b'Application of the Mansfield Amendment\nto the Use of United States Military Personnel and\nEquipment to Assist Foreign Governments\nin Drug Enforcement Activities\nT he M ansfield Am endm ent to the Foreign Assistance Act provides that \xe2\x80\x9cno officer or employee\nof the U nited States m ay engage in or participate in any direct police arrest action in any\nforeign country with respect to narcotics control efforts.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 2291(c). Although the\nquestion o f what constitutes a \xe2\x80\x9cd irect police arrest action\xe2\x80\x9d within the meaning of the Amend\xc2\xad\nm ent is not unambiguously answered by the language of the statute, the legislative history\ndem onstrates that Congress was anim ated by concern that U nited States officers and employ\xc2\xad\nees not participate directly in jo in t drug raids with foreign authorities. The Amendment\nshould therefore be understood to prohibit participation in narcotics control activity that\nw ould under norm al circumstances be likely to lead to the arrest of foreign nationals. It does\nnot prohibit involvem ent of United States officers in activities that would not ordinarily\ninvolve arrests.\n\nSeptember 18, 1986\nM\n\nem orandum for th e\n\nA ttorney G\n\neneral\n\nThis memorandum responds to your request for the views of this Office\nregarding the applicability of the Mansfield Amendment, 22 U.S.C. \xc2\xa7 2291(c),\nto the use of United States military officers and equipment to assist foreign\ngovernments in their drug enforcement activities. You have also asked this\nOffice to consider the possible statutory bases for using United States military\npersonnel and equipment to assist in such operations.\nThe Mansfield Amendment provides that \xe2\x80\x9cno officer or employee of the\nUnited States may engage or participate in any direct police arrest action in any\nforeign country with respect to narcotics control efforts.\xe2\x80\x9d The critical legal\nquestion raised by the Amendment is what constitutes a \xe2\x80\x9cdirect police arrest\naction.\xe2\x80\x9d The legislative history of the Amendment makes clear that Congress\xe2\x80\x99\ncentral concern was that United States narcotics agents not participate in\nforeign drug raids and other law enforcement operations in which force was\nlikely to be used. The standard employed by Congress for demarcating the\nscope of \xe2\x80\x9cdirect police arrest action\xe2\x80\x9d under the Mansfield Amendment was\nwhether the activity would, under normal circumstances, involve the arrest of\nindividuals.\nWe believe the Amendment prohibits participation by United States officers\nin foreign anti-drug operations which typically involve arrests, such as drug\n122\n\n\x0craids. Conversely, it does not in our judgment prohibit involvement of United\nStates officers in activities that do not typically involve arrests, such as plan\xc2\xad\nning and preparing for a drug raid. Nor does it limit training of foreign agents,\nthe provision of intelligence or equipment for drug operations, or participation\nin operations aimed solely at destroying drug crops or drug facilities where\narrests are not expected.\nThe application of these general observations may raise difficult questions in\nthe circumstances of any particular case.\nThe Mansfield Amendment to the Foreign Assistance Act provides as follows:\n(1) Notwithstanding any other provision of law, no officer or\nemployee of the United States may engage or participate in any\ndirect police arrest action in any foreign country with respect to\nnarcotics control efforts. No such officer or employee may\ninterrogate or be present during the interrogation of any United\nStates person arrested in any foreign country with respect to\nnarcotics control efforts without the written consent of such\nperson. The provisions of this paragraph shall not apply to the\nactivities of the United States Armed Forces in carrying out their\nresponsibilities under applicable Status of Forces arrangements.\n(2) Paragraph (1) of this subsection shall not prohibit officers\nand employees of the United States from being present during\ndirect police arrest actions with respect to narcotics control\nefforts in a foreign country to the extent that the Secretary of\nState and the government of that country agree to such an\nexemption. The Secretary of State shall report any such agree\xc2\xad\nment to the Congress before the agreement takes effect.\n22 U.S.C. \xc2\xa7 2291(c). Before turning specifically to the questions you have\nraised about the applicability of the Mansfield Amendment, we address the\ncongressional authorization for committing military personnel and equipment\nto assist in foreign anti-drug operations.\nI. Statutory Basis in the Foreign Assistance Act for Providing\nUnited States Military Personnel and Equipment\nto Assist in Foreign Anti-Drug Activities\nThe Foreign Assistance Act authorizes the President to furnish United States\npersonnel and material resources to assist foreign governments in the enforce\xc2\xad\nment of their drug laws. Section 2291(a) of Title 22 (\xc2\xa7 481 of the Foreign\nAssistance Act)1 stresses the necessity of international cooperation \xe2\x80\x9cto control\nthe illicit cultivation, production, and smuggling of, trafficking in, and abuse of\nnarcotic and psychotropic drugs,\xe2\x80\x9d and declares that \xe2\x80\x9cinternational narcotics\n1 This authority and the related appropriations authority are often referred to by the section designation in\nthe Foreign A ssistance Act.\n\n123\n\n\x0ccontrol programs\xe2\x80\x9d should include elimination of narcotics-producing crops as\nwell as \xe2\x80\x9csuppression of the illicit manufacture of and traffic in narcotic and\npsychotropic drugs.\xe2\x80\x9d Accordingly, \xc2\xa7 2291(a) expressly authorizes the Presi\xc2\xad\ndent \xe2\x80\x9cto conclude agreements with other countries to facilitate control of the\nproduction, processing, transportation, and distribution of narcotics.\xe2\x80\x9d More\nimportantly, this section provides:\nNotwithstanding any other provision of law, the President is\nauthorized to furnish assistance to any country or international\norganization, on such terms and conditions as he may deter\xc2\xad\nmine, for the control o f narcotic and psychotropic drugs and\nother controlled substances.\nAlthough the language of this section does not expressly refer to military\nassistance, we believe that the section clearly authorizes the President to\nprovide such assistance. Unlike other provisions of the Foreign Assistance Act,\nwhich explicitly distinguish among \xe2\x80\x9ceconomic,\xe2\x80\x9d \xe2\x80\x9cmilitary,\xe2\x80\x9d and \xe2\x80\x9cnonmili\xc2\xad\ntary,\xe2\x80\x9d assistance,2 the language of \xc2\xa7 2291(a) of the Act is not qualified, broadly\nallowing for all types of assistance \xe2\x80\x9c[n]otwithstanding any other provision of\nlaw\xe2\x80\x9d and \xe2\x80\x9con such terms and conditions as [the President] may determine.\xe2\x80\x9d3\nIndeed, \xc2\xa7 2291 (i) of Title 22 defines the term \xe2\x80\x9cUnited States assistance\xe2\x80\x9d\nexplicitly to include military assistance.4\nFinally, the language of the Mansfield Amendment itself makes clear that\nCongress contemplated the provision of military assistance to foreign narcotics\ncontrol efforts. The Mansfield Amendment\xe2\x80\x99s prohibition on participation in\nany \xe2\x80\x9cdirect police arrest action\xe2\x80\x9d applies to any \xe2\x80\x9cofficer or employee\xe2\x80\x9d of the\nUnited States, which is defined under the Foreign Assistance Act to include\n\xe2\x80\x9ccivilian personnel and members of the Armed Forces of the United States\nGovernment.