to the extent such a treaty-based obligation is in conflict with the newlyenacted provisions of the Reform Act, see, e.g., \xc2\xa7 302(a), INA \xc2\xa7 235(a)(1), 110\nStat. 3009-579 (\xe2\x80\x9c Aliens Treated as Applicants for Admission\xe2\x80\x9d ), the latter would\nprevail as the more recent enactment if Congress intended that result. See, e.g.,\nR eid v. C overt, 354 U.S. 1, 18 (1957); Fong Yue Ting v. United States, 149 U.S.\n698, 720(1893).\n4. Your inquiry regarding the effect of section 414 of the Antiterrorism and\nEffective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1270\n(\xe2\x80\x9c AEDPA\xe2\x80\x9d ) insofar as it enacted a new subsection 241(d) of the INA has been\nrendered moot due to the repeal of that subsection by section 308(d)(2)(D) of\nthe Reform Act.\nOur analysis of the first two questions follows.\nANALYSIS\nYour inquiry raises questions concerning undocumented aliens (i.e., those lack\xc2\xad\ning a visa or other authorization for lawful entry into the United States) interdicted\nin the \xe2\x80\x9c internal waters\xe2\x80\x9d of the United States, which you define by reference to\ncertain treaty and statutory definitions.2 The internal waters thus defined could\ninclude, for example, such locations as the straits between the Florida Keys, por\xc2\xad\ntions of the Chesapeake Bay, or even the upper reaches of the Potomac River.\nFor purposes of this analysis, we assume that the aliens in question are aboard\n2 The C onvention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, Part I, \xc2\xa711, art. 5(1), 15 U.S.T.\n1606, 1609, provides: \xe2\x80\x9c W aters on the landw ard side o f the baseline o f the territorial sea form part o f the internal\nwaters o f the S tate.\xe2\x80\x99* The related classification o f \xe2\x80\x9c Inland Waters** is defined for purposes of domestic law under\n33 U.S.C. \xc2\xa72003(o) as \xe2\x80\x9c the navigable w aters o f the United States shoreward of the navigational demarcation lines\ndividing the high seas from harbors, rivers, and other inland waters o f the United States and the waters o f the\nGreat Lakes on the U nited States side of the International Boundary.\xe2\x80\x9d\n\n382\n\n\x0cProcedural Rights o f Undocumented Aliens Interdicted in U.S. Internal Waters\n\na vessel in transit from another country to the United States but have not landed\nor disembarked on U.S. soil at the time of interdiction.\nI.\n\nYour initial question asks whether an undocumented alien interdicted in U.S.\ninland waters has effected an \xe2\x80\x9c entry\xe2\x80\x9d within the meaning of the INA and is thus\nentitled to deportation proceedings. In this regard, we note that the amendments\nto the INA enacted by the Reform Act have supplanted the significance of the\ntechnical term \xe2\x80\x9c entry\xe2\x80\x9d as a legal threshold for such procedural entitlements. See\nReform Act \xc2\xa7\xc2\xa7 301(a) and 308(f), INA \xc2\xa7 101(a)(13), 110 Stat. 3009-575, 3009621 (substituting the term \xe2\x80\x9c admission\xe2\x80\x9d for \xe2\x80\x9c entry\xe2\x80\x9d in various sections of the\nINA). Before enactment of the Reform Act, an alien\xe2\x80\x99s \xe2\x80\x9c entry\xe2\x80\x9d into the United\nStates was generally regarded as a prerequisite to his entitlement to deportation,\nas opposed to exclusion, proceedings. See Yang v. Maugans, 68 F.3d 1540, 1547\n(3d Cir. 1995).\nUnder the amended provisions of the INA, both deportation and exclusion pro\xc2\xad\nceedings have been supplanted by the single, streamlined \xe2\x80\x9c Removal Proceedings\xe2\x80\x9d\nnow governed by section 240 of the INA. That section provides:\nUnless otherwise specified in this Act, a proceeding under this\nsection shall be the sole and exclusive procedure for determining\nwhether an alien may be admitted to the United States or, if the\nalien has been so admitted, removed from the United States.\nReform Act \xc2\xa7 304(a)(3), INA \xc2\xa7 240(a)(3), 110 Stat. 3009-589. These removal pro\xc2\xad\nceedings are now called into play both with respect to those aliens who are \xe2\x80\x9c appli\xc2\xad\ncants for admission\xe2\x80\x9d who are not summarily removed under section\n235(b)(l)(A)(i) of the INA as well as to those aliens who are \xe2\x80\x9c in and admitted\nto the United States\xe2\x80\x9d and who fall within various sub-categories of deportability.