b'Constitutionality of Legislation Limiting the Remedial Powers\nof the Inferior Federal Courts in School Desegregation\nLitigation\nProposed legislative restriction on the power of the inferior federal courts to order busing rem edies in\nschool desegregation litigation cannot be justified as an exercise of congressional power to enforce\nthe Fourteenth A m endm ent, if such a restriction would prevent a court from fully rem edying a\nconstitutional violation.\nProposed legislation can be justified as an exercise of congressional power under A rticle III, \xc2\xa7 I of the\nConstitution, which gives Congress very broad power to control the jurisdiction o f the inferior\nfederal courts. T he bill does not usurp the judicial function by depriving the lower courts of power\nto hear desegregation cases and to im pose rem edies w hich do not involve busing, nor does it\ninstruct the lower courts how to decide issues of fact in pending cases, or require reversal of any\noutstanding court order.\nThe b ill\xe2\x80\x99s provision prohibiting the Departm ent of Justice from using appropriated funds to bring or\nm aintain an action to require busing is constitutional despite the lim itations that it would im pose on\nthe Executive\xe2\x80\x99s discretion, since it does not preclude the Departm ent from fulfilling its statutory\nobligation to enforce the law through seeking other effective rem edies or objecting to inadequate\ndesegregation plans.\nBoth the lim itation on courts and on the D epartm ent of Justice should be upheld if challenged under\nthe equal protection com ponent of the Fifth A m endm ent\'s Due Process Clause, since neither\nlim itation creates a racial classification nor evidences a discrim inatory purpose\n\nMay 6, 1982\nT\n\nhe\n\nC\n\nh a ir m a n o f t h e\n\nCom\n\nm it t e e o n t h e\n\nU n it e d S t a t e s H o u s e\n\nof\n\nR\n\nJ u d ic ia r y\n\ne p r e s e n t a t iv e s\n\nD e a r M r . C h a i r m a n : This responds to your request concerning those portions\nof S. 951, the Senate-passed version o f the D epartment of Justice appropriation\nauthorization bill for fiscal year 1982, which relate to the mandatory transporta\xc2\xad\ntion of school children to schools other than those closest to their homes\n(\xe2\x80\x9cbusing\xe2\x80\x9d).* One of these provisions relates to the remedial powers of the inferior\ncourts and the other to the authority of the Departm ent of Justice. This letter\ndiscusses the effect of these provisions as well as the policy and constitutional\nimplications of the provisions as construed. The funding provisions of S. 951\nwill be addressed in a separate letter by the Assistant Attorney General of the\nOffice of Legislative Affairs.\n\n\xe2\x99\xa6 N o t e - The relevant portions o f S 951, 97th C ong , 2d S ess., are reprinted at 128 Cong R ec S ) 3 3 6 (daily ed.\nM ar 2 , 1982) Ed\n\ni\n\n\x0cIt is im portant to note at the outset that S. 951 does not withdraw jurisdiction\nfrom the Suprem e C ourt or limit the jurisdiction of the federal courts to decide a\nclass o f cases. T he provisions o f the bill and its legislative history make clear that\nthe effect of these provisions relate only to one aspect of the remedial power of the\ninferior federal courts\xe2\x80\x94 not unlike the N orris-L aG uardia Act, enacted in 1932.\nN or do the provisions limit the pow er of state courts or school officials to reassign\nstudents or require transportation to remedy unconstitutional segregation. Care\xc2\xad\nful exam ination o f these provisions indicates that they are constitutional.\nI. B using Provisions of S. 951\nThe first provision, \xc2\xa7 2 of the bill, entitled the Neighborhood School Act of\n1982, recites five congressional findings to the effect that busing is an inade\xc2\xad\nquate, expensive, energy-inefficient, and undesirable remedy. It then states\n(\xc2\xa7 2(d)) that, pursuant to Congress\xe2\x80\x99 power under Article III, \xc2\xa7 1 and \xc2\xa7 5 of the\nFourteenth A m endm ent, \xe2\x80\x9cno co u rt of the United States may order or issue any\nwrit directly or indirectly ordering any student to be assigned or to be transported\nto a public school other than that which is closest to the student\xe2\x80\x99s residence\nunless\xe2\x80\x9d such assignm ent or transportation is voluntary or \xe2\x80\x9creasonable.\xe2\x80\x9d The bill\ndeclares that such assignment o r transportation is not reasonable if\n(i) there are reasonable alternatives available which involve less\ntim e in travel, distance, danger, or inconvenience;\n(ii) such assignm ent or transportation requires a student to cross a\nschool district having the sam e grade level as that of the student;\n(iii) such transportation plan or order or part thereof is likely to\nresult in a greater degree o f racial im balance in the public school\nsystem than was in existence on the date of the order for such\nassignm ent o r transportation plan or is likely to have a net harmful\neffect on the quality of education in the public school district;\n(iv) the total actual daily tim e consumed in travel by schoolbus for\nany student exceeds thirty m inutes unless such transportation is to\nand from a public school closest to the student\xe2\x80\x99s residence with a\ngrade level identical to that of the student; or\n(v) the total actual round trip distance traveled by schoolbus for\nany student exceeds 10 m iles unless the actual round trip distance\ntraveled by schoolbus is to and from the public school closest to\nthe student\xe2\x80\x99s residence w ith a grade level identical to that of the\nstudent.\nSection 2(f) o f the bill adds a new subparagraph to \xc2\xa7 407(a) of Title IV o f the\nCivil R ights A ct o f 1964 , 42 U .S .C . \xc2\xa7 2000c-6(a), authorizing suits by the\nAttorney G eneral to enforce rights guaranteed by the bill if he determines that a\nstudent has been required to attend o r be transported to a school in violation of the\n2\n\n\x0cbill and is otherwise unable to maintain appropriate legal proceedings to obtain\nrelief. The bill is made \xe2\x80\x9cretroactive\xe2\x80\x9d in that its terms would apply to busing\nordered by federal courts even if such order were entered prior to its effective\ndate. Section 16 of the bill supplements these provisions by providing that\n\xe2\x80\x9c[n]otwithstanding any provision of this Act, the Department of Justice shall not\nbe prevented from participating in any proceedings to remove or reduce the\nrequirement of busing in existing court decrees or judgm ents.\xe2\x80\x9d\nThe second provision, \xc2\xa7 3( 1)(D), limits the power of the Department of Justice\nto bring actions in which the Department would advocate busing as a remedy:\nN o part of any sum authorized to be appropriated by this Act\nshall be used by the Department of Justice to bring or maintain\nany sort of action to require directly or indirectly the transporta\xc2\xad\ntion of any student to a school other than the school which is\nnearest to the student\xe2\x80\x99s hom e, except for a student requiring\nspecial education as a result o f being mentally or physically\nhandicapped.\n\nII. General Comments\nThere appear to be am biguities in the Neighborhood School A ct\xe2\x80\x99s provisions\nfor suits to be brought by the Attorney General challenging existing decrees. For\nexample, it is unclear what, if any, obligations are placed on the Attorney General\nwith regard to court decrees that offend \xc2\xa7 2. Since the bill does not purport to\nprevent any governmental entities other than federal courts from requiring the\ntransportation of students, the Attorney G eneral\xe2\x80\x99s review of a com plaint must\ninclude the inquiry whether the transportation is the result of federal court action.\nIt is difficult to determ ine the party against whom the action is to be brought. The\nassignment violates the Neighborhood School Act only if it is required by court\norder. Does the Attorney General sue the court? If so, then what relief is\nappropriate? Does the bill permit an action against a school board even though its\nactions are not the subject of the bill\xe2\x80\x99s prohibition? If a school board is the\ndefendant, then what relief is appropriate? Does the Attorney General ask that the\nschool board be enjoined from complying with the court order? Does he ask for a\ndeclaratory judgm ent of the board\xe2\x80\x99s obligations under the order? If the latter is the\ncase and the board wishes to continue its present assignment patterns, what will\nhave been accomplished by the lawsuit? These questions illustrate the problems\nincident to the provisions that allow for collateral attack on existing decrees.\nSerious concern arises also because of the limitation on the Attorney G eneral\xe2\x80\x99s\ndiscretion contained in \xc2\xa7 3(1 )(D). This Administration has repeatedly stated its\nobjection to the use of busing to remedy unlawful segregation in public schools.\nSee Testimony of W m . Bradford Reynolds, Assistant Attorney G eneral, Civil\nRights D ivision, Before the Subcomm. on Separation of Powers of the Senate\nComm, on the Judiciary, Desegregation o f Public Schools (Oct. 16, 1981). The\nexpress limitation on the D epartm ent\xe2\x80\x99s authority is unnecessary and may inhibit\n3\n\n\x0cthe ability to present and advocate remedies which may be less intrusive and\nburdensom e than those being urged on a court by other litigants. Moreover,\nbecause the limitation is imposed only in the D epartm ent\xe2\x80\x99s one-year authoriza\xc2\xad\ntion, there is no force to the argum ent that a statutory provision is necessary to\nensure that successive Administrations will also carry out congressional intent.\nFinally, to the extent that Congress does intend to effect a long-term substantive\nchange in the law, the proper vehicle would seem to be permanent substantive\nlegislation, not an authorization bill which m ust be reviewed annually by Con\xc2\xad\ngress and which becom es more difficult to enact and thus less efficient for its\nnecessary purposes when it is encum bered by extraneous matters.\n\nIII. Constitutionality\nA . Textual Interpretation of the N eighborhood School Act o f 1982\nThe N eighborhood School Act restricts the power of inferior federal courts to\nissue rem edial busing decrees w here the transportation requirement would ex\xc2\xad\nceed specified limits of reasonableness. That it does not purport to limit the power\nof state courts or school boards is amply demonstrated by its text and by\nstatem ents of its supporters. Senator Hatch, in a colloquy with Senator Johnston,\nstated that \xe2\x80\x9cthis bill does not, however, restrict in any way the authority of State\ncourts to enforce the Constitution as they wish . . . .\xe2\x80\x9d 127 Cong. Rec. S6648\n(daily ed. June 22, 1981). On the day that the bill passed the Senate, Senator\nJohnston echoed these remarks:\nIf a school board wants to bus children all over its parish or all\nover its county, it is not prohibited from doing so by this amend\xc2\xad\nm ent. N or indeed would a State court if it undertook to order that\nbusing. The legislation deals only with the power of the Federal\ncourts . . . .