\xe2\x80\x9d Id. \xc2\xa7 2403(j). Moreover, the Mansfield Amendment expressly\n2 For exam ple, 22 U .S.C . \xc2\xa7 2382(b) instructs the C hief o f the United States Diplomatic M ission in each\ncountry to m ake sure that the recom m endations o f other U nited States representatives \xe2\x80\x9cpertaining to military\nassistance (including civic action) and m ilitary education and training program s are coordinated with\npolitical and econom ic considerations." See also id \xc2\xa7 2403(k).\n3 Prior to 1983, \xc2\xa7 2291(a) o f Title 22 allo w ed the President to \xe2\x80\x9csuspend . . . military assistance furnished\nunder this chapter or any other A ct\xe2\x80\x9d to any co u n try if the President \xe2\x80\x9cdeterm ines that the governm ent o f such\ncountry has failed to take steps to prevent\xe2\x80\x9d drugs \xe2\x80\x9cproduced o r processed\xe2\x80\x9d in that country or \xe2\x80\x9ctransported\nthrough such co u n try " from entering the U n ited States. (E m phasis added). Because the term \xe2\x80\x9cthis chapter"\nincludes a host o f provisions authorizing fo reig n military assistance w holly unrelated to foreign anti-drug\na ctivities, the pre-1983 reference in \xc2\xa7 22 9 1 (a) to \xe2\x80\x9cm ilitary assistance" cannot be read as a dispositive\nindication that C ongress intended \xc2\xa7 2291(a) to authorize the provision o f American m ilitary assistance to\nforeign anti-drug efforts. C o n g ress\xe2\x80\x99 reference in the pre-1983 version o f \xc2\xa7 2291(a) to \xe2\x80\x9ceconom ic or military\nassistan ce," how ever, provides a strong ind icatio n that C ongress knew how to distinguish among different\ntypes o f assistance. It is thus difficult to e sc a p e the conclusion that C ongress\xe2\x80\x99 unqualified use o f the term\n\xe2\x80\x9cassistan ce\xe2\x80\x9d was intended to co v erall form s o f assistance, including m ilitary assistance. In 1983, \xc2\xa7 2291(a)\nw as am ended to separate the provisions d ealin g with the P resid en t\xe2\x80\x99s power to suspend assistance to countries\nth at do not take adequate steps to stem the illeg al flow o f narcotics to the U nited States. Pub L. No. 98-164,\nT itle X, \xc2\xa7 1003, 97 Stat. 1053 (1983);\n2 2 U.S.C. \xc2\xa7 2291(h).\n4 S ection 2291 (i)(4 ) o f T itle 22 defines th e term \xe2\x80\x9cU nited States assistance\xe2\x80\x9d to cover all forms o f military\nassistan ce provided under the Foreign A ssistance Act (w ith certain exceptions not relevant to this point,\nincludin g an exception fo r \xe2\x80\x9c international n arco tics control assistance\xe2\x80\x9d).\n\n124\n\n\x0cexcludes from its coverage \xe2\x80\x9cactivities of the United States Armed Forces in\ncarrying out their responsibilities under the applicable Status of Forces ar\xc2\xad\nrangements.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 2291(c)(1). By implication, the use of United States\narmed forces personnel for activities other than Status of Forces arrangements5\nare thus covered by the Mansfield Amendment, and hence also within the\npositive authority granted to the President under \xc2\xa7 2291(a).\nBecause the language of \xc2\xa7 2291(a) contains no limitation on the type of\nassistance which the President can furnish to foreign governments to assist in\ntheir anti-drug activities, and because a broad reading of this authority is\nsupported by the Mansfield Amendment and by other provisions of the Foreign\nAssistance Act, we conclude that the President has authority under the Act to\nfurnish military assistance to foreign governments for such purposes.7 The\nprimary limitation on this authority is the Mansfield Amendment, to which we\nnow turn.\n5 Status o f Forces Agreem ents (SOFA s) are treaties that prescribe the conditions and term s that control the\nstatus o f forces sent by one State into the territory o f another State. In particular, SOFAs avoid jurisdictional\nclashes w henever the m ilitary personnel o f one country, assigned to peacetim e duty w ithin another country,\ncom m it crim inal acts. See, e.g.. A greem ent Between the Parties to the N orth A tlantic T reaty R egarding the\nStatus o f T heir Forces, June 19, 1 9 5 1 .4 U .S .T . 1792, T.I.A .S. No. 2846. Thus, it makes sense that C ongress\nwould preclude such agreem ents from the scope o f the M ansfield Amendm ent to allow the United States\nm ilitary to enforce U nited States (and perhaps foreign) drug law s, including arrests, against its own personnel\nserving a tour o f duty in a foreign country.\n6 There may be difficult appropriations questions tied to the use of any particular authority. A ssistance\nprovided under \xc2\xa7 2291(a) appears to be lim ited to funds authorized by C ongress specifically for that foreign\nnarcotics assistance program. Congress authorized appropriations o f $57,529,000 for each o f 1986 and 1987\n\xe2\x80\x9c [t]o carry out the purposes o f \xc2\xa7 481.\xe2\x80\x9d See Pub. L. No. 9 9 -8 3 , T itle VI, \xc2\xa7 602, 99 Stat. 228 (Aug. 8, 1985)\n(codified at 22 U .S.C \xc2\xa7 2291a). Som e lim ited funds from the M ilitary A ssistance Program (M AP) can be\nused to equip aircraft used for anti-drug operations under \xc2\xa7 2291(a), but additional lim itations in the form o f\nnotification o f Congressional com m ittees are attached to the use o f these funds. Pub. L No. 9 9 -8 3 ,9 9 Stat. at\n611 (codified at 22 U.S.C \xc2\xa7 2 3 1 1 ). C ongress has placed other lim itations on the use o f the narcotics\nassistance funds provided under \xc2\xa7 2291(a). C ongress provided that appropriations m ade to carry out the\npurposes o f \xc2\xa7 2291(a) \xe2\x80\x9cshall not be made available for the procurem ent o f weapons o r am m unition.\xe2\x80\x9d 22\nU.S.C. \xc2\xa7 2291b. The foreign narcotics assistance program developed under the authority o f \xc2\xa7 2291(a) is\nadm inistered by the Secretary o f State. Exec. Order. No. 12163, 44 Fed. Reg. 56678 (1979).\n7 A uthority to use U nited States m ilitary resources to assist in foreign anti-drug activities may be found in\nother federal statutes as well. For exam ple, 10 U.S.C. \xc2\xa7 374(c) provides in part that \xe2\x80\x9c [i]n an em ergency\ncircum stance\xe2\x80\x9d U nited States m ilitary equipm ent, and personnel to operate and maintain it, \xe2\x80\x9c may be used\noutside the . . U nited S ta te s . . . as a base o f operations by Federal law enforcem ent o fficials to facilitate the\nenforcem ent o f [U nited States narcotics laws] and to transport such law enforcem ent officials in connection\nwith such operations.\xe2\x80\x9d This statute on its face contains a num ber o f lim itations on the provision o f U nited\nStates m ilitary assistance that do not apply to aid provided under \xc2\xa7 2291(a). For exam ple, under \xc2\xa7 2291(a)\nU nited States m ilitary assistance may be provided in the absence o f an \xe2\x80\x9cem ergency circum stance\xe2\x80\x9d to facilitate\nthe enforcem ent o f foreign anti-drug laws, and it need not be to lim ited to use as a base o f operations for\nfederal law enforcem ent officials. In addition. United States military personnel furnished under 10 U .S.C .