\nINA \xc2\xa7 237(a)(1), 8 U.S.C. \xc2\xa7 1227(a)(1).\nRelatedly, the Reform Act has created the new category of \xe2\x80\x9c Aliens Treated\nas Applicants for Admission\xe2\x80\x9d under section 235 of the INA. Reform Act \xc2\xa7 302(a),\n110 Stat. 3009-579. An alien\xe2\x80\x99s classification within that category will now deter\xc2\xad\nmine whether he must receive inspection, screening, and other attendant proce\xc2\xad\ndures\xe2\x80\x94 including a removal proceeding under section 240 in the case of certain\napplicants for admission whom the inspection officer determines are \xe2\x80\x9c not clearly\nand beyond a doubt entitled to be admitted\xe2\x80\x9d \xe2\x80\x94 in contrast to aliens who may\nbe summarily repulsed or returned without any INA screening and procedural re\xc2\xad\nquirements. Thus, the question whether an alien\xe2\x80\x99s presence on the internal waters\nconstitutes an \xe2\x80\x9c entry\xe2\x80\x9d mandating \xe2\x80\x9c deportation\xe2\x80\x9d procedures no longer reflects the\ngoverning terminology and procedures. The relevant question now is whether such\n383\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nan alien qualifies as an \xe2\x80\x9c applicant for admission\xe2\x80\x9d under section 235(a)(1) of the\nINA, which provides as follows (emphasis added):\n(1) A liens Treated a s Applicants fo r Admission. \xe2\x80\x94 An alien\npresent in the United States who has not been admitted, or who\narrives in the United States (whether or not at a designated port\nof arrival and including an alien who is brought to the United States\nafter having been interdicted in international or United States wa\xc2\xad\nters) shall be deemed for purposes of this Act an applicant for ad\xc2\xad\nmission.\nThus, aliens who are \xe2\x80\x9c present in\xe2\x80\x9d or have \xe2\x80\x9c arrive[d] in\xe2\x80\x9d the United States\nare to be deemed \xe2\x80\x9c applicants for admission\xe2\x80\x9d and must be accorded the inspection,\nscreening, and attendant procedures that will result in either admission, asylum,\nor removal. That raises the question whether an alien interdicted on a vessel in\nthe internal waters of the United States, before he has disem barked on U.S. land,\nshall be deemed \xe2\x80\x9c present in the United States\xe2\x80\x9d or to have \xe2\x80\x9c arrived in the United\nStates.\xe2\x80\x9d We conclude that the wording of section 235 yields a negative answer\nto that question.\nThe underscored portion of section 235 contemplates the situation where an\nalien is \xe2\x80\x9c brought to the United States after having been interdicted in . . . United\nStates w a ters.\xe2\x80\x9d Id. (emphasis added). If an unlanded alien interdicted in United\nStates waters \xe2\x80\x94 which would include the inland waters \xe2\x80\x94 still must be \xe2\x80\x9c brought\nto\xe2\x80\x9d the United States, it plainly follows that Congress did not regard such an\nalien as already present or arrived in the United States.3 Rather, Congress pro\xc2\xad\nvided that the unlanded alien interdicted in United States waters must first be\n\xe2\x80\x9c brought to\xe2\x80\x9d the United States \xe2\x80\x94 i.e., taken ashore to U.S. dry land \xe2\x80\x94 before he\ncan be said to have \xe2\x80\x9c arrived\xe2\x80\x9d there and before he acquires the right to be treated\nas an applicant for admission.\nGiven our conclusion that unlanded aliens interdicted on internal waters do not\nconstitute \xe2\x80\x9c applicants for admission,\xe2\x80\x9d and therefore need not be inspected or\nscreened pursuant to section 235(b), it necessarily follows that such aliens are\nnot entitled to removal proceedings (i.e., the amended INA\xe2\x80\x99s substitute for depor\xc2\xad\ntation proceedings) under section 240. Only those interdicted aliens who qualify\nas applicants for admission must be referred to removal proceedings if the exam\xc2\xad\nining officer determines that they are not \xe2\x80\x9c clearly and beyond a doubt entitled\n3 This interpretation is consistent with the fact that the IN A \xe2\x80\x99s current definition o f \xe2\x80\x9c United States,\xe2\x80\x9d 8 U.S.C.