\n128 C ong. Rec. S1324 (daily ed. March 2, 1982).\nThe im pact o f the Neighborhood School Act on the federal courts is also\nlim ited. It w ithdraw s, in specified circum stances, a single remedy from the\ninferior federal courts. The substantial weight of the text and legislative history\nsupports the proposition that the bill limits the remedial power only of the inferior\nfederal courts, not the Supreme "Court. There is strong textual support for this\nconclusion, because the bill recites that it is enacted pursuant to congressional\npower under A rticle III, \xc2\xa7 1. Section 1 of Article III provides authority for\nlim iting the jurisdiction and the powers of the inferior federal courts, not the\nSuprem e Court. The source of congressional authority relative to the jurisdiction\nof the Suprem e C ourt is the Exceptions Clause, Art. Ill, \xc2\xa7 2, cl. 2. The\nconspicuous and apparently intentional omission of that clause as a source of\ncongressional authority to enact this measure strongly indicates that no restriction\nof the Suprem e C ourt appellate jurisdiction was intended.\n4\n\n\x0cMoreover, there do not appear to be any direct statements in the legislative\nhistory to the effect that any restriction on the Supreme C ourt\xe2\x80\x99s jurisdiction was\nintended. To the contrary, there is an explicit colloquy between Senators Hatch\nand Johnston indicating that no restriction on Supreme Court jurisdiction was\nintended. In response to a question posed by Senator M athias to Senator\nJohnston, Senator Hatch stated:\nThere is little controversy, in my opinion . . . that the constitu\xc2\xad\ntional power to establish and dismantle inferior Federal courts has\ngiven Congress complete authority over their jurisdiction. This\nhas been repeatedly recognized by the Supreme Court . . . .\nThis amendment would be only a slight modification of lower\nFederal court jurisdiction. These inferior Federal courts would\nno longer have the authority to use one remedy among many for a\nfinding of a constitutional violation.\nI would hasten to add that this bill does not, however; restrict in\nany way . . . the power c f the Supreme Court to review State court\np r o c e e d in g s a n d in su re f u l l e n fo rc e m e n t o f co n stitu tio n a l\nguarantees.\nIn short, this is a very, very narrow amendment. It only\nwithdraws a single remedy which Congress finds inappropriate\nfro m the lower Federal courts.\n:f:\n\n^\n\nM R. JOHNSTON. Mr. President, I thank the distinguished\nSenator from Utah for his exegesis on the legality, the power of\nCongress under article III to restrict jurisdiction.\n127 Cong. Rec. S6648-49 (daily ed. June 22, 1981) (emphasis added).\nB. Legal Status o f Transportation Remedies\nIn Brown v. Board o f Education, 349 U .S. 294, 300 (1955) (II), the Supreme\nCourt held that federal courts must be guided by equitable principles in the design\nof judicial remedies for unlawful racial segregation in public school systems.\nUnder those principles, as the Court has more recently explained, \xe2\x80\x9cthe rem edy is\nnecessarily designed, as all remedies are, to restore the victims of discriminatory\nconduct to the position they would have occupied in the absence of such\nconduct.\xe2\x80\x9d M illiken v. Bradley (Bradley 1), 418 U .S. 717, 746 (1974) (I). The\nCourt has indicated that the principle that justifies judicial discretion to impose\ntransportation remedies also implies a limitation on that discretion.\nThe judicial power to impose such remedies \xe2\x80\x9cmay be exercised only on the\nbasis of a constitutional violation,\xe2\x80\x9d Swann v. Charlotte-M ecklenburg, 402 U.S.\n1, 16 (1971), and \xe2\x80\x9ca federal court is required to tailor \xe2\x80\x98the scope of the rem edy\xe2\x80\x99 \xe2\x80\x9d\n5\n\n\x0cwhich included the transportation of students to schools other than the ones\nwhich they had form erly attended, \xe2\x80\x9cto fit \xe2\x80\x98the nature and the extent of the\nconstitutional vio latio n ,\xe2\x80\x99 \xe2\x80\x9d Dayton v. Brinkm an, 433 U .S. 406, 420 (1977),\nquoting Bradley I, at 744. In other words, reassignment of students and con\xc2\xad\ncom itant transportation of students to different schools is appropriate only when\nit is \xe2\x80\x9c indeed . . . remedial, \xe2\x80\x9d M illiken v. Bradley (Bradley II), 433 U .S. 2 6 7 ,2 8 0\n(1977) (em phasis in original), that is, when it is aimed at making available to the\nvictim s of unlawful segregation a school system that is free of the taint of such\nsegregation.\nThe Suprem e C ourt has stated that circum stances might conceivably exist in\nw hich the im position of a desegregation remedy which included the transporta\xc2\xad\ntion of students to schools other than the ones which they had formerly attended\nwould be unavoidable in order to vindicate constitutional rights. If school\nauthorities have segregated public school students by race, they shoulder a\nconstitutional obligation \xe2\x80\x9c to elim inate from the public schools all vestiges of\nstate-im posed segregation,\xe2\x80\x9d Swann, 402 U .S. at 15. The Court has said that if\nthis duty cannot be fulfilled without the mandatory reassignment of students to\ndifferent schools, with the concom itant requirement of student transportation,\nthis rem edy cannot be statutorily elim inated. In North Carolina v. Swann, 402\nU .S . 43 (1971), the Court overturned a North C arolina statute that proscribed the\nassignm ent o f students to any school on the basis of race, \xe2\x80\x9c or for the purpose of\ncreating a racial balance or ratio in the schools,\xe2\x80\x9d and prohibited \xe2\x80\x9c involuntary\xe2\x80\x9d\nbusing in violation of the statutory proscription. The Chief Justice, writing for a\nunanim ous C ourt, concluded:\n[I]f a state-im posed limitation on a school authority\xe2\x80\x99s discretion\noperates to inhibit or obstruct the operation of a unitary school\nsystem or im pede the disestablishing o f a dual school system, it\nm ust fall; state policy m ust give way when it operates to hinder\nvindication o f federal constitutional guarantees.\n*\n\n*\n\n*\n\n*\n\nsf:\n\nWe likewise conclude that an absolute prohibition against\ntransportation of students assigned on the basis of race, \xe2\x80\x9cor for the\npurpose of creating a balance or ratio,\xe2\x80\x9d will similarly hamper the\nability o f local authorities to effectively remedy constitutional\nviolations. As noted in Swann, supra, at 29, bus transportation\nhas long been an integral part of all public educational systems,\nand it is unlikely that a truly effective remedy could be devised\nw ithout continued reliance upon it.\n402 U .S . at 45\xe2\x80\x9446.\nA lthough the C ourt has indicated that some student transportation might be a\nnecessary incident to a desegregation decree, it has never stated with particularity\nwhat those cases might be, nor has it identified the limitations on busing orders in\ncases where transportation is constitutionally required. In Swann v. CharlotteM e c k le n b u rg , su p ra , fo r exam ple, the C o u rt declined to provide \xe2\x80\x9c rigid\n6\n\n\x0cguidelines\xe2\x80\x9d governing the appropriateness of busing remedies. It stated only that\nbusing was to be limited by factors of time and distance which would \xe2\x80\x9c either risk\nthe health of the children or significantly impinge on the educational process.\xe2\x80\x9d\n402 U.S. at 30-31. Limits on tim e and distance would vary with many factors,\n\xe2\x80\x9c but probably with none more than the age of the students.\xe2\x80\x9d Id. at 31.\nC. Congressional Power Under \xc2\xa7 5 o f the Fourteenth Amendment\nIn light of the Suprem e C ourt\xe2\x80\x99s conclusion that student transportation m ight in\nsome circumstances be a necessary feature of a remedial desegregation decree, it\nis necessary to consider whether the limitation on the power of the inferior federal\ncourts under the Neighborhood School Act would be justified as an exercise of\ncongressional authority under \xc2\xa7 5 of the Fourteenth Amendment. Section D,\ninfra, focuses on Congress\xe2\x80\x99 power under Article III, \xc2\xa7 1, which is broader in this\ncontext than \xc2\xa7 5.\nSection 5 provides that Congress \xe2\x80\x9c shall have power to enforce, by appropriate\nlegislation, the provisions of\xe2\x80\x9d the Fourteenth Amendment, including the Equal\nProtection Clause, which has been held to guarantee all students a right to be free\nof intentional racial discrim ination or segregation in schooling. Brown v. Board\nc f Education, 347 U .S. 483(1954). The question is whether congressional power\nto enforce that right by appropriate legislation includes authority to limit the\npower of the lower federal courts to award transportation remedies generally and\nspecifically in those cases in which some transportation is necessary fully to\nvindicate constitutional rights.\nThe cases o f K atzenbach v. M organ, 384 U .S . 641 (1966); O regon v.\nMitchell, 400 U.S. 112 (1970); City c f Rome v. United States, 446 U .S. 156\n(1980); and Fullilove v. Klutznick, 448 U.S. 448 (1980) (plurality opinion),\nfirmly establish that the \xc2\xa7 5 power is a broad one. Congress may enact statutes to\nprevent or to rem edy situations which, on the basis of legislative facts, Congress\ndetermines to be violative of the Constitution. At the same time, these cases\nrather firmly establish that Congress is without power under \xc2\xa7 5 to revise the\nC ourt\xe2\x80\x99s constitutional judgm ents if the effect of such revision is to \xe2\x80\x9c restrict,\nabrogate, or dilute\xe2\x80\x9d Fourteenth Amendment guarantees as recognized by the\nSupreme Court.\nThe limitation on busing rem edies contained in the Neighborhood School Act\nwould be authorized under \xc2\xa7 5 o f the Fourteenth A mendment to the extent that it\ndoes not prevent the inferior federal courts from adequately vindicating constitu\xc2\xad\ntional rights. The grant of power under \xc2\xa7 5 to \xe2\x80\x9c enforce\xe2\x80\x9d the Fourteenth Am end\xc2\xad\nment carries with it subordinate authority to determine specific methods by\nwhich that am endm ent is to be enforced. As an incident of its enforcement\nauthority, therefore, Congress may instruct the lower federal courts not to order\nmandatory busing in excess of the \xc2\xa7 2(d) limits, so long as the court retains\nadequate legal or equitable powers to remedy whatever constitutional violation\nmay be found to exist in a given case.