\n\xc2\xa7 374(c) are prohibited from direct participation \xe2\x80\x9cin an interdiction o f a vessel or aircraft, a search and\nseizure, arrest, o r other sim ilar activity unless participation in such activity by such [personnel] is otherw ise\nauthorized by law .\xe2\x80\x9d Id. \xc2\xa7 375.\nU nder 21 U .S.C. \xc2\xa7 873(b), the A ttorney G eneral is authorized to call on other federal agencies to furnish\nassistance in carrying out his responsibility to enforce U nited States narcotics laws. This provision allow s the\nA ttorney G eneral to request assistance if that assistance is w ithin the otherw ise authorized capacity o f the\nassisting agency. This provision, accordingly, does not authorize the A ttorney General to request, nor a\nresponding agency to provide, assistance in the enforcem ent o f foreign anti-drug law s. This O ffice has\nContinued\n\n125\n\n\x0cM. The Mansfield Amendment\nThe Mansfield Amendment forbids United States officers and employees\nfrom \xe2\x80\x9cengaging] or participating] in any direct police arrest action in any\nforeign country with respect to narcotics control efforts.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 2291(c)(1).\nThis statute was amended in 1985 to make clear that United States officers and\nemployees may be present during such direct police arrest actions, so long as\nthe Secretary of State and the government of the foreign country agree to such\npresence. Id. \xc2\xa7 2291(c)(2).8 Determining the nature and scope of the Mansfield\nAmendment\xe2\x80\x99s limitation on United States assistance to foreign anti-drug ac\xc2\xad\ntivities thus hinges on the meaning of the term \xe2\x80\x9cdirect police arrest action.\xe2\x80\x9d9\nThe use of the term \xe2\x80\x9carrest a c t i o n rather than simply \xe2\x80\x9carrest,\xe2\x80\x9d suggests that\nCongress intended to bar more than just participation in an actual arrest by\nforeign law enforcement officers. Congress\xe2\x80\x99 use of the modifier \xe2\x80\x9cdirect,\xe2\x80\x9d\nhowever, suggests that it intended to prohibit only conduct closely related, in\ntime and place, to an actual arrest. The language of the Mansfield Amendment\nthus suggests that Congress intended to include within the Amendment\xe2\x80\x99s\nprohibition more than just the arrest of suspects, but did not intend to include\nconduct, such as the planning and preparation for the law enforcement opera\xc2\xad\ntion, that is not closely related to arrests. The Amendment\xe2\x80\x99s peculiar linguistic\nformulation \xe2\x80\x94 \xe2\x80\x9cdirect police arrest action\xe2\x80\x9d \xe2\x80\x94 does not on its face clearly\nidentify the line between prohibited and permissible conduct.\n7 ( . . . continued)\npreviously suggested th at law enforcement operations conducted with assistance provided under \xc2\xa7 873(b)\nm ust foreseeably lead to prosecutions u n d e r U nited States narcotics law s. See M emorandum to Jam es I.\nK napp, D eputy A ssistant A ttorney G eneral, C rim inal D ivision from L arry L. Simms, Deputy Assistant\nA ttorney G eneral, O ffice o f Legal Counsel (D ec. 18, 1984).\nA n additional positive source of authority to provide U nited States m ilitary resources to assist foreign\ngovernm ents in th e ir anti-drug activities is \xc2\xa7 22 U.S.C. \xc2\xa7 2311 (\xc2\xa7 503 o f the Foreign A ssistance Act). That\nsection authorizes the President \xe2\x80\x9cto furnish m ilitary assistance, on such term s and conditions as he may\nd eterm ine, to any friendly country . . . the a ssistin g o f w hich th e President finds will strengthen the security\no f the U nited S tates and prom ote world peace . . . by . . . assigning or detailing members o f the Armed Forces\no f the U nited States and o th er personnel o f th e D epartm ent o f D efense to perform duties o f a non-combatant\nn ature.\xe2\x80\x9d T his provision is administered by th e State D epartm ent, and it is our understanding that the State\nD epartm ent does n o t read \xc2\xa7 2311 to authorize the provision o f m ilitary assistance for purposes of foreign drug\ne nforcem ent activ ities unless, perhaps, those activities are conducted by foreign military forces.\n8 T his O ffice has been asked whether an \xe2\x80\x9c agreem ent to agree\xe2\x80\x9d to specific future operations satisfies the\nterm s o f th e 1985 am endm ent to the M ansfield A mendment. T h is am endm ent allows U nited States officers to\nbe present d uring arrest actions when the fo reig n governm ent agrees, but it remains true that no officer may\nengage or participate in any direct police arrest action. T he legislative history does not provide any\nexplan atio n o f the type o f agreem ent required by the 1985 am endm ent. In the absence o f further guidance, we\nassum e from the language o f the am endm ent that C ongress meant to vest substantial discretion in the\nSecretary o f S tate to develop such agreem ents. Thus it appears that oral agreem ents, for exam ple, would\nsatisfy th e requirem ents o f the amendment. Sim ilarly, w e assume that reports to Congress under the\nam endm ent m ay include notifying key com m ittees that such agreem ents have been reached.\n9 T he requirem ent that the direct arrest a ctio n relate to \xe2\x80\x9c narcotics control efforts\xe2\x80\x9d raises the question\nw heth er the M ansfield A m endm ent would ap p ly to individual arrests since a single arrest m ight not be seen as\np art o f a \xe2\x80\x9cnarcotics control effo rt.\xe2\x80\x9d It appears how ever, th a t an individual arrest, even though it m ight not\nnecessarily relate to broader d rug control e ffo rts, is plainly w ithin the A m endm ent\xe2\x80\x99s prohibition on participa\xc2\xad\ntio n in any \xe2\x80\x9cdirect p olice arrest action.\xe2\x80\x9d The M ansfield A m endm ent does not apply to arrest actions \xe2\x80\x94 o r any\no th e r law enforcem ent action \xe2\x80\x94 not related to narcotics control efforts.\n\n126\n\n\x0cThe legislative history of the Amendment provides useful insights. The\nMansfield Amendment was proposed by Senator Mansfield after he had visited\nSoutheast Asia in 1975 and had learned of the direct involvement of Drug\nEnforcement Administration (DEA) agents in Burmese and Thai anti-drug\noperations. Senator Mansfield was particularly critical of a \xe2\x80\x9cjoint raid of an\nopium refinery\xe2\x80\x9d carried out by United States and Thai narcotics agents. See\nReport by Senator Mansfield, \xe2\x80\x9cWinds of Change: Evolving Relations and\nInterests in Southeast Asia,\xe2\x80\x9d S. Rep. No. 382-38,94th Cong., 1st Sess. 9 (Oct.\n1975).10 The origin of Senator Mansfield\xe2\x80\x99s particular concern in proposing the\nMansfield Amendment \xe2\x80\x94 joint drug raids \xe2\x80\x94 suggests the framework for\nconstruing the meaning of \xe2\x80\x9cdirect police arrest actions.\xe2\x80\x9d\nThe Amendment as originally introduced provided that no United States\nofficer or employee \xe2\x80\x9cmay engage in any police action in any foreign country\nwith respect to narcotics control efforts.\xe2\x80\x9d 122 Cong. Rec. 2592 (1976). This\nlanguage is both narrower and broader than the language eventually adopted. It\nis narrower in that it covers only officers who \xe2\x80\x9cengage\xe2\x80\x9d in certain actions,\nrather than those who \xe2\x80\x9cengage or participate.\xe2\x80\x9d It is broader because it covers all\n\xe2\x80\x9cpolice actions\xe2\x80\x9d and not just \xe2\x80\x9cdirect police arrest actions.