\n\xc2\xa7 1101(a)(38), does not include waters o r airspace subject to the jurisdiction o f the United States. Moreover, as\nemphasized in one recent court o f appeals opinion: \xe2\x80\x9c Nor can it be said that the current definition implicitly includes\nterritorial w aters.\xe2\x80\x9d Yang v. Maugans, 68 F.3d at 1548. The court in Yang, noting that the defmition o f \xe2\x80\x9c United\nS tates" prior to the 1952 enactment of the INA did include \xe2\x80\x9c waters . . . subject to [U.S.] jurisdiction,\xe2\x80\x9d ascribed\nconsiderable significance to the absence o f \xe2\x80\x9c waters\xe2\x80\x9d from the current definition in concluding that the \xe2\x80\x9c physical\npresence\xe2\x80\x9d requirement o f the former \xe2\x80\x9c entry\xe2\x80\x9d test is satisfied \xe2\x80\x9c only when an alien reaches dry land.\xe2\x80\x9d Id. al 154849.\n\n384\n\n\x0cProcedural Rights o f Undocumented Aliens Interdicted in U.S. Internal Waters\n\nto be admitted.\xe2\x80\x9d Reform Act \xc2\xa7302(a), INA \xc2\xa7 235(b)(2)(A), 110 Stat. 3009-582.4\nThose aliens who do not land on U.S. soil, in contrast, do not constitute applicants\nfor admission and therefore need not be inspected or screened by an immigration\nofficer.\nOur conclusion on this issue is fortified by court decisions interpreting the anal\xc2\xad\nogous concept of \xe2\x80\x98\xe2\x80\x98physical presence in the United States\xe2\x80\x9d in deciding whether\naliens had effected an \xe2\x80\x9c entry\xe2\x80\x9d under the pre-Reform Act provisions of the INA.\nAs demonstrated in your memorandum, INS Memo at 3-4, those decisions hold\nthat an arriving alien\xe2\x80\x99s mere presence on U.S. waters does not establish the req\xc2\xad\nuisite physical presence in the United States unless and until the alien has \xe2\x80\x9c land\xc2\xad\ned\xe2\x80\x9d on U.S. soil. Yang v. Maugans, 68 F.3d at 1546-49; Zhang v. Slattery, 55\nF.3d 732, 754 (2d Cir. 1995) (\xe2\x80\x9c an alien attempting to enter the United States\nby sea has not satisfied the physical presence elem ent. . . until he has landed\xe2\x80\x9d ),\ncert, denied, 516 U.S. 1176 (1996); Chen Zhou Chai v. Carroll, 48 F.3d 1331,\n1343 (4th Cir. 1995) (Chen never entered the United States because he was appre\xc2\xad\nhended \xe2\x80\x9c before he reached the shore\xe2\x80\x9d ).\nIn declining to equate presence in U.S. waters with \xe2\x80\x9c presence in the United\nStates,\xe2\x80\x9d the wording of amended section 235 of the INA is consistent with these\nholdings. Accordingly, both the text of the amended INA and pertinent judicial\nprecedents confirm the view that an unlanded alien is not entitled to removal pro\xc2\xad\nceedings, or any other proceedings under the INA, merely because he is appre\xc2\xad\nhended in the internal waters of the United States. Only when such an alien has\nreached or been \xe2\x80\x9c brought to the United States [dry land]\xe2\x80\x9d does he attain the\nstatus of an \xe2\x80\x9c applicant for admission\xe2\x80\x9d and trigger the procedural requirements\nlinked to that status. Reform Act \xc2\xa7 302(a), INA \xc2\xa7 235(a)(1).\nII.\n\nThe second question is whether an unlanded alien\xe2\x80\x99s apprehension within the\ninternal waters constitutes an \xe2\x80\x9c arrest\xe2\x80\x9d for purposes of section 287(a)(2) of the\nINA, 8 U.S.C. \xc2\xa7 1357(a)(2), and would therefore require the institution of exclu\xc2\xad\nsion proceedings \xe2\x80\x94 i.e., what are now removal proceedings under amended section\n240. In particular, INS takes the view that such apprehension constitutes an arrest\n\xe2\x80\x9c at least when it involves the boarding of the vessel by United States officers,\nthe forced diversion of the vessel at the command of United States officers, or\n4\nWe note that section 235(a)(3) o f the amended INA provides: \xe2\x80\x9c All aliens (including alien crewmen) who are\napplicants for admission or otherwise seeking admission or readmission to or transit through the United States shall\nbe inspected by immigration officers.