\nMoreover, federal and state courts would probably pay considerable deference\nto the congressional factfinding upon which the bill is ultimately based in\n7\n\n\x0cdeterm ining the scope of constitutional requirements in this area. The Court has\nstated that, so long as it can \xe2\x80\x9c perceive a basis\xe2\x80\x9d for the congressional findings,\nK atzenbach v. M organ, 384 U .S . at 653, it will uphold a legislative determina\xc2\xad\ntion that a situation exists which either directly violates the Constitution or\nw hich, unless corrected, will lead to a constitutional violation. Similar deference\nwould be appropriate for findings under this bill, notwithstanding the somewhat\nlim ited hearings which were held and the absence of printed reports. It does not\nappear that any particularized research was presented to the Senate which might\nhave supported or undermined the specific limitations on federal court decrees\ncontained in \xc2\xa7 2(d) o f S. 951. It is likely, however, that the time and distance\nlim itations contained in \xc2\xa7 2(d) o f the bill would serve as legitimate benchmarks\nfor federal and state courts in the future in devising appropriate decrees. To this\nextent, the exercise of congressional power under \xc2\xa7 5 would be fully proper and\neffective.\nN or does it appear that the Neighborhood School Act would be interpreted to\n\xe2\x80\x9c d ilu te\xe2\x80\x9d Fourteenth Amendment rights merely because it denies a certain form\nof relief in the inferior federal courts or includes certain retroactivity provisions\nin \xc2\xa7\xc2\xa7 2 (0 and (g). Congress cannot, under \xc2\xa7 5, prohibit a federal district court\nfrom granting a litigant all the relief that the Fourteenth Amendment requires.\nM oreover, the state courts would remain open to persons claiming unconstitu\xc2\xad\ntional segregation in education after this bill becomes law, and would be em \xc2\xad\npowered\xe2\x80\x94 indeed, required\xe2\x80\x94to provide constitutionally adequate relief.\nU nder \xc2\xa7 5 C ongress cannot im pose mandatory restrictions on federal courts in\na given case where the restriction would prevent them from fully remedying the\nconstitutional violation. Congressional power to enforce the Fourteenth Amend\xc2\xad\nm ent is not a pow er to determine the limits of constitutional rights. Although it\nincludes the power to limit the equitable discretion of the lower federal courts to\nim pose rem edial measures which are not necessary to correct the constitutional\nviolation, the courts must retain remedial authority sufficient to correct the\nviolation. And although Congress can express its view through factfinding, but\nsubject to the limitations set forth in \xc2\xa7 2(d) of the bill, that busing is an ineffective\nrem edial tool and that extensive busing is not necessary to remedy a constitu\xc2\xad\ntional violation, it is ultimately the responsibility of the courts to determine, after\ngiving due consideration to the congressional findings contained in this bill,\nw hether in a given case an effective remedy requires the use of mandatory busing\nin excess of the limitations set forth in \xc2\xa7 2(d) o f the bill.\nIn sum , C ongress, pursuant to \xc2\xa7 5, can: (1) limit the authority of federal\ndistrict courts to require student transportation where it is not required by the\nC onstitution; and (2) adopt guidelines, based on legislative factfinding, as to\nw hen busing is effective to rem edy the violation, which guidelines will tend to\nreceive substantial deference from the courts. Section 5 does not, however,\nauthorize C ongress to preclude the inferior federal courts from ordering man\xc2\xad\ndatory busing w hen, in the judgm ent of the courts, such busing is necessary to\nrem edy a constitutional violation. This authority must be found, if at all, in the\n8\n\n\x0cpower of Congress under Article 111, \xc2\xa7 1 to restrict the jurisdiction of the lower\nfederal courts.\nD. Congressional Power Under Article III, \xc2\xa7 I\nCongress\xe2\x80\x99 authority to limit the equitable powers of the inferior federal courts\nhas been repeatedly recognized by the Supreme Court. Article 111, \xc2\xa7 1 of the\nConstitution provides that \xe2\x80\x9c [t]he judicial Power of the United States, shall be\nvested in one suprem e Court, and in such inferior Courts as the Congress may\nfrom time to tim e ordain and establish.\xe2\x80\x9d See also U .S. Const. Art. 1, \xc2\xa7 8, cl. 9\n(giving Congress power to \xe2\x80\x9c constitute Tribunals inferior to the supreme C ourt\xe2\x80\x9d ).\nIt seems a necessary inference from the express decision of the Framers that the\ncreation of inferior courts was to rest in the discretion of Congress that, once\ncreated, the scope of the court\xe2\x80\x99s jurisdiction was also discretionary. The view\nthat, generally speaking, Congress has very broad control over the inferior\nfederal court jurisdiction was accepted by the Supreme Court in Cary v. Curtis,\n44 U.S. (3 How.) 236 (1845), and Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850).\nThat view rem ains firmly established today.\nCongress\xe2\x80\x99 power over jurisdiction has been further recognized, most notably\nin cases under the N orris-LaG uardia Act, to include substantial power to limit\nthe remedies available in the inferior federal courts. In L a u f\\. E .G . Shinner &\nC o., 303 U.S. 323, 330 (1938), the C ourt upheld provisions of the N orrisLaGuardia Act which imposed restrictions on federal court jurisdiction to issue\nrestraining orders or injunctions in cases growing out of labor disputes. In two\ncases under the Emergency Price Control Act of 1942, the Supreme Court\nrecognized the power of Congress to withdraw certain cases from the jurisdiction\nof the inferior federal courts and to prohibit any court from issuing temporary\nstays or injunctions. See Lockerty v. Phillips, 319 U .S. 182 (1943); Yakus v.\nUnited States, 321 U .S. 414 (1944).\nThe provisions of the Neighborhood School Act appear to be firmly grounded\nin Congress\xe2\x80\x99 Article III, \xc2\xa7 1 power, as interpreted in Lauf, Lockerty, and Yakus, to\ncontrol the inferior federal court jurisdiction. The bill does not represent an\nattempt by Congress to use its power to limit jurisdiction as a disguise for\nusurping the exercise of judicial power. The bill does not instruct the inferior\nfederal courts how to decide issues o f fact in pending cases. See United States v.\nKlein, 80 U .S. (13 Wall.) 128 (1872).\nN or does the bill usurp the judicial function by depriving the inferior federal\ncourts of their power to issue any remedy at all. The bill does not withdraw the\nauthority of inferior federal courts to hear desegregation cases or to issue busing\ndecrees, so long as they comport with the limitations in \xc2\xa7 2(d) of S. 951. This\nlimited effect on the court\xe2\x80\x99s remedial power does not convert the judicial power\xe2\x80\x94\nto hear and decide particular cases and to grant relief\xe2\x80\x94 into the essentially\nlegislative function of deciding cases without any power to issue relief affecting\nindividual legal rights or obligations in specific cases. Whatever implicit lim ita\xc2\xad\n9\n\n\x0ctions on Congress\xe2\x80\x99 power to control jurisdiction might be contained in the\nprinciple of separation of powers, they are not exceeded by this bill, which does\nnot withdraw all effective remedial power from the inferior federal courts.\nN either the text of the bill nor the legislative history appears to support the\nconclusion that the bill requires an automatic reversal of any outstanding court\norder that im posed a busing rem edy beyond the limits specified in the bill. Such\nan attem pt to exert direct control over a court order would raise constitutional\nproblem s associated with legislative revision of judgm ents. E .g., Hayburn\'s\nCase, 2 U .S. (2 D ali.) 409 (1792) (on petition for mandamus). The \xe2\x80\x9cretroactive\xe2\x80\x9d\neffect is felt instead through a change in the substantive law, in this case the law of\nrem edies, to be applied by courts in determ ining whether to impose or to revise a\nbusing remedy, coupled with the grant of authority to the Attorney General to\nseek relief on behalf o f a student transported in violation of the Act. Upon the\nAttorney G eneral\xe2\x80\x99s application, the court would itself determine whether the\nbusing rem edy was consistent w ith the Act. T he bill, therefore, does no more\nthan require the court to apply the law as it would then exist at the time of its\ndecision in a \xe2\x80\x9c pending\xe2\x80\x9d case. S ee The Schooner Peggy, 5 U .S. (1 Cranch) 103\n(1801).\nThe busing rem edy is \xe2\x80\x9c pending\xe2\x80\x9d and not final to the extent that the court has\nretained jurisdiction over the case or the order is otherwise subject to modifica\xc2\xad\ntion by the court in the exercise of its equity jurisdiction. See United States v.\nS w ift & C o., 2 8 6 U .S . 106, 114\xe2\x80\x9415(1932). Prior to or in the absence of relief by\nthe court from a previously imposed busing order, the parties before the court\nwould be required to continue to perform pursuant to the court\xe2\x80\x99s order. Cf.\nPennsylvania v. W heeling & Belm ont Bridge C o ., 5 9 U .S .(1 8 How.) 421 (1856).\nE. C onstitutionality c f \xc2\xa7 3(1 )(D)\nSection 3(1 )(D) o f the bill prohibits the Department of Justice from using any\nappropriated funds to bring or maintain any action to require, directly or\nindirectly, virtually any busing o f school children. The D epartm ent\xe2\x80\x99s authority to\ninstitute litigation under Title IV of the Civil Rights Act of 1964, 42 U .S .C .\n\xc2\xa7 2000c-6, against segregated school systems would not be diminished. Nor\nwould the federal courts, under this section, be limited in their power to remedy\nconstitutional violations. The effect of \xc2\xa7 3(1)(D) is only to prohibit the Depart\xc2\xad\nm ent in the litigation in which it is involved from seeking, directly or indirectly, a\nbusing remedy. If the language and legislative history of the bill, as finally\nenacted, support this interpretation, it would appear that \xc2\xa7 3(1)(D) would be\nupheld despite the limitations that it would im pose on the discretion currently\npossessed by the Executive Branch.\nT he lim itation would restrict the litigating authority presently conferred upon\nthe D epartm ent by Title IV to seek all necessary relief to vindicate the constitu\xc2\xad\ntional rights at stake. At least in cases that do not involve the use of federal funds\nby segregated school systems, the Executive\xe2\x80\x99s authority may be restricted to this\nlim ited extent. Because the restriction does not entirely preclude enforcement\n10\n\n\x0cactions by the United States, \xc2\xa7 3 (l)(D ) does not impermissibly limit the E x\xc2\xad\necutive\xe2\x80\x99s \xe2\x80\x9c inherent\xe2\x80\x9d authority to remedy constitutional violations, to the extent\nrecognized in United States v. City c f Philadelphia, 644 F.2d 187 (3d Cir. 1980),\nor N ew York Tim es Co. v. U nited States, 403 U .S. 713, 741\xe2\x80\x9447 (1971)\n(M arshall, J., concurring). And because the restriction applies only to one\nremedy and does not preclude the Department from seeking other effective\nremedies or prevent the Executive from objecting to inadequate desegregation\nplans, \xc2\xa7 3( 1)(D) does not exceed the congressional power over the enforcem ent\nauthority that is granted.