\xe2\x80\x9d11\nIn discussing the proposed Amendment on the Senate floor, Senator Mansfield\nemphasized his concern with \xe2\x80\x9cU.S. involvement in local drug raids.\xe2\x80\x9d 122\nCong. Rec. 2592 (1976). He observed that United States agents \xe2\x80\x9cnow partici\xc2\xad\npate in raids and other such activities alongside local police officials,\xe2\x80\x9d and\nexplained that his proposal would \xe2\x80\x9cput a limit on the extent to which U.S.\npersonnel can participate\xe2\x80\x9d in such actions. Id.\nSenator Percy, during debate on the initial version of the Amendment, noted\nthat it \xe2\x80\x9cis designed solely to prevent American involvement where it is unnec\xc2\xad\nessary to our own domestic drug law enforcement programs and where friction\nwith foreign governments is likely to result.\xe2\x80\x9d 122 Cong. Rec. 2591 (1976). In\nparticular, according to Senator Percy, the Amendment \xe2\x80\x9cwould prohibit United\nStates narcotics agents operating abroad, whether by themselves or as members\nof teams involving the agents . . . of foreign governments, from engaging in\nactions where it is reasonably foreseeable that force will be used or an arrest of\nforeign nationals made.\xe2\x80\x9d Id.\nThe legislative comments on the final version of the Amendment mirrored\nthe concerns expressed by Senators Percy and Mansfield.12 The Report by the\nHouse International Relations Committee on the final version noted that the\nprovision was intended \xe2\x80\x9cto insure U.S. narcotics control efforts abroad are\nconducted in such a manner as to avoid involvement by U.S. personnel in\n10 Senator M ansfield considered local drug enforcem ent a \xe2\x80\x9cfunction o f indigenous governm ent.\'\' See R eport\nby Senator M ansfield, \xe2\x80\x9cW inds o f Change* Evolving R elations and Interests in Southeast A sia," S. R ep. No.\n382-38, 94th Cong., 1st Sess. (1975).\n11 The A mendment as originally introduced w as passed as part o f the International Security A ssistance and\nArms Export Control Act o f 1976, but this bill was vetoed by the President for reasons unrelated to the\nM ansfield Amendment.\n12 There is no indication in the legislative history that the shift in language between the initial and final\nversions o f the Amendm ent reflected a change in the intentions o f the m easure\xe2\x80\x99s drafters and sponsors.\n\n127\n\n\x0cforeign police operations where violence or the use of force could reasonably\nbe anticipated.\xe2\x80\x9d H.R. Rep. No. 1144, 94th Cong., 2d Sess. 59 (1976).13\nJoint drug raids provide the archetypical violation of Congress\xe2\x80\x99 desire that\nUnited States agents not participate in foreign law enforcement operations in\nwhich violence or the use of force is likely to occur.14 Identifying participation\nin joint drug raids as the paradigm forbidden behavior, however, does not\ncomplete the necessary inquiry. It is still necessary to identify the point at\nwhich such raids, or \xe2\x80\x9cdirect police arrest actions,\xe2\x80\x9d begin and end. Here, too, the\nlegislative history provides valuable assistance.15\nThe House International Relations Committee and the Senate Foreign Rela\xc2\xad\ntions Committee both defined \xe2\x80\x9carrest actions\xe2\x80\x9d to mean \xe2\x80\x9cany police action\nwhich, under normal circumstances, would involve the arrest of individuals\nwhether or not arrests, in fact, are actually made.\xe2\x80\x9d H.R. Rep. No. 1144, supra,\nat 55; S. Rep. No. 876,94th Cong., 2d Sess. 61 (1976). See also 122 Cong. Rec.\n2591 (1976) (remarks of Sen. Percy). This definition of \xe2\x80\x9carrest action\xe2\x80\x9d makes\nclear Congress\xe2\x80\x99 intent to include more than the actual arrest of foreign nation\xc2\xad\nals, but not to include activities which under normal circumstances would not\ninvolve such arrests. In the context of a drug raid, for example, the Mansfield\nAmendment would preclude the participation (though not presence)16of United\nStates officers only in the raid itself, for only the actual raid would, under\nnormal circumstances, involve arrests or the probable use of force. The Mansfield\nAmendment would not prohibit United States participation in any activity\noccurring before or after the raid, such as planning and preparing for the raid, or\npre-positioning (including transportation) of foreign officers in the general\nvicinity of the raid target, because arrests do not normally occur during these\n13 S im ilar lines w ere draw n by the S enate Foreign R elations Com m ittee on the initial version o f the\nA m endm ent. See S. Rep. No. 605, 94th C ong., 2d Sess 55 (1976), reprinted in part in 122 Cong. Rec. 2592\n(1976).\n14 C ongress evidently believed that operations in which, under normal circum stances, arrests would be\nlikely w ere also operations w here violence o r the use o f force w as likely.\n15 S im ilar boundaries on the participation o f m ilitary personnel have been drawn for enforcem ent of\ndom estic law un d er the Posse Comitatus A ct. The Posse C om itatus Act, 18 U.S.C. \xc2\xa7 1385, a Reconstruction\nera provision th a t w as intended to prevent th e participation o f U nited States arm ed forces in the enforcem ent\no f dom estic law , has been construed to p erm it civilian law enforcem ent agencies to use military equipm ent or\nreceive training, and to perm it military o bservers, but not to p erm it the use o f military m anpow er in an active\nlaw enforcement role. In United States v. Red Feather, 392 F. Supp. 916,925 (D.S.D. 1974), the court explained:\nA ctivities w hich constitute an activ e role in direct law enforcem ent are: arrest; seizure of\nevidence; search o f a person, search o f a building; investigation o f a crim e, interviewing\nw itnesses; p u rsu it o f an escaped c iv ilian prisoner; search o f an area fo r a suspect and other like\nactivities. A ctivities w hich constitute a passive role w hich might indirectly aid law enforcement\nare: m ere presence o f military personnel under orders to report on the necessity for military\nintervention; preparation o f contingency plans to be used if m ilitary intervention is ordered;\nadvice o r recom m endations given to civilian law enforcem ent officers by military personnel on\ntactics o r logistics; presence o f m ilitary personnel to deliver m ilitary material, equipm ent or\nsupplies, to train local law enforcem ent officials on the proper use and care o f such m aterial or\nequipm ent, and to m aintain such m aterial o r equipm ent; aerial photographic reconnaissance\nflig h ts and o th er like activities.\n16 A s noted above, a 1985 amendment to the M ansfield A m endm ent specifically states that its prohibition\nshould not be construed to forbid U nited States officers from being \xe2\x80\x9cpresent during direct police arrest\naction\xe2\x80\x9d in a foreign country if the Secretary o f State and governm ent o f the foreign country reach an\nagreem ent to th is effect. See Pub. L. No. 9 9 -8 3 , \xc2\xa7 6 0 5 ,9 9 Stat. 190,229 (codified at 22 U.S.C. \xc2\xa7 2291(c)(2)).\n\n128\n\n\x0cactivities. Nor would supplying equipment, training, and intelligence for the\nraid violate the intent of Congress.17 Similarly, participation of United States\nofficers in foreign operations aimed at eradicating drug producing crops or\ndrug processing facilities would not come within the Mansfield Amendment\xe2\x80\x99s\nprohibition if arrests are not likely to occur.