\xe2\x80\x9d (Emphasis added.) W e do not believe unlanded aliens interdicted on U.S.\ninternal waters constitute aliens \xe2\x80\x9c otherwise seeking adm ission" who must be inspected by immigration officers\nunder this section. Unless that term is limited to those persons who appear before immigration officers in the United\nStates (or at its border) seeking admission, it would extend overinclusively to persons who m ay be hundreds or\nthousands o f miles from the U nited States, but nonetheless \xe2\x80\x9c seek admission\xe2\x80\x9d to it. Requiring immigration officers\nto inspect all such persons would make no sense. Cf. Xiao v. Reno, 837 F. Supp. 1506, 1562 (N.D. Cal. 1993),\na ffd sub nom. Wang v. Reno , 81 F.3d 808 (9th Cir. 1996).\n\n385\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nthe physical custody of an individual (for example, after being pulled from the\nwater).\xe2\x80\x9d INS Memo at 4.\nAbsent any purpose to hold the alien in question for processing under the INA,\nprosecution, or for other legal proceedings, we do not view the apprehension of\nan unlanded alien under the circumstances you describe as an \xe2\x80\x9c arrest\xe2\x80\x9d and do\nnot conclude that it would require the institution of removal proceedings under\nthe INA.\nOur 1994 Arrest Opinion concluded that \xe2\x80\x9c INS interdictions of aliens within\nthe territorial waters do not involve taking aliens into custody and holding them\nf o r fu rth er legal proceedings, and are thus not \xe2\x80\x98arrests\xe2\x80\x99 as that term is naturally\nunderstood.\xe2\x80\x9d Arrest Opinion at 3 (emphasis added). The mere fact that such an\ninterdiction of unlanded aliens takes place in the internal waters of the United\nStates\xe2\x80\x94 e.g., on the straits of the Florida Keys\xe2\x80\x94 does not alter or undermine\nour conclusion on that point. Because such an alien has not landed in the United\nStates, he is not \xe2\x80\x9c present,\xe2\x80\x9d nor has he \xe2\x80\x9c arrived,\xe2\x80\x9d in the United States within\nthe meaning of section 235 of the INA. We therefore do not consider his pre\xc2\xad\nlanding, non-prosecutorial apprehension an \xe2\x80\x9c arrest\xe2\x80\x9d any more than if the appre\xc2\xad\nhension occurred on non-internal territorial waters of the United States. Only if\nthe interdicted alien is taken into custody and held fo r the purpose o f further\nimmigration proceedin gs or prosecution \xe2\x80\x94 as opposed to being held until the ves\xc2\xad\nsel is escorted or diverted out of United States waters\xe2\x80\x94 would an \xe2\x80\x9c arrest\xe2\x80\x9d re\xc2\xad\nsult. 5\nYour memorandum specifically contends that the apprehension of unlanded\naliens in internal waters must be viewed as an arrest under the provisions of sec\xc2\xad\ntion 287(a)(2) of the INA (INS Memo at 4). In this regard, our prior opinion\nstressed that section 287(a)(2) of the INA \xe2\x80\x9c is not designed to guarantee procedural\nrights to illegal aliens whom the INS turns back from this country before they\nhave a rrived .\xe2\x80\x9d Arrest Opinion at 8 (emphasis added). As discussed above, an\nunlanded interdicted alien has not \xe2\x80\x9c arrived\xe2\x80\x9d in the United States unless and until\nhe disembarks on U.S. dry land. When such an unlanded alien is apprehended\nand temporarily detained solely in order to \xe2\x80\x9c turn back\xe2\x80\x9d his attempted entry, rather\nthan for the purpose of subjecting him to the procedures or sanctions of U.S.\nimmigration laws, the particular concerns of section 287(a)(2)\xe2\x80\x99s provisions are\nsimply not implicated.\nRICHARD L. SMFFRIN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n5\nO f course, if the alien were taken ashore for some reason\xe2\x80\x94 i.e., if he were \xe2\x80\x9c brought to the United States"\nw ithin the meaning o f section 235(a)(1)\xe2\x80\x94 he would be deem ed an \xe2\x80\x9c applicant for admission*\xe2\x80\x99 and would have to\nbe inspected and screened pursuant to section 235(b), which in some cases m ay lead in turn to asylum or removal\nproceedings.\n\n386\n\n\x0c'