\nWhere federal funds are provided, \xc2\xa7 3( I )(D) would be constitutional if read to\npreserve the governm ent\xe2\x80\x99s ability to fulfill its Fifth Amendment obligations by\ninitiating antidiscrimination suits, restricting only, and in a very limited fashion,\nthe D epartm ent\xe2\x80\x99s participation, by seeking a busing order, in the remedial phase\nof such suits. The Department would be authorized to seek alternative remedies\nand to com m ent on the sufficiency of these alternatives. If the alternative\nremedies to busing are inadequate in a particular case to vindicate the rights at\nstake, the court would retain authority, subject, o f course, to the Neighborhood\nSchool Act provisions, to order a transportation remedy. The Department could\nbe asked to com m ent on the sufficiency of this remedy if ordered by the court.\nMoreover, \xc2\xa7 3(1 )(D) would not appear to disable the Department of Justice\nfrom seeking a court order foreclosing the receipt of federal funding by schools in\nunconstitutionally segregated school systems in those cases, if any, where the\ncourt was prevented by the limits contained in the Neighborhood School Act\nfrom issuing an adequate remedy and the administrative agency was precluded\nfrom terminating federal funds. See Brown v, Califano, 627 F.2d 1221 (D.C. Cir.\n1980).\nF. Due Process Clause\nFinally, both the limitation on the courts under the Neighborhood School Act\nand on the D epartment of Justice under \xc2\xa7 3( 1)(D) should be upheld if challenged\nunder the equal protection component of the Fifth Amendm ent\xe2\x80\x99s Due Process\nClause, see Bolling v. Sharpe, 347 U .S. 497 (1954), as a deprivation of a judicial\nremedy from a racially identifiable group. These provisions neither create a racial\nclassification nor evidence a discriminatory purpose. Absent either of these\nconstitutional flaws, the provisions will be upheld if they are rationally related to\na legitimate government purpose. See Harris v. M cRae, 448 U.S. 297 (1980).\nAs the law has developed, the courts will review statutory classifications\naccording to a \xe2\x80\x9c strict scrutiny\xe2\x80\x9d standard either if they create a racial or other\n\xe2\x80\x9c suspect\xe2\x80\x9d classification, e .g .. H unter v. Erickson, 393 U.S. 385 (1969), or if\nthey reflect an invidious discriminatory purpose. E .g ., Village o f Arlington\nHeights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977);\nWashington v. D avis, 426 U.S. 229 (1976); cf. City o f M obile v. Bolden, 446\nU.S. 55 (1980) (plurality opinion). Satisfaction of the strict scrutiny standard\nrequires a classification that is narrowly tailored to achieve a compelling govem11\n\n\x0cm ental interest. N either basis for invoicing strict scrutiny appears to be applicable\nhere.\nFirst, these provisions, unlike the provision found unconstitutional in H unter\nv. Erickson, supra, do not contain a racial classification. Mandatory busing for\nthe purpose of achieving racial balance is only one of the circumstances in which\nstudent transportation is placed o ff limits to Justice Department suits or district\ncourt orders. The proposals prohibit Justice D epartment suits or court orders for\nthe transportation of students specified distances or away from the schools nearest\ntheir hom es for any reason. Moreover, a racial classification would not result even\nif these provisions limited advocacy or ordering of mandatory busing only to\nachieve racial integration. The issue o f what sorts of remedies the Justice\nD epartm ent should advocate or the federal district courts should order simply\ndoes not split the citizenry into discrete racial subgroups. Cf. Personnel Adm in\xc2\xad\nistrator v. Feeney, 442 U.S. 256 (1979).\nS econd, there appears to be no evidence of purposeful discrimination. W hat\xc2\xad\never m ight be the arguable impact on racial m inorities, the legislative history to\ndate contains no suggestion o f an invidious discriminatory purpose. To the\ncontrary, the sponsors and supporters of these measures endorsed the decision in\nBrown v. B oard o f Education, 347 U.S. 483 (1954), and repeatedly stated their\nabhorrence of de ju re segregation in schooling. The proponents rest their support\no f this legislation on the conclusion that busing has been destructive not only of\nquality education for all students but also of the goal of desegregation. Even the\nopponents of the bill did not suggest that any invidious purpose was present.\nAccordingly, the bill will not be subject to review under the strict scrutiny\nstandard. Instead, the bill will be reviewed, and upheld, under the principles of\nequal protection, if it is rationally related to a legitimate governmental purpose.\nThis test is a highly deferential one. It is reasonably clear that the defects in\nbusing noted by the proponents o f the bill and discussed above would suffice to\nsatisfy the m inim um rationality standard. Moreover, the proponents of these\nprovisions advanced other rationales to support the measure, including that\nm andatory busing is an excessive burden on the taxpayer; that it wastes scarce\npetroleum reserves; and that education is a local matter that should be adm in\xc2\xad\nistered on a local level. These reasons appear to be legitimate governmental\npurposes, and the busing restrictions appear to be rationally related to these\npurposes.\nIt should be noted in closing that these conclusions are predicated in substan\xc2\xad\ntial part on the legislative history of this bill to date. Subsequent history in the\nH ouse or thereafter could well affect these views.\nSincerely,\nW\n\n12\n\nil l ia m\n\nF r e n c h S m it h\n\n\x0c'


b'Applicability of the Post-Employment Restrictions of 18 U.S.C.\n\xc2\xa7 207(c) to Assignees Under the Intergovernmental Personnel\nAct\nThe post-employment restrictions of 18 U S.C. \xc2\xa7 207(c) apply to persons who are assigned from a\nuniversity or a state or local government to the Department of Energy under the intergovernmental\nPersonnel Act and are compensated at or above the ES-5 level, except for those who occupy\npositions ordinarily below the ES-5 level and who receive salaries only from the detailing\nemployers, with the federal agency reimbursing those employers for an amount less than an E S 5 salary.\n\nJune 26, 2000\nM em orandum O\n\np in io n f o r t h e\n\nA c t in g D e p u t y A s s is t a n t G e n e r a l C o u n s e l\nDepartm ent\n\nof\n\nE nergy\n\nYou have asked for our opinion whether the post-employment restrictions of\n18 U.S.C. \xc2\xa7 207(c) (1994 & Supp. IV 1998) apply to certain persons assigned\nfrom a university or a state or local government to the Department of Energy\n( \xe2\x80\x9c D O E\xe2\x80\x9d ) under the Intergovernmental Personnel Act, 5 U.S.C. \xc2\xa7\xc2\xa73371-3376\n(1994 & Supp. IV 1998) (\xe2\x80\x9c IPA\xe2\x80\x9d ), if the assignees are compensated at or above\nthe E S-5 level. The assignees in question, in our view, fall into four groups:\n(1) those who occupy positions normally compensated at or above the ES-5 level\nbut who receive salaries to which the federal contribution is only partial and does\nnot reach the ES-5 level; (2) those who occupy positions ordinarily below the\nE S-5 level and who receive salaries paid to them in part by their employing fed\xc2\xad\neral agency; (3) those who occupy positions ordinarily below the ES-5 level and\nwho receive salaries only from the university or state or local government, with\nthe agency reimbursing that employer for an amount equal to or greater than an\nE S-5 salary; and (4) those who occupy positions ordinarily below the ES-5 level\nand who receive salaries only from the university or state or local government,\nwith the agency reimbursing that employer for an amount less than an ES-5\nsalary.1 We conclude that section 207(c) covers the first three categories of\nassignees, but not the fourth.\n\n1 You drew the categories somewhat differently in your submissions. Letter for Dawn Johnson, Acting Assistant\nAttorney G eneral, Office o f Legal Counsel, from Susan F. Beard, Deputy Assistant General Counsel for Standards\no f Conduct, Department o f Energy (Nov 24, 1997), see also Letter for Daniel L. Koffsky, Special Counsel, Office\no f Legal Counsel, from Susan F. Beard, D eputy Assistant General Counsel for Standards of Conduct, Department\no f Energy (May 18, 1998) ("D O E Memorandum\xe2\x80\x9d ).\n\n94\n\n\x0cApplicability o f the Post-Employment Restrictions o f 18 U.S.C. \xc2\xa7 207(c) to Assignees Under the\nIntergovernmental Personnel Act\n\nI.\nUnder 18 U.S.C. \xc2\xa7 207(c), certain federal officers and employees are subject\nto a post-employment \xe2\x80\x9c cooling o f f \xe2\x80\x99 restriction, which prohibits them, within one\nyear of the end of their employment, from making,\nwith the intent to influence, any communication to or appearance\nbefore any officer or employee of the department or agency in\nwhich such person served . . . , on behalf of any other person\n(except the United States), in connection with any matter on which\nsuch person seeks official action by any officer or employee of such\ndepartment or agency.\nSee 18 U.S.C. \xc2\xa7 207(c)(1).2 Although a number of the provisions in section 207\n\napply to all executive branch employees,3 section 207(c) applies only to those\nemployees who occupy one of the high-level or senior positions identified by the\nstatute.4 Id. The positions identified by section 207(c) are those (1) compensated\nat a rate of pay specified according to subchapter II of chapter 53 of title 5;\n(2) compensated at a basic rate of pay that, excluding locality-based pay and other\nsimilar adjustments, is equal to or greater than the rate of basic pay for level\n5 of the Senior Executive Service (\xe2\x80\x9c E S -5\xe2\x80\x9d ); (3) filled through appointment by\nthe President or Vice-President under 3 U.S.C. \xc2\xa7\xc2\xa7 105, 106 (1994); or (4) held\nby a commissioned officer of the uniformed services in a pay grade of 0 - 7 or\nabove. 18 U.S.C. \xc2\xa7 207(c)(2).\nAll of the assignees in question here receive compensation at a rate greater\nthan the ES-5 level. The question is whether they are \xe2\x80\x9c employed in a position\n. . . for which the basic rate of pay . . . is equal to or greater than the rate\nof basic pay payable for [ES-5].\xe2\x80\x9d 18 U.S.C. \xc2\xa7 207(c)(2)(A)(ii) (emphasis added).\nThe IPA provides two methods by which employees may be temporarily\nassigned from a university or a state or local government to work for a federal\nagency. Under the first, the assignee is \xe2\x80\x9c appointed\xe2\x80\x9d in the agency and becomes\nentitled to a federal salary in accordance with the laws governing the pay of fed\xc2\xad\neral employees. 5 U.S.C. \xc2\xa7 3374(a)(1) & (b). Under the second, the assignee is\n\xe2\x80\x9c detailed\xe2\x80\x9d to a federal agency and is not entitled to federal pay, \xe2\x80\x9c except to the\nextent that the pay received from the [detailing employer] is less than the appro\xc2\xad\n2 Section 207 has seven specific exceptions See 18 U S.C. \xc2\xa7 207(j)(l)-(6); see also id. \xc2\xa7207(j)(7).