\nConclusion\nIn enacting the Mansfield Amendment, Congress was animated by concern\nthat United States officers not participate directly in joint drug raids with\nforeign authorities. Congress addressed this concern by prohibiting United\nStates officers from personally participating, except as observers, in any activ\xc2\xad\nity which, under normal circumstances, would be likely to lead to the arrest of\nforeign nationals.18 The Amendment was not intended to prohibit participation\nof United States officers in activities occurring before or after any such \xe2\x80\x9carrest\naction.\xe2\x80\x9d The application of these principles to specific cases may raise difficult\nquestions.\nC h a r l e s J. C o o p e r\nAssistant Attorney General\nOffice o f Legal Counsel\n\n17 C ongress made clear that the role o f the foreign governm ent in requesting United States assistance does\nnot alter the boundaries on the behavior o f United States officers in drug raids. Senator Percy explained the\nA m endm ent\'s \xe2\x80\x9cbasic m eaning\xe2\x80\x9d as preventing involvem ent in actions in which force would result \xe2\x80\x9c whether or\nnot the host governm ent in question has requested the participation o f A m erican agents.\xe2\x80\x9d 122 Cong. Rec.\n2S92 (1976). The Senate Foreign Relations Com m ittee Report on the original version noted that it w as\nintended to prohibit involvem ent in actions involving the arrest o f foreign nationals \xe2\x80\x9cw hether unilaterally\n(acting on th eir ow n) o r as mem bers o f teams involving agents o r officials o f other foreign governm ents." Id.\',\nsee also S. Rep. No. 605, 94th Cong., 2d Sess. (1976).\n18 The D epartm ent has previously considered efforts to repeal or amend the M ansfield Amendm ent to\nremove its restn ctio n on U nited States anti-drug activities abroad. The P resident\'s C om m ission on O rganized\nCrim e has recom m ended that the M ansfield A mendment \xe2\x80\x9cbe repealed in its entirety.\xe2\x80\x9d Presidential Com m is\xc2\xad\nsion on O rganized Crim e, America\'s Habits, Drug Abuse, Drug Trafficking, and Organized Crime 468\n(M arch 1986).\n\n129\n\n\x0c'


b'Applicability o f the Federal Advisory Committee Act to\nPresidential Task Force on Market Mechanisms\nThe Presidential T ask Force on M arket M echanism s is exem pt from the requirem ents o f the Federal\nAdvisory C om m ittee Act.\n\nJanuary 5, 1988\nM\n\nem o ran d u m\n\nO p in io n\n\nS e n io r A s s o c ia t e C o u n s e l\n\nfor th e\n\nto th e\n\nP r e s id e n t\n\nIntroduction and Summary\nThis memorandum updates our submission to you of October 29, 1987, in\nwhich we concluded that a proposed commission charged with studying volatil\xc2\xad\nity in securities markets would be exempt from the requirements of the Federal\nAdvisory Committee Act (\xe2\x80\x9cFACA\xe2\x80\x9d). You have requested that we update our\nmemorandum in light of the specific provisions of Executive Order No. 12614,\nissued November 5, 1987, which set forth the purpose and functions of the Pres\xc2\xad\nidential Task Force on Market Mechanisms (the \xe2\x80\x9cTask Force\xe2\x80\x9d). Specifically, you\nhave asked whether the Task Force would be exempt from the requirements im\xc2\xad\nposed by FACA, in light of 5 U.S.C. app. \xc2\xa7 4(b), which provides that FACA does\nnot apply to advisory committees \xe2\x80\x9cestablished or utilized by\xe2\x80\x9d the Federal Reserve\nSystem.\nOur analysis is based on the following description of the Task Force contained\nin Executive Order No. 12614:\n(1) The Task Force \xe2\x80\x9cshall be composed of five persons appointed\nby the President,\xe2\x80\x9d one of whom has been designated as chair\xc2\xad\nman;\n(2) the Task Force \xe2\x80\x9cshall review relevant analyses of the current\nand long-term financial condition of the Nation\xe2\x80\x99s securities\nmarkets, identify problems that may threaten the short-term\nliquidity or long-term solvency of such markets, and analyze\npotential solutions to such problems that will both assure the\ncontinued smooth functioning of free, fair, and competitive\nsecurities markets and maintain investor confidence in such\nmarkets;\xe2\x80\x9d\n(3) the Task Force \xe2\x80\x9cshall provide appropriate recommendations\nto the President, to the Secretary of the Treasury, and to the\nChairman of the Board of Governors of the Federal Reserve\nSystem;\xe2\x80\x9d and\n(4) \xe2\x80\x9cto the extent permitted by law and subject to the availability\nof funds therefor, the Executive Office of the President and\n11\n\n\x0cthe Department of the Treasury shall provide the Task Force\nwith such administrative services, funds, facilities, staff, and\nother support service as may be necessary for the performance\nof its functions.\xe2\x80\x9d\nGiven the composition, purpose, and functions of the Task Force as described in\nthe Executive Order, and based upon our understanding that its recommendations\nto the Federal Reserve System would deal with matters within the scope of the\nFederal Reserve System\xe2\x80\x99s responsibilities, we conclude that the Task Force is ex\xc2\xad\nempt from FACA.\nAnalysis\nW e begin, of course, with an examination o f the language of the statute itself.1\nFACA generally applies \xe2\x80\x9cto each advisory committee,\xe2\x80\x9d except to the extent that\nany Act of Congress specifies to the contrary. 5 U.S.C. app. \xc2\xa7 4(a). This general\nrule is, however, subject to an express limitation in FACA itself. Section 4(b) of\nFACA, 5 U.S.C. app. \xc2\xa7 4(b), states that \xe2\x80\x9c[n]othing in this Act shall be construed\nto apply to any advisory committee established or utilized by (1) the Central In\xc2\xad\ntelligence Agency; or (2) the Federal Reserve System.\xe2\x80\x9d It follows that an \xe2\x80\x9cadvi\xc2\xad\nsory committee\xe2\x80\x9d that is either \xe2\x80\x9cestablished or utilized by\xe2\x80\x9d the Federal Reserve\nSystem (or the Central Intelligence Agency) is exempt from FACA\xe2\x80\x99s require\xc2\xad\nments.\nSince the Task Force is an \xe2\x80\x9cadvisory committee\xe2\x80\x9d2 established by the President,\nthe key question is whether it is \xe2\x80\x9cutilized by\xe2\x80\x9d the Federal Reserve System. Inas\xc2\xad\nmuch as the Task Force will report to the chairman of the Federal Reserve Board\non matters within the Federal Reserve System\xe2\x80\x99s responsibilities (margin re\xc2\xad\nquirements, broker loans, and the stability of the banking system), the Task Force\nis \xe2\x80\x9cutilized by\xe2\x80\x9d the Federal Reserve System, within the plain meaning of that\nterm.3 Thus, the Task Force appears to be exempt from FACA\xe2\x80\x99s requirements.\nMoreover, the fact that the Task Force also reports to the Secretary of the Trea\xc2\xad\nsury and the President in no way alters this conclusion. FACA does not require\nthat, in order to be exempt, an advisory committee must be utilized solely by the\nFederal Reserve System (or the Central Intelligence Agency). The words of the\n1 See, e g.. Touche Ross & Co v. Redington, 442 U S. 560, 568 (1979); Greyhound Corp v Ml. Hood Stages,\nInc , 437 U.S 322 ,3 3 0 (1 9 7 8 ).\n2 FACA states, in pertinent part, that an \xe2\x80\x9cadvisory committee\xe2\x80\x9d is \xe2\x80\x9cany committee, board, commission, council,\n. . . o r any . . . subgroup th e re o f. . . which is (A ) established by statute or reorganization plan, or (B) established or\nutilized by the President, or (C) established o r utilized by one o r more agencies, in the interest of obtaining advice\nor recommendations for the President or one o r more agencies or officers o f the Federal Government.