\n*See, e .g , 18 U.S.C. \xc2\xa7207(a)(l) (1994) (life-time ban on representation involving certain matters in which an\nemployee was personally and substantially involved during government service); see also 18 U S.C. \xc2\xa7 207(a)(2) (twoyear ban on involvement in proceedings pertaining to certain matters previously pending under a former em ployee\xe2\x80\x99s\nofficial responsibility), 18 U S.C \xc2\xa7 207(b) (one-year ban on involvement in negotiations pertaining to certain treaties\npreviously pending before a former employee\xe2\x80\x99s agency) Other provisions m section 207 apply only to members\nof Congress or their employees See, e.g., 18 U.S C \xc2\xa7 207(e).\n4 Section 207(d) is similarly limited, applying only to very senior personnel specified in that provision o f the\nstatute. See 18 U.S C \xc2\xa7207(d) (1994)\n\n95\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\npriate rate of pay which the duties would warrant.\xe2\x80\x9d Id. \xc2\xa7 3374(a)(2) & (c)(1).\nThe federal agency may reimburse the detailing employer, in whole or in part,\nfor the detailee\xe2\x80\x99s pay. Id. \xc2\xa7 3374(c). Employees assigned under either of these\nmethods may receive compensation exceeding the ES-5 level under a number\nof different circumstances.\nII.\nWe turn first to assignees who occupy positions ordinarily compensated at the\nES-5 level or above, when the federal contribution to their salaries is less than\nthe amount of E S-5 compensation. These assignees may be detailed to such posi\xc2\xad\ntions, with the employer paying all or at least most of their salaries. Apparently,\nDOE also appoints some of these assignees and receives reimbursement from the\ndetailing employers.5 See Office o f Personnel Management, A Handbook on the\nIntergovernmental Personnel Act M obility Program, at 3 (1998) (\xe2\x80\x9c OPM Hand\xc2\xad\nbook\xe2\x80\x9d ) ( \xe2\x80\x9c Cost-sharing arrangements for mobility assignments are negotiated\nbetween the participating organizations.\xe2\x80\x9d ). These assignees, we believe, are cov\xc2\xad\nered by section 207(c).\nThe IPA declares that all detailees and appointees to federal agencies are federal\nemployees for purposes of section 207. 5 U.S.C. \xc2\xa7 3374(b) & (c)(2).6 Because\nsection 207(c), by its terms, covers federal employees who occupy positions com\xc2\xad\npensated at a \xe2\x80\x9c basic rate of pay . . . equal to or greater than the rate of basic\npay payable for [ES-5],\xe2\x80\x9d 18 U.S.C. \xc2\xa7 207(c)(2)(A)(ii), and because assignees in\nthis first category occupy such positions and, in fact, receive pay above the E S 5 level, they seem to fall squarely within section 207(c).\nThis conclusion fits the purposes of section 207(c). Congress intended section\n207(c), first enacted in title V o f the Ethics in Government Act of 1978, Pub.\nL. No. 95-521, 92 Stat. 1824, 1864,7 to curb the influence that a former employee\nwho carried out high or senior-level duties and responsibilities could exert, by\nvirtue o f special knowledge and a supervisory role, over former colleagues and\nsubordinates.8 The danger Congress sought to avoid arose from the nature of the\n5 Editor\xe2\x80\x99s Note. Subsequent to the issuance o f this opinion, DOE informed this Office that it has never had a\npractice o f appointing some assignees and receiving reimbursement from the detailing employers\n6 See 5 U.S.C. \xc2\xa73372 (providing that an em ployee assigned ftom an institution of higher education to a federal\nagency receives the same treatment as an employee o f a state or local government assigned to such an agency);\nsee also Applicability o f 18 U.S.C. \xc2\xa7207(c) to President-Elect\'s Transition Team, 12 Op O.L C. 264 (1988).\n7 Title V was passed as part o f an effort to develop federal ethics roles that could \xe2\x80\x9c prevent corruption and other\nofficial m isconduct\xe2\x80\x9d and to \xe2\x80\x9c avoid even the appearance o f public office being used for personal or private gain.\xe2\x80\x9d\nSenate Comm on Governmental Affairs, Public Officials Integrity Act o f 1977, S. Rep. No. 95-170, at 78 (1977),\nreprinted in Senate Comm on Governmental Affairs, 96th Cong , Office o f Government Ethics and Federal PostEm ploym ent Restrictions. Legislative History o f Titles IV and V o f the Ethics in Government Act o f 1979, As Amended\n75, 78 (Comm Print 1980) ( \xe2\x80\x9c Governmental Affairs Report\xe2\x80\x9d ) (emphasis added).\n8 As a report summarizing title V explained, section 207(c) was \xe2\x80\x9c intended to eliminate a major part of the problems\nrelating to the exertion o f influence by form er [high-level] employees over their former colleagues and subordinates\nafter they leave the government. The one year bar as to such contacts has the effect o f removing the opportunity\nfor such influence for the penod when, as a practical matter, such contacts would be viewed as having such effect.\xe2\x80\x9d\nG overnmental Affairs Report at 120\n\n96\n\n\x0cApplicability o f the Post-Employment Restrictions o f 18 U.S.C. \xc2\xa7 207(c) to Assignees Under the\nIntergovernmental Personnel Act\n\nduties the federal employee performs, for which the employee\xe2\x80\x99s pay is a proxy.\nWe find nothing to indicate that Congress believed that assignees performing highlevel or senior duties while in a federal agency \xe2\x80\x94 as indicated by the pay to which\nthe federal government had found occupants of their positions to be entitled \xe2\x80\x94\nsomehow would not pose this danger of undue influence merely because the fed\xc2\xad\neral government did not pay their entire salaries.9\nThe conclusion that the assignees here are subject to the requirements of section\n207(c) is also supported by the legislative history of section 3374. Although the\nlegislative history of section 3374, which was enacted eight years before section\n207(c)\xe2\x80\x99s passage,10 could not refer specifically to the one-year \xe2\x80\x9c cooling o f f \xe2\x80\x99\nperiod, the committee report expressed Congress\xe2\x80\x99s understanding that \xe2\x80\x9c [a]n\nemployee who is detailed to the Federal Government would remain a State govern\xc2\xad\nment employee for most purposes . . . [but such employees] would be considered\nFederal employees for the purpose of certain Federal employee laws including\nthose relating to conflict of interest.\xe2\x80\x9d See H.R. Rep. No. 91-1733, at 19 (1970),\nreprinted in 1970 U.S.C.C.A.N. 5879, 5897-98.\nTo be sure, the federal agency\xe2\x80\x99s contribution to the salaries of assignees in\nthis first category would fall below the ES-5 level, but in this instance there would\nbe no reason to believe that the allocation of financial responsibility would be\nbased on a decision by the agency that the responsibilities of the assignee would\nnot justify the total salary to be received. The position would remain classified\nat ES-5. In paying less than this amount, the federal agency would just be gaining\na benefit from the non-federal employer\xe2\x80\x99s willingness to continue the assignee\xe2\x80\x99s\npay.\nIII.\nWe turn next to detailees who occupy positions ordinarily below the ES-5 level,\nbut who are compensated at or above that level because of a federal payment\nthat supplements the salary they receive from their university or state or local\ngovernment employers. We understand that, in DOE\xe2\x80\x99s view, these assignees,\nalthough paid at the ES-5 level, should not be regarded as senior employees,\nas long as the positions they hold would ordinarily come within the General\nSchedule. See DOE Memorandum at 1. Two arguments are advanced in support\nof this position. First, positions covered by the General Schedule are typically\n9 Indeed, although we do not place reliance on subsequent legislative history, we note that lawmakers, in the\nyear after section 207(c)\xe2\x80\x99s enactment, were concerned that these requirements would make it difficult to move back\nand forth between positions in the federal government and positions in universities or state and local governments.\nSee 125 Cong Rec 11,474 (1979) (statement o f Rep Ford) (*\xe2\x80\x98[W]e spend several million dollars a year on the\nIntergovernmental Personnel Act, which is designed to let us lend to the State governments and for the State govern\xc2\xad\nments to lend back to us people with particular expertise, but the way this bill is written, it will leave the mistake\nthat we made m the last Congress. That mistake says that no one can leave the Federal Government and go work\nfor the State government.\xe2\x80\x9d )\n10See Pub L. No 91-648, 84 Stat 1909,1923 (1971)\n\n97\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nregarded as non-senior, with duties and responsibilities that, while perhaps impor\xc2\xad\ntant, are generally not considered high- level. Id. Second, DOE generally provides\nfunding to supplement the university or government salary that an assignee would\notherwise receive not to compensate for senior or high-level duties, but to ensure\nthat DOE remains competitive with private-sector or academic institutions\nemploying individuals with qualifications and backgrounds similar to those of its\nemployees. Id. at 2.\nWe believe the language of section 3374(c) of the IPA forecloses the argument\nthat a detailee in this category is not \xe2\x80\x9c employed in a position . . . for which\nthe basic rate of pay . . . is equal to or greater than the rate of basic pay payable\nfor [E S-5],\xe2\x80\x9d 18 U.S.C. \xc2\xa7 207(c)(2)(A)(ii), whether or not the detailee holds a\nposition ordinarily covered by the General Schedule. Detailees are not entitled\nto any pay directly from a federal agency unless the agency has determined that\nthe pay [to be received by the detailee] . . . is less than the appro\xc2\xad\npriate rate of pay which [his or her] duties would warrant under\nthe applicable pay provisions of this title or other applicable\nauthority.\n5 U.S.C. \xc2\xa7 3374(c)(1). Thus, under section 3374, an agency may supplement the\npay o f an IPA detailee only if it determines that the salary the detailee would\nordinarily receive would not adequately reflect the importance of the federal duties\nand responsibilities to be performed.\nBecause o f the standard set out in section 3374, the detailees to DOE who\nreceive salary supplements bringing them to or above the ES-5 level must be\nconsidered senior or high-level employees. As a matter of law, an agency\xe2\x80\x99s deci\xc2\xad\nsion under section 3374 to supplement the pay of detailees rests on a determination\nthat the duties to be performed warrant pay at the level selected. In deciding to\nsupplement the pay of detailees to reach the ES-5 level, DOE has thus resolved\nthat, whatever the usual nature o f the positions in which they are employed, those\npersons are performing duties and responsibilities comparable to those carried out\nby E S-5 level employees. Put differently, DOE has essentially decided that, for\nthe positions the detailees actually occupy, the rate of pay exceeds ES-5.