\xe2\x80\x9d 5 U.S.C.\napp. \xc2\xa7 3(2). The Task Force, which is established by the President and charged with making recommendations to\nthe Chairman o f the Federal Reserve System (as well as to the Secretary of the Treasury and the President), clearly\nappears to qualify as an \xe2\x80\x9cadvisory committee\xe2\x80\x9d within the meaning o f FACA.\n3 R egulations promulgated pursuant to FA C A state that an advisory committee is \xe2\x80\x9cutilized\xe2\x80\x9d by a federal agency\nif it is used \xe2\x80\x9cas a preferred source from which to obtain advice o r recommendations on a specific issue or policy\nwithin the scope o f [federal officials\xe2\x80\x99] responsibilities." 41 C F.R. \xc2\xa7 101-6.1003 (1987). The Task Force clearly\nmeets this description with respect to the Federal Reserve System.\n\n12\n\n\x0cstatutory exemption therefore cover those advisory committees, such as the Task\nForce, that are utilized by the Federal Reserve System and other governmental\nentities.4\nThe limited legislative history bearing upon section 4(b) in no way undermines\nthe conclusion, drawn from that provision\xe2\x80\x99s plain language, that section 4(b) ex\xc2\xad\nempts the Task Force from FACA\xe2\x80\x99s requirements. That legislative history em \xc2\xad\nphasized Congress\xe2\x80\x99 concern with protecting the confidentiality of the delibera\xc2\xad\ntions carried out by groups advising the Federal Reserve Board, given the possible\nnegative implications for our financial system should those deliberations become\npublic knowledge.5 This policy concern applies fully to the deliberations of the\nTask Force. The impact of securities market volatility on the broker-age and bank\xc2\xad\ning systems \xe2\x80\x94 an issue that the Task Force is charged with studying \xe2\x80\x94 has sig\xc2\xad\nnificant implications for financial stability.6\nConclusion\nFor the foregoing reasons, we conclude that, provided the Task Force is uti\xc2\xad\nlized in the manner described above, it is exempt from the requirements of FACA.\nC h a r l e s J. C o o p e r\nAssistant Attorney General\nOffice o f Legal Counsel\n\n4 Nor are general requirements of FACA circumvented by giving full scope to the statutory exception contained\nin section 4(b) Because advisory committees must address issues relevant to the Federal Reserve System or the\nCentral Intelligence Agency to come with the ambit of this exception, only a relatively few committees will qual\xc2\xad\nify for the exception\n5 The clause that became section 4(b) was originally introduced as an amendment by Senator Javits, during the\nfloor debate that preceded passage o f the Senate version o f FACA. That preliminary version o f section 4(b) stated\nthat \xe2\x80\x9cthe provisions o f this act [FACA1 shall not apply to any advisory committee established for or utilized by the\nFederal Reserve System.\xe2\x80\x9d 118 Cong. Rec. 30,273 (1972). (The final version of section 4(b), which also made ref\xc2\xad\nerence to the Central Intelligence Agency, was adopted by the joint House-Senate Conference Committee on FACA.)\nSenator Javits introduced the amendment in order to shield the \xe2\x80\x9cFederal Reserve Advisory Council\xe2\x80\x9d (\xe2\x80\x9cFAC\xe2\x80\x9d) from\nFACA\xe2\x80\x99s strictures According to Senator Javits, \xe2\x80\x9ceveryone knows the speculation, financial, and otherwise, which\ngoes on around the world respecting the Federal Reserve System\xe2\x80\x99s operations. In order to have an advisory coun\xc2\xad\ncil at all, which would be very useful to them, they simply have to ask to be exempted from the provisions of this\nbill.\xe2\x80\x9d Id Senator Javits cited a letter from Arthur F. Bums, Chairman o f the Federal Reserve Board, which stressed\nthat the draft FACA provisions regarding public disclosure o f FAC proceedings could \xe2\x80\x9cprove troublesome. Since\nthe FAC\xe2\x80\x99s discussions cover a number o f subjects such as monetary policy, the international payments system, and\nliquidity conditions in the banking system, premature publication o f views candidly expressed at FAC meetings\ncould prove harmful Discussion at these meetings is now full and frank and would be seriously inhibited if the\nmeetings were open to the public . . or even if minutes o f the meetings were published . . . . \xe2\x80\x9d Id. Consistent with\nthe concerns identified by Senator Javits and Chairman Bums, Senator M etcalf added that \xe2\x80\x9cthere are important con\xc2\xad\nsiderations in [FACA] that are clearly not involved and should not be a part o f the considerations as to the Federal\nReserve B o ard .. . . [M]any o f the propositions that are analyzed by the [Federal Reserve] [B]oard need to have se\xc2\xad\ncrecy of consideration and secrecy as to their activities.\xe2\x80\x9d Id\n6 Finally, there is no suggestion in the legislative history that the rationale underlying the FACA exemption\nwould be undermined if a group advising the Federal Reserve Board also were directed to advise another federal\nagency, such as the Department o f the Treasury.\n\n13\n\n\x0c'


b'July 5, 1979\n\n79-49\n\nMEMORANDUM OPINION FOR THE ACTING\nDIRECTOR, EXECUTIVE OFFICE OF U.S.\nATTORNEYS\nEthics in Government Act\xe2\x80\x94Financial Report\xe2\x80\x94\nApplication to Spouses and Children of Reporting\nOfficial (5 U .S.C .A . App. I)\n\nThis is in response to your memorandum requesting our opinion on a\nquestion raised by a U.S. Attorney regarding the requirement under the\nEthics in Government Act that the reporting official include information\npertaining to his spouse and dependent children.\nThe requirement for reporting of spouses\xe2\x80\x99 and children\xe2\x80\x99s interests ap\xc2\xad\npears in \xc2\xa7 202(e)(1) of the Ethics in Government Act 5 U.S.C.A. App. I,\n1980 Supp. which provides in pertinent part:\n(e)(1) Except as provided in the last sentence of this\nparagraph, each report required by subsection (a), (b), or (c) of\nthis section shall also contain information listed in paragraphs\n(1) through (5) o f subsection (a) respecting the spouse or depend\xc2\xad\nent child of the reporting individual as follows:\n* *\n\n*\n\nEach report referred to in subsection (b) of this section shall,\nwith respect to the spouse and dependent child of the reporting\nindividual, only contain information listed in paragraphs (1), (3),\nand (4) o f subsection (a), as specified in this paragraph.\nThe U.S. Attorney suggests that the reference to \xe2\x80\x9c subsection (a), (b), or\n(c)\xe2\x80\x9d at the beginning of \xc2\xa7 202(e)(1) refers not to those subsections of \xc2\xa7 202,\nbut to subsections (a), (b) and (c) of \xc2\xa7 201.\nThe U.S. Attorney bases his suggestion on the fact that \xc2\xa7 201 is cap\xc2\xad\ntioned \xe2\x80\x9c PERSONS REQUIRED TO FILE\xe2\x80\x9d and that \xc2\xa7 202 is captioned\n\xe2\x80\x9c CONTENTS OF REPORTS.\xe2\x80\x9d He notes that \xc2\xa7 202 does not \xe2\x80\x9c require\xe2\x80\x9d\nany reports to be filed. Rather, he says, it merely describes the contents of\nthe reports that are required by \xc2\xa7 201 to be filed by various categories of\npersons. Therefore, he believes the reports that must contain information\n280\n\n\x0cabout spouses and dependent children are those required to be filed by\nsubsections (a), (b) and (c) of \xc2\xa7 201\xe2\x80\x94i.e., by those who assume office, by\nthose who are nominated to office by the President, and by those who\nbecome candidates for the office of President or Vice President. We find\nthis suggestion without merit.