\nOur conclusion squares with a 1996 decision of the Office of Government Ethics\n( \xe2\x80\x9c OG E\xe2\x80\x9d ). OGE concluded that section 207(c)\xe2\x80\x99s post-employment restrictions\napply to an IPA detailee compensated at the ES-5 level or above. Ethics in\nGovernment Reporter, OGE Informal Advisory Letter 96 x 14, at 2 (Aug. 2, 1996).\nIn that case, OGE considered the applicability of section 207(c) to the proposed\npost-employment activities of an employee detailed from a state university to a\nfederal agency. Rejecting the argument that an agency could properly regard a\nsupplement to the individual\xe2\x80\x99s salary as \xe2\x80\x9c an allowance or fringe benefit\xe2\x80\x9d rather\nthan \xe2\x80\x9c basic pay,\xe2\x80\x9d OGE concluded that section 207(c) applies to detailees whose\n98\n\n\x0cApplicability o f the Post-Employment Restrictions o f 18 U.S.C. \xc2\xa7 207(c) to Assignees Under the\nIntergovernmental Personnel Act\n\nbasic rate of pay is supplemented to a level above that paid to an ES-5. OGE\nreasoned, as we do here, that an agency may supplement the pay of a detailee\nonly after making a determination that his or her duties warrant the additional\ncompensation.\nIV.\nIn the final two situations, an IPA detailee occupies a position ordinarily com\xc2\xad\npensated at a salary less than the ES-5 level but receives from his or her university\nor state or local government employer a salary equal to or greater than ES-5.\nThe agency then reimburses the detailing employer, in whole or in part. In one\nof the situations, the amount of that reimbursement from the agency to the univer\xc2\xad\nsity or state or local government is equal to or greater than an ES-5 salary; in\nthe other, it is less. In both situations, while the position ordinarily would carry\na compensation below the triggering level, the position would appear, in the actual\ncircumstances, to carry a compensation above that level.\nIf the federal contribution reaches the triggering level, we believe that section\n207(c) would apply. The decision by a federal agency about the amount of that\ncontribution necessarily rests on a judgment about the value of the services to\nthe federal government. Section 207(c) uses the government\xe2\x80\x99s decision about such\ncompensation as a proxy for the employee\xe2\x80\x99s responsibility, without requiring any\nexamination into whether, in the particular case, the employee\xe2\x80\x99s responsibility is\nless than the compensation would suggest.\nDOE argues, however, that some detailees who occupy positions classified\nunder the General Schedule receive more than an ES-5 salary only because \xe2\x80\x9c these\npositions are very difficult to fill at the GS pay rates, which are not competitive\nwith private-sector or academic positions that require similar qualifications.\xe2\x80\x9d DOE\nMemorandum at 2. The detailees, DOE contends, still \xe2\x80\x9c perform[] GS level\nduties.\xe2\x80\x9d Id. at 1. This argument assumes that \xe2\x80\x9c GS level duties\xe2\x80\x9d are uniformly\nof a nature that would not confer post-employment influence on those who dis\xc2\xad\ncharged these duties. In practice, however, positions classified under the General\nSchedule may entail quite weighty responsibility. Employees paid under the Gen\xc2\xad\neral Schedule, for example, regularly appear on behalf of the United States before\nthe Supreme Court. Section 207(c) obviates the need for a case-by-case assessment\nwhether the responsibilities of a particular position are important enough to enable\nan occupant of the position to exercise post-employment influence. The ES-5\nstandard in section 207(c) provides a bright-line rule based only on the level of\npay. Here, whatever the nominal pay that DOE ascribes to the positions at issue,\nthe agency, in fact, is willing to pay more than an ES-5 salary. In this event,\nwe believe that section 207(c) applies, even if in some instances the statutory\nproxy exaggerates the employee\xe2\x80\x99s level of responsibility.\n99\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nOn the other hand, if the federal contribution is less than the triggering level,\nwe believe that the restriction of section 207(c) would not apply. Although the\nlanguage of section 207(c) might be read to reach the employee who receives\ncompensation above the triggering ES-5 amount even when the government\xe2\x80\x99s\nshare is less than that level, the language by no means compels that interpretation.\nWe believe that the \xe2\x80\x9c basic rate o f pay\xe2\x80\x9d for the position is best read to refer\nto the minimum pay that the federal agency has determined should be paid to\nthe occupant of a given position. The federal agency can make that determination\nin one of three ways: (1) by classifying the position at a certain pay level; (2)\nby deciding what amount of money to contribute to a non-federal employer; or\n(3) by deciding what supplement to a non-federal payment is required to make\nthe total pay reflect \xe2\x80\x9c the appropriate rate of pay which [his or her] duties would\nwarrant\xe2\x80\x9d under section 3374(c). When the federal agency does not supplement\na detailee\xe2\x80\x99s pay to ensure that his or her total pay is commensurate with federal\nresponsibilities normally compensated at or above the ES-5 level, and when it\nreimburses the detailing employer an amount less than that level, the agency\ncannot be said to have made a determination that the detailee\xe2\x80\x99s federal duties\nwarrant compensation at the triggering level specified in the statute. See OPM\nHandbook at 3 (\xe2\x80\x9c Cost-sharing arrangements should be based on the extent to\nwhich the participating organizations benefit from the assignment.\xe2\x80\x9d ). Rather, in\nsuch circumstances, the detailee\xe2\x80\x99s receipt of pay at or above the ES-5 level reflects\na decision by the detailing em ployer about the suitable level of the detailee\xe2\x80\x99s pay.\nThat decision may reflect a judgment based on any number of factors, including\nthe value to the detailing employer of the detailee\xe2\x80\x99s federal experience, or a desire\nto accommodate the interests o f a valued employee, but it in no sense reflects\na judgm ent by the fed era l agency that the detailee\xe2\x80\x99s federal responsibilities warrant\npay at or above the ES-5 level.\nWe recognize that this interpretation creates an apparent anomaly. Two detailees\nmaking the same salary, with the federal contribution the same in both cases,\nmay be treated differently. If a detailee receives most of his salary from the\ndetailing employer but also obtains a supplement from his agency that raises his\ncompensation above the ES-5 level, he or she will become subject to section\n207(c). See Part HI, supra. If a detailee is paid the same total salary, all from\nthe detailing employer, and the federal agency reimburses the detailing employer\nan amount equal to the first detailee\xe2\x80\x99s salary supplement, but that salary supple\xc2\xad\nment is less than an ES-5 salary, section 207(c) would not apply. The apparent\nanomaly results, however, from the determination about a detailee\xe2\x80\x99s duties that\n5 U.S.C. \xc2\xa7 3374(c)(1) requires the agency to make before it can directly pay a\ndetailee. When an agency reimburses the detailing agency by an amount less than\n\n100\n\n\x0cApplicability o f the Post-Employment Restrictions o f 18 U S C. \xc2\xa7 207(c) to Assignees Under the\nIntergovernmental Personnel Act\n\nan ES-5 salary, by contrast, there is no ground for concluding that the agency\nhas made the necessary determination about the detailee\xe2\x80\x99s duties.\'1\nConclusion\nWe therefore conclude that assignees who are compensated at or above the E S 5 level are high-level or senior officials and are subject to the post-employment\nrestrictions of section 207(c), except for those receiving their salaries from their\ndetailing employers, with the federal reimbursement to those employers falling\nbelow the ES-5 level.\nDANIEL L. KOFFSKY\nActing Deputy Assistant Attorney General\nOffice o f Legal Counsel\n\n11 It is o f course possible lhat an agency might view a detailee\xe2\x80\x99s duties as warranting pay at the ES-5 level,\nbut still be able to arrange a lower reimbursement amount with the detailing employer This anomaly results from\nCongress\xe2\x80\x99s decision to adopt a bright line rule using agency decisions about compensation as a proxy for responsibil\xc2\xad\nities\n\n101\n\n\x0c'


b"Legislation Prohibiting Payment of Interest on Compensation\nAwards Under the 1980 Omnibus Territories Act\nCongress may eliminate or modify claims which are purely statutory w ithout violating\nthe Fifth Amendment to the Constitution, unless those claims have ripened into final\njudgments. Thus, legislative repeal o f a provision requiring payment o f interest on\ncompensation awards authorized by 48 U.S.C. \xc2\xa7 1424c is constitutionally permissible,\nexcept insofar as it purports to affect cases in which an award o f damages has become\nfinal.\n\nJuly 29, 1981\nM EM ORANDUM OPIN IO N FOR T H E COUNSEL TO T H E\nD IRECTO R, O FFIC E O F M A N A G EM EN T A N D BU D G ET\nThis responds to your request for the views o f this Office with\nrespect to the constitutionality of proposed legislation prohibiting the\npayment of interest on compensation awards made under certain provi\xc2\xad\nsions of the 1980 Omnibus Territories Act, 48 U.S.C. \xc2\xa7 1424c (Supp. IV\n1980). For the reasons that follow, we believe that any such prohibition\nwould be constitutional unless it were applied to final judgments\nawarded under \xc2\xa7 1424c.\n\nI. Background\nIn the latter stages of World W ar II and into the postwar years, the\nDepartment of Defense established certain military bases on the island\nof Guam. The land used for these bases was acquired from local\nlandowners either through negotiated sale or through condemnation\nproceedings, generally conducted under military authority. See 123\nCong. Rec. 31073 (1977) (remarks o f Rep. Burton); Franquez v. United\nStates, 604 F.2d 1239 (9th Cir. 1979). Thereafter, some .local landowners\ncontended that the United States had treated them unfairly and thus\ndeprived them of their right to just compensation under the Fifth\nAmendment.\nThe statutory provisions at issue here responded to these contentions.\nIn 1977, Congress passed 48 U.S.C. \xc2\xa7 1424c, which grants the district\ncourt of Guam jurisdiction\nto review claims of persons, their heirs or legatees, from\nwhom interests in land on Guam were acquired other\n235\n\n\x0cthan through judicial condemnation proceedings, in which\nthe issue o f compensation was adjudicated in a contested\ntrial in the District C ourt of Guam, by the United States\nbetween July 21, 1944, and August 23, 1963, and to award\nfair compensation in those cases where it is determined\nthat less than fair m arket value was paid as a result of (1)\nduress, unfair influence, or other unconscionable actions,\nor (2) unfair, unjust, and inequitable actions of the United\nStates.