\nFirst, the natural reading of \xc2\xa7 202(e)(1), quoted above, is that it refers to\nsubsections (a), (b) and (c) of the same section of which subsection (e) is\nitself a part, namely, \xc2\xa7 202. Ordinarily, when a statute refers to a subpart\nof another section, the number of the other section is also expressly cited.\nMoreover, in \xc2\xa7 202(e)(1), immediately after the reference to reports \xe2\x80\x9c re\xc2\xad\nquired by subsection (a), (b), or (c)\xe2\x80\x9d at issue here, there is a reference to\n\xe2\x80\x9c paragraphs (1) through (5) of subsection (a).\xe2\x80\x9d 1 Subsection (a) of \xc2\xa7 201 is\nnot subdivided into paragraphs, while subsection (a) of \xc2\xa7 202 is. Obvious\xc2\xad\nly, the second reference to \xe2\x80\x9c subsection (a)\xe2\x80\x9d in \xc2\xa7 202(e)(1) must be to\nsubsection (a) of \xc2\xa7 202. Presumably, if Congress had intended a different\nsubsection (a) in the immediately preceding reference, that reference\nwould have been made express.\nSecond, he makes too much of the captions of \xc2\xa7\xc2\xa7 201 and 202. Section\n201 identifies the persons who must file reports, while \xc2\xa7 202 describes the\ntype of report these individuals are required to file. Subsection (a)\ndescribes the full report required to be filed on an annual basis by those\nholding office as of May 15 of each year (i.e., by persons identified in\n\xc2\xa7 201(d)). Subsection (b) of \xc2\xa7 202 describes the more limited report to be\nfiled by persons when they assume office, are nominated to office by the\nPresident, or become candidates for elective office (i.e., by persons iden\xc2\xad\ntified in \xc2\xa7\xc2\xa7 201(a), (b) and (c)). These officials must report their assets,\nliabilities, outside affiliations, and future employment arrangements as of\na given point in time near the date of filing. But they need not reach back\nto an earlier period to report gifts or most income previously received or\nproperty transactions previously engaged in. The last sentence of\n\xc2\xa7 202(e)(1) makes a similar concession with regard to the spouse and\nchildren of a person who files a report \xe2\x80\x9c referred to in subsection (b).M\nFinally, subsection (c) of \xc2\xa7 202 describes the information that must be filed\nby those who leave a covered executive branch position (i.e., persons iden\xc2\xad\ntified in \xc2\xa7 201(e)).\n\n1 The last sentence o f \xc2\xa7 202(e)(1) likewise refers to paragraphs o f \xe2\x80\x9c subsection (a ).\xe2\x80\x9d\n\n281\n\n\x0cAside from this explanation based solely on the statutory language, we\ncan think of no reason why the Congress would have intended to require\nofficials to report information pertaining to their spouses and dependent\nchildren only at the time those officials enter public office and not annu\xc2\xad\nally thereafter or when they leave office. We are aware of nothing in the\nlegislative history of the Act to suggest this purpose.\nLeon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n282\n\n\x0c'


b'March 16, 1978\n\n78-19\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nConstitutional Law\xe2\x80\x94 First Amendment\xe2\x80\x94\nEstablishment Clause\xe2\x80\x94 Nonpublic\nElementary and Secondary Schools\xe2\x80\x94\nTuition\xe2\x80\x94 Tax Credits\n\nYou have asked for our opinion concerning the constitutionality, under the\nEstablishment Clause of the First Amendment, of providing either tax credits or\ngrants for tuition payments to nonpublic elementary and secondary schools.\nYou referred to two specific proposals providing such grants or credits: the\nPackwood-Moynihan bill, S. 2142, which would give limited income tax relief\nin the form of a credit for tuition payments to nonpublic schools; and the\nextension of the Basic Educational Opportunity Grant program to include\nnonpublic elementary and secondary school education.\nIn our opinion, under existing Supreme Court decisions both proposals\nwould violate the First Amendment guarantee against establishment of religion.\nThe controlling decisions on tuition grants and credits for nonpublic elementary\nand secondary education are Committee fo r Public Education v. Nyquist, 413\nU.S. 756 (1973), and Sloan v. Lemon, 413 U.S. 825 (1973), a companion\ncase.\nIn Nyquist, the Court invalidated a New York tuition reimbursement and tax\nrelief plan. The plan provided limited tuition reimbursements to low-income\nfamilies with children attending nonpublic elementary and secondary schools.\nFamilies failing to qualify for tuition reimbursement were allowed tuition tax\ncredits in varying amounts depending upon adjusted gross income. The Court\nfound both facets of the program unconstitutional under the three-part Estab\xc2\xad\nlishment Clause test enunciated in Lemon v. Kurtzman, 403 U .S. 602, 612\n(1971):\nFirst, the statute must have a secular legislative purpose; second, its\nprincipal or primary effect must be one that neither advances nor\ninhibits religion . . .; finally, the statute must not foster \xe2\x80\x9c an excessive\nentanglement with religion.\xe2\x80\x9d [Citations omitted.]\n77\n\n\x0cThe Court acknowledged that the purposes of the State in enacting the\nmeasures\xe2\x80\x94 to preserve a healthy, safe educational environment for all\nschoolchildren, to promote pluralism and diversity in education, and to prevent\nfurther overburdening of the public school system\xe2\x80\x94 were secular and not\ninappropriate legislative goals. It held, however, that the tuition grants and\ncredits failed the second prong of the test because a primary.effect of the plan\nwas to aid religious education. The Court noted additionally that the plan\ncreated the prospect o f politically divisive church-state entanglement. Adoption\nof programs assisting sectarian education would generate ongoing controversy\nalong religious lines over continuing or enlarging available relief.\nIn Sloan, the Court held that a Pennsylvania tuition reimbursement program\nwas constitutionally indistinguishable from the New York program invalidated\nin Nyquist. Since the Pennsylvania program had the effect o f advancing\nreligion, it, too, infringed upon the Establishment Clause guarantee.\nThe Packwood-M oynihan bill provides an income tax credit for tuition\npayments to elementary and secondary schools as well as vocational schools,\ncolleges, and universities.\' The amount o f the credit is 50 percent of tuition up\nto a total of $500 per student. If the credit to which the taxpayer is entitled\nexceeds his tax liability, the difference is refunded to him. We believe that the\ntax relief provided in the bill for tuition payments to nonpublic elementary and\nsecondary schools falls within the scope o f Nyquist.\nAlthough we have considered carefully possible arguments distinguishing\nthe Packwood-M oynihan tax credit from the New York tax relief program\nstruck down by the Supreme Court, we do not believe the differences are of\nconstitutional dim ension. It might be argued that the facially neutral, broadbased tax relief provided in the bill prevents it from having a \xe2\x80\x9c primary effect\xe2\x80\x9d\nof advancing religion. According to that argum ent, aid accruing to nonpublic\nelementary and secondary schools would be only \xe2\x80\x9c incidental\xe2\x80\x9d to an otherwise\nneutral plan, and therefore would be constitutionally permissible under\nNyquist. 