\nU nder these provisions, fair compensation is defined to include \xe2\x80\x9csuch\nadditional amounts as are necessary to effect payment of fair market\nvalue at the time o f acquisition, if it is determined that, as a result of\nduress, unfair influence, o r other unconscionable actions, fair market\nvalue was not paid.\xe2\x80\x9d 48 U.S.C. \xc2\xa7 1424c(c). Since the enactment of a\n1980 amendment, Pub. L. No. 96-205, \xc2\xa7 301, 94 Stat. 84, 87-88, this\nprovision has required payment of interest on sums not paid.\nII. Discussion\nA t the outset, we note that the rights created by 48 U.S.C. \xc2\xa7 1424c\nare statutory in nature. If landowners in Guam have a constitutional\nclaim to just compensation under the Fifth Amendment, and if just\ncompensation must include interest payments, see Shoshone Tribe o f\nIndians v. United States, 299 U.S. 476, 497 (1937), nothing in \xc2\xa7 1424c\nbars an appropriate suit in the Court of Claims. The allowance of\ninterest payments under the current provision does not affect the avail\xc2\xad\nability o f such payments under the Just Compensation Clause; similarly,\nthe disallowance of interest payments under a statutory amendment\nwould not affect suits in which recovery was sought, not under the\nstatute, but for a constitutional \xe2\x80\x9ctaking.\xe2\x80\x9d W e do not believe that 48\nU.S.C. \xc2\xa7 1424c should be understood to preempt existing statutes that\nmay provide remedies for constitutional takings.\nIn this light, the primary issue raised by your inquiry is whether, in\ncases in which the Fifth Amendment does not require compensation,\nlegislative repeal of the allowance o f interest by \xc2\xa7 1424c would be\nconstitutional. W e believe that such a repeal would be permissible\nexcept to the extent that it purported to affect judgments that are final\nin the sense that a determination of damages and liability has been made\nand the time for the taking of an appeal has passed.\nT he general rule is that once an award of damages has become final,\nCongress may not constitutionally eliminate the liability of the United\nStates under a final judgment. The rule was stated in McCullough v.\nVirginia, 111 U.S. 102, 123-24 (1898):\nIt is not within the power o f a legislature to take away\nrights which have been once vested by a judgment. Legis\xc2\xad\nlation may act on subsequent proceedings, may abate ac\xc2\xad\n236\n\n\x0ctions pending, but when those actions have passed into\njudgment the power of the legislature to disturb the rights\ncreated thereby ceases.\nIn certain cases, of course, Congress may alter the remedies issued in a\nfinal judgment, but there is no authority for the proposition that Con\xc2\xad\ngress may eliminate a final judgment for monetary relief. The basic rule\nis stated in numerous cases. See, e.g., Pennsylvania v. Wheeling and\nBelmont Bridge Co., 59 U.S. (18 How.) 421, 431 (1855) (allowing Con\xc2\xad\ngress to overturn final judgment requiring removal of bridge as obstruc\xc2\xad\ntion to navigation, but stating \xe2\x80\x9cif the remedy in this case had been an\naction at law, and a judgment entered in favor of the plaintiff for\ndamages, the right to these would have passed beyond the reach of the\npower of Congress\xe2\x80\x9d) (dictum); Hodges v. Snyder, 261 U.S. 600, 603-04\n(1923), (\xe2\x80\x9ca suit brought for the enforcement of a public right . . . even\nafter it has been established by the judgment of the court, may be\nannulled by subsequent legislation and should not be thereafter en\xc2\xad\nforced; although, in so far as a private right has been incidentally\nestablished by such judgment, as fo r special damages to the plaintiff or\nfo r his costs, it may not be thus taken away\xe2\x80\x9d) (emphasis added); Daylo v.\nAdminstrator o f Veterans\xe2\x80\x99 Affairs, 501 F.2d 811, 816 (D.C. Cir. 1974);\nComm'rs o f Highways o f Towns o f Annawan, et al. v. United States, 466\nF. Supp. 745, 764-65 (N.D. 111. 1979) (\xe2\x80\x9cIt is clear that the River and\nHarbor Act of 1958 could not . . . interfere with plaintiffs\xe2\x80\x99 rights under\nthe condemnation decrees\xe2\x80\x9d); Battaglia v. General Motors Corp., 169 F.2d\n254, 259 (2d Cir. 1948) (Congress may eliminate or modify claims, \xe2\x80\x9cso\nlong as the claims, if they were purely statutory, had not ripened into\nfinal judgment\xe2\x80\x9d).\nIn our view, these cases compel the conclusion that once an award\nunder \xc2\xa7 1424c has become final, the prevailing party has a \xe2\x80\x9cvested\nright\xe2\x80\x9d to them, and Congress may not remove that right without\nviolating the Fifth Amendment. For this reason, we believe that any\nlegislation insulating the government from liability under the Act may\naffect only those claims that have not been made subject of a final\njudgment. At the same time, the cases cited above stand for the propo\xc2\xad\nsition that, before final judgment has been entered, Congress may affect\nthe relevant claims by eliminating the provision for payment of interest.\nWe understand that the claims to be litigated in district court in\nGuam will be subject to a bifurcated proceeding: an initial trial on\ndamages, in which the verdict is solely advisory; and a subsequent trial\non liability. If a claimant prevails at the liability stage, the determina\xc2\xad\ntion of damages will become relevant, though it is subject to modifica\xc2\xad\ntion by the trial judge. Under this procedure, the award will not\nbecome final for Fifth Amendment purposes until the time for the\ntaking of an appeal from the liability ruling has passed.\n237\n\n\x0cIII. Conclusion\n\nFor the reasons stated above, Congress has the authority to eliminate\ninterest payments on awards made under 48 U.S.C. \xc2\xa7 1424c unless the\nright to such payments had become \xe2\x80\x9cvested\xe2\x80\x9d in the sense that it is the\nsubject of a final judgment. In all other cases, Congress may modify\n\xc2\xa7 1424c without violating the Fifth Amendment.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n238\n\n\x0c"


b'Presidential Appointment of Foreign Agents\nWithout the Consent of the Senate\nThere are many precedents to sustain the power of the President, without the advice and consent of the\nSenate, to appoint special agents or personal representatives for the purpose of conducting negotiations or investigations.\n\nSeptember 23, 1943\n\nMEMORANDUM FOR THE ASSISTANT SOLICITOR GENERAL\nClause 2 of Section 2, Article II, of the Constitution provides that the President\n\xe2\x80\x9cshall nominate, and by and with the Advice and Consent of the Senate, shall\nappoint Ambassadors, other public Ministers and Consuls.\xe2\x80\x9d There are, however,\nmany precedents to sustain the power of the President, without the advice and\nconsent of the Senate, to appoint agents for the purpose of conducting negotiations\nor investigations. Some Senators have at times objected to the Presidents\xe2\x80\x99 actions\nas being without constitutional authority, but the question has not been passed\nupon by the courts. Precedents are set forth in 4 John Bassett Moore, A Digest of\nInternational Law \xc2\xa7 632, at 452\xe2\x80\x9356 (1904), and 4 Green Haywood Hackworth,\nDigest of International Law 409\xe2\x80\x9314 (1942). See also Edward S. Corwin, The\nPresident\xe2\x80\x99s Control of Foreign Relations 63\xe2\x80\x9366 (1917).\nPersons appointed as such special agents or representatives are considered to be\nthe personal representatives of the President and not \xe2\x80\x9cAmbassadors\xe2\x80\x9d or other\n\xe2\x80\x9cpublic Ministers\xe2\x80\x9d within the meaning of the constitutional provision. In many\ncases such personal representatives have been given diplomatic rank, including\nthat of minister, envoy, and ambassador. Special representatives with diplomatic\nrank are not formally accredited to the foreign governments as official diplomatic\nrepresentatives of our government. It is customary before making such an\nappointment for the State Department to ascertain from the foreign government\nconcerned whether the appointment is acceptable. If so, such appointees are\naccredited informally. They are then customarily accorded the diplomatic privileges and courtesies pertaining to their rank.\nTwo recent examples of special envoys with diplomatic rank are, as cited in Mr,\nHackworth\xe2\x80\x99s digest, the appointments by President Roosevelt of (1) Norman H.\nDavis in March 1933 as Chairman of the Delegation of the United States to the\nGeneral Disarmament Conference at Geneva, with the rank of Ambassador while\nserving in that capacity; and (2) Myron Taylor in 1938 as the American representative on the special intergovernmental committee to facilitate the emigration from\nAustria and Germany of political refugees, with the rank of Ambassador Extraordinary and Plenipotentiary. 4 Hackworth, Digest of International Law at 412.\nMoore gives the following instances of appointments by the Secretaries of\nState:\n\n457\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nMay 12, 1825, John James Appleton was appointed by the Secretary of State to arrange a settlement of claims against Naples.\n....\nApril 17, 1847, Nicholas P. Trist, who was then chief clerk of the\nDepartment of State, was appointed a commissioner to conclude a\ntreaty of peace with Mexico, which he did on February 2, 1848.\n....\nIn 1861 Archbishop Hughes and Bishop McIlvaine were sent to\nEurope by Mr. Seward, with the approval of the President and his\nCabinet, as confidential agents in relation to questions growing out\nof the civil war.\n....\nA.B. Steinberger was appointed by the Secretary of State, under\ndirection of the President, March 29, 1873, as a special agent to Samoa.\n4 Moore, Digest of International Law \xc2\xa7 632, at 453\xe2\x80\x9354.\nWith respect to the appointment of Mr. Trist, it appears that the instructions\nissued to him by Mr. Buchanan, Secretary of State, stated in part:\nThe President, therefore, having full confidence in your ability,\npatriotism, and integrity, has selected you as a commissioner to the\nUnited Mexican States, to discharge the duties of this important mission.\n5 id. \xc2\xa7 858, at 781.\nThe instructions issued to the other appointees above mentioned are not given.\nIt also appears that Mr. Clayton, as Secretary of State, on June 18, 1849, issued\nto Mr. A. Dudley Mann, who was then in Europe, instructions in relation to a\nmission as a special and confidential agent to Hungary. Mr. Mann was given a\nletter (presumably signed by the Secretary of State) introducing him to the\nMinister for Foreign Affairs in Hungary as \xe2\x80\x9cspecial and confidential agent of the\nUnited States to the Government of Hungary.\xe2\x80\x9d 1 id. \xc2\xa7 72, at 219. Moore, however,\nalso states that Mr. Mann \xe2\x80\x9cwas appointed by President Taylor as a special and\nconfidential agent to Hungary.\xe2\x80\x9d 4 id. \xc2\xa7 632, at 453. I suppose that in all five cases\nabove mentioned the State Department would take the position that in making the\nappointments the Secretary acted for and under the direction of the President.\nI spoke to Mr. Hackworth, Legal Adviser to the Secretary of State, with respect\nto the practice in this matter. He said that there was no uniform procedure. In the\n\n458\n\n\x0cPresidential Appointments of Foreign Agents Without the Consent of the Senate\n\ncase of Dr. Frank P. Corrigan, President Roosevelt issued a commission to him in\n1937 designating him \xe2\x80\x9cSpecial Representative with the rank of Envoy Extraordinary and Minister Plenipotentiary\xe2\x80\x9d to meet with representatives of the Governments of Venezuela and Costa Rica to aid in the solution of the boundary controversy. On the other hand, when Mr. Phillips was sent recently to India, the\nSecretary of State wrote to Mr. Phillips in substance that he was enclosing a letter\nsigned by the President addressed to the Viceroy regarding his appointment to\nserve near the Government of India as the President\xe2\x80\x99s personal representative. The\nSecretary further stated that his letter would serve in lieu of formal credentials.\nThe usual form of credentials was not used in this case because Mr. Phillips was\nnot being accredited to any foreign government.\nMr. Hackworth further advises that in all cases of special representatives the\ninstructions to them are prepared in the Department of State and signed by the\nSecretary or the Acting Secretary of State. The State Department also prepares for\nthe President\xe2\x80\x99s signature such formal document or letter as may be required or\ndesired in the particular case. When serving in a special capacity, the names of the\nrepresentatives are not submitted by the State Department to the Senate.\nW.H. EBERLY\nAttorney-Adviser\nOffice of the Assistant Solicitor General\n\n459\n\n\x0c'


b'Imposition of Agricultural Export Controls Under \xc2\xa7 5 of\nthe Export Administration Act of 1979\nE xport o f agricultural com m odities can be restrained under the national security controls\no f \xc2\xa7 5 o f the E xport Adm inistration A ct o f 1979 only if the exports in question\nconstitute " a significant contribution to the m ilitary potential\xe2\x80\x9d o f the im porting\ncountry.\nW hether grain exports will contribute significantly to the m ilitary potential o f the Soviet\nUnion is a question o f fact for the President to determine.\n\nJanuary 17, 1980\nT\n\nhe\n\nC\n\noun sel to th e\n\nP r e s id e n t\n\nI am responding to your memorandum of January 14,\n1980, regarding the availability of \xc2\xa7 5 of the Export Administration Act\nof 1979, 50 U.S.C. App. \xc2\xa7 2404, as a basis for the imposition of agricul\xc2\xad\ntural export controls on exports to the Soviet Union. I agree that there\nis sufficient factual basis to conclude that the invasion of Afghanistan\nby the Soviet Union threatens the security of neighboring countries,\nincluding Pakistan, and therefore threatens our security as defined by\n\xc2\xa7 3(2)(A) of the Act, 50 U.S.C. App. \xc2\xa7 2404(2)(A). I also agree that\n\xc2\xa7 7(g)(1) of the 1979 Act contemplates that under appropriate circum\xc2\xad\nstances the export of agricultural commodities can be restrained under\nthe national security controls of \xc2\xa75. See 50 U.S.C. App. \xc2\xa7 2406(g)(1).\nThe remaining question is whether exports of grain in the amounts\ninvolved here constitute \xe2\x80\x9ca significant contribution to the military po\xc2\xad\ntential\xe2\x80\x9d of the Soviet Union as required by \xc2\xa7 3(2)(A) of the 1979 Act.\nThe quoted language first appeared in the Export Administration Act\nin 1962. Between 1949, when the Export Administration Act was first\nadopted, and 1962, the President had been empowered to impose na\xc2\xad\ntional security controls over exports based upon a standard of \xe2\x80\x9cneces\xc2\xad\nsary vigilance over exports from the standpoint of their significance to\nthe national security.\xe2\x80\x9d Act of Feb. 26, 1949, \xc2\xa7 2.1\nIn 1962, the 1949 Act was amended to limit the use by the President\nof national security controls. The \xe2\x80\x9cnational security\xe2\x80\x9d ground was refor\xc2\xad\nM y D e a r S ir:\n\n11 n o te th a t th e 1949 A c t, as h as e v e ry am e n d m e n t to it since, sin g le d o u t a g ric u ltu ra l c o m m o d itie s\nfo r special c o n s id e ra tio n w ith re g a rd to e x p o rt c o n tro ls . T h e 1979 A c t reem p h asize s th a t h isto ric\nc o n c e rn , se ttin g fo rth in \xc2\xa7 3 (1 1 ) a p o licy \xe2\x80\x9c to m inim ize re s tric tio n s o n th e e x p o rt o f a g ric u ltu ra l\nc o m m o d itie s an d p ro d u c ts ."\n\ni\n\n\x0cmulated to authorize export controls \xe2\x80\x9cif the President shall determine\nthat such export makes a significant contribution to the military or\neconomic potential o f\xe2\x80\x9d (emphasis added) a nation to be subjected to\nrestrictions. This amendment clearly expressed a congressional determi\xc2\xad\nnation that the contribution made by any embargoed goods be both\nsignificant and related to either the military or economic sectors of the\nforeign country involved.\nIn 1969, Congress further restricted the \xe2\x80\x9cnational security\xe2\x80\x9d power\nover exports by removing, over the objection of spokesmen for the\nNixon Administration, the phrase \xe2\x80\x9cor economic\xe2\x80\x9d from the language of\nwhat is now \xc2\xa7 3(2)(A). This amendment was proposed in a bill cospon\xc2\xad\nsored by then Senator Mondale in order to restrict the President\xe2\x80\x99s\npower over exports.\nThe legislative history and evolution of the President\xe2\x80\x99s power to\ncontrol exports in the name of \xe2\x80\x9cnational security\xe2\x80\x9d is instructive with\nregard to interpretation of the critical language in \xc2\xa7 3(2)(A) in two\nregards. First, the goods to be embargoed must make a significant\xe2\x80\x94as\nopposed to a minimal or marginal\xe2\x80\x94contribution to military potential.\nThe structure of the 1979 Act and its legislative history suggest that\nthis significance may be based on either the volume or the nature of\nany particular proposed export. Second, this \xe2\x80\x9csignificant contribution\xe2\x80\x9d\nmust have an articulable factual nexus to \xe2\x80\x9cmilitary potential.\xe2\x80\x9d\nYour memorandum of January 14, without stating a basis for its\nconclusion, assumes the basic factual predicate to invocation of \xc2\xa7 5.\nAt the time I wrote my memorandum of January 10,\xe2\x80\x99 none of the\nagencies with access to the relevant information had come forward\nwith facts that would establish a nexus between the grain embargo and\nthe military potential of the Soviet Union as required under \xc2\xa7 3(2)(A).\nYou now advise that the Deputy Secretary of Defense has concluded\non the basis of intelligence reports and historical experience: (1) That\nthe denial of grain in the amounts involved here will significantly\nundermine public support among the Soviet populace for the Afghani\xc2\xad\nstan invasion; and (2) that this deterioration of public support will\nundercut the resolve of the Soviet leadership to continue the occupa\xc2\xad\ntion of Afghanistan. On this ground the Deputy Secretary of Defense\nhas determined that these grain shipments make a significant contribu\xc2\xad\ntion to the willingness and ability of the Soviet leadership to continue\nmilitary operations in Afghanistan, and this resolve on the part of the\nSoviet leadership is an essential component of the \xe2\x80\x9cmilitary potential\xe2\x80\x9d\nof the Soviet Union.\n*\nN o t e : In a m e m o ra n d u m d a te d J a n u a ry 10, 1980, th e A tto r n e y G e n e ra l re c o m m e n d e d to th e\nP re s id e n t th a t h e re ly o n ly u p o n \xc2\xa7 6 o f th e 1979 E x p o rt A d m in istra tio n A c t, a n d n o t u p o n \xc2\xa7 5 , in\nc o n n e c tio n w ith his im p o sitio n o f a g ric u ltu ra l e x p o rt c o n tro ls . S e c tio n 6 a u th o riz e s e x p o rt c o n tr o ls \xe2\x80\x9c to\nth e e x te n t n e c e ssa ry to fu rth e r s ig n ific a n tly th e fo reig n p o lic y o f th e U n ite d S ta te s o r to fulfill its\nd e c la re d in te rn a tio n a l o b lig a tio n s.\xe2\x80\x9d 50 U .S .C . A p p . \xc2\xa7 2405(a)(1). E d .\n\n2\n\n\x0cThe reason you advance in your January 14 memorandum for invok\xc2\xad\ning \xc2\xa7 5 as well as \xc2\xa7 6 \xe2\x80\x9cwhen the action is clearly supportable under \xc2\xa7 6\nalone,\xe2\x80\x9d is your judgment that the reliance on national security grounds\nwill decrease the chances of a significant effort to organize a two-house\nveto as the statute provides in the case of \xc2\xa7 6 actions. But there will be\na report under \xc2\xa7 6 in any event. And if there are to be hearings and if a\nresolution of disapproval is to be introduced, as we suspect will happen\nin any event, the procedural vehicle will be available. I also understand\nthat it is your judgment, as well as the general consensus of the other\ninvolved agencies, that such a resolution of disapproval will fail regard\xc2\xad\nless of whether we rely on \xc2\xa7 6 alone or on both \xc2\xa7\xc2\xa7 5 and 6. Therefore it\nis difficult for me to understand what strategic advantage is to be\ngained by including \xc2\xa7 5.\nI understand that you have put forward a second argument, which is\nnot included in your January 14 memorandum, to the effect that Presi\xc2\xad\ndent Carter said in the 1976 campaign that he would cut off grain sales\nto the Soviet Union only when national security required. But it seems\nrather clear from the series of campaign statements that the President in\n1976 was not talking in the technical language of the Export Adminis\xc2\xad\ntration Act. He clearly served notice at that time that armed aggression\nby the Soviet Union which threatened our allies would constitute the\nkind of extreme circumstance in which it might be necessary to cut off\nthe export of grain as well as other goods and materials to the Soviet\nUnion. Whether the particular action would be taken under \xc2\xa7 5 or \xc2\xa7 6\nof the Export Administration Act was not the issue. The President\xe2\x80\x99s\naction of blocking exports in this case is consistent with his 1976\nstatements.\nIn sum, the question whether the grain exports at issue here contrib\xc2\xad\nute significantly to the military potential of the Soviet Union is a\nquestion of fact. That question is for the determination of the President,\nand if he makes such a determination on the facts of this case he is\nauthorized to invoke \xc2\xa7 5. However, it is my view that the wiser course\nis to proceed on the basis of \xc2\xa7 6 alone. I believe that the controversy\nand debate that will be generated in the Congress over the President\xe2\x80\x99s\ninvocation of the limited national security authority provided under the\nExport Administration Act will unnecessarily cloud the real issue,\nwhich is the decision to cut off these grain shipments to the Soviet\nUnion.\nSincerely,\nB e n ja m in\n\n3\n\nR.\n\nC iv ile tti\n\n\x0c'