413 U .S. at 771, 782 n. 38; Walz v. Tax Commission, 397 U .S. 664\n(1970). A realistic appraisal o f the tax credits proposal, however, indicates that\nit is not so neutral or broad based as it might appear. In analyzing the effect of\nthe tuition tax credit under the Establishment Clause, it is necessary to separate\nthe elementary and secondary school and higher education components of the\nbill.2 Recent Supreme Court decisions have consistently distinguished aid to\ncollege-level institutions from aid to lower-level schools, pointing out that\n\n\'W e u n d e rsta n d th at th e bill as re p o rte d o u t o f the S e n a te F in an ce C o m m itte e w as a m e n d ed in a\nn u m b e r o f w a y s b u t th at th e b a sic tax c re d it p ro v isio n s re m a in u n ch an g e d .\n2W e u n d e rsta n d th at a se v e ra b ility c la u se w as a d d e d to the bill as recen tly re p o rte d out o f the\nS e n a te c o m m itte e .\n\n78\n\n\x0creligiously affiliated institutions at the college level are less often so \xe2\x80\x9c pervasively\nsectarian\xe2\x80\x9d as schools educating younger students and that older students are\ngenerally less impressionable. See, e.g ., Roemer v. Board o f Public Works o f\nMaryland, 426 U.S. 736 (1976); Hunt v. M cNair, 413 U .S. 734 (1973);\nCommittee fo r Public Education v. Nyquist, 413 U .S ., at 111, n. 32; Tilton v.\nRichardson, 403 U .S. 672, 685 (1971).\nOnce the focus is on elementary and secondary school tuition credits alone, it\nis evident that the effect on sectarian education is not merely incidental. Not\nonly would the credits benefit institutions whose role is to emphasize religious\ntraining and beliefs, but they would also benefit sectarian schools in significantly\nlarger numbers than nonsectarian schools. The high percentage of sectarian\nelementary and secondary schools in New York State\xe2\x80\x94 approximately 85\npercent o f all nonpublic schools\xe2\x80\x94 was one factor influencing the C ourt\xe2\x80\x99s\ndecision in Nyquist.\nCurrent statistics on nonpublic schools nationally show that nearly 17 percent\nof the Nation\xe2\x80\x99s elementary and secondary schools are nonpublic. O f that\npercentage, 85 percent are religiously affiliated. U.S. Department of Health,\nEducation, and W elfare, National Center for Education Statistics, Nonpublic\nSchool Statistics, 1966-77. According to the most recent statistics available,\n87.5 percent of nonpublic schools at the elementary level and 70.2 percent o f\nnonpublic schools at the secondary level are sectarian.3 U.S. Department of\nHealth, Education, and W elfare, National Center for Education Statistics,\n\xe2\x80\x9c Statistics of Nonpublic Elementary and Secondary Schools, 1970-71.\xe2\x80\x9d A l\xc2\xad\nthough sectarian secondary schools do not dominate nonpublic education to the\nsame extent as sectarian elementary schools, we believe that their number is\nsufficiently substantial so that no meaningful distinction between credits for\nelementary and secondary schools can be drawn.\nIt might be argued that the availability of credits for public elementary and\nsecondary school tuition under the provisions of the bill would significantly\naffect those statistics. The Court has repeatedly made the point, however, that\nthe actual impact or \xe2\x80\x9c effect\xe2\x80\x9d of the program is the controlling determinant, not\nits hypothetical consequences. The simple fact is that most public schools are\nsupported by State funds, not tuition payments, and there is no evidence of\nwhich we are aware that the structure of State funding is likely to change\nradically as a result of this legislation. Thus, it appears that the tax credits here,\n\nS ta tis tic s sh o w in g the b re a k d o w n o f sch o o ls at th e e le m en ta ry an d sec o n d a ry school levels fo r\nthe 1976-77 a ca d e m ic y e a r h av e not y et b e en c o m p le te d . P relim in ary statistics o n stu d en t\nen ro llm e n t d u rin g 1976-77 are a v a ila b le , h o w e v e r, w h ic h , alth o u g h c o m p ile d usin g a so m ew h a t\nd ifferen t form at th a n e a rlie r s ta tistic s , su g g est th at th e p e rc en tag e s o f n o n p u b lic sch o o ls h av e not\nc h an g e d rad ically o v e r th e last 6 y ears.\n\n79\n\n\x0clike the tax reductions in Nyquist, have a primary effect of benefiting parents of\nchildren attending sectarian, nonpublic schools.4\nThe neutrality argum ent deserves elaboration because it is the most plausible\nbasis for distinguishing the bill from the statute at issue in Nyquist and Sloan.\nThe argument rests primarily on language in Mr. Justice Powell\xe2\x80\x99s opinion for\nthe Court in Nyquist, in which he distinguished Walz v. Tax Commissioner, 397\nU.S. 664 (1970). In Walz, the Court upheld the constitutionality of property tax\nexemptions for churches. The N yquist Court distinguished the earlier case on\nseveral grounds, one o f which was the broad-based and neutral class of\nproperty exempted:\nThe exemption challenged in Walz was not restricted to a class\ncomposed exclusively or even predominantly of religious institu\xc2\xad\ntions. Instead, the exemption covered all property devoted to reli\xc2\xad\ngious, educational, or charitable purposes. As the parties here must\nconcede, tax reductions authorized by this law flow primarily to the\nparents of children attending sectarian, nonpublic schools. Without\nintimating whether this factor alone might have controlling signifi\xc2\xad\ncance in another context in some future case, it should be apparent\nthat in terms of the potential divisiveness of any legislative measure\nthe narrowness o f the benefited class would be an important factor.\n[413 U .S ., at 794]\nAt the end of the above discussion the Court added a footnote referring back\nto a similar point made earlier, which stated:\n[W]e need not decide whether the significantly religious character of\nthe statute\xe2\x80\x99s beneficiaries might differentiate the present case from a\ncase involving some form o f public assistance (e.g., scholarships)\nmade available generally w ithout regard to the sectarian-nonsectarian\nor public-nonpublic nature o f the institution benefited. [413 U .S., at\n783 n. 38]\nAn argument could be made, on the basis of those remarks, that the present\nbill is valid because it would benefit a large, diverse class and would not in its\n4W e sh o u ld e m p h a siz e th a t th e C o u rt in Nyquist m a d e c le a r th a t a law co u ld o ffen d the\nE s ta b lish m en t C la u se e v en if aid to re lig io n w as not the p rim ary effe c t but w as o nly one o f several\nc o n se q u e n c e s o f th a t law . A n a d d itio n a l N ew Y o rk S ta te p ro g ram c o n sid e re d by the C o u rt in\nNyquist p ro v id e d \xe2\x80\x9c m a in te n a n c e a n d re p a ir g r a n ts " to n o n p u b lic sch o o ls, lim itin g those g ra n ts to 50\np e rc e n t o f th e m a in te n a n c e a n d re p a ir c o sts o f p u b lic s ch o o ls. E ven th o u g h it w as c le a r that m ost o f\nth e fu n d s w o u ld b e u sed fo r n o n s e c ta ria n p u rp o s e s, th e C o u rt h e ld the g ra n ts u n c o n stitu tio n a l. T h e\nflaw in th e p ro g ram w as th a t it p ro v id e d n o m ean s o f e x clu d in g S tate fu n d s from ben efitin g\nre lig io n . 4 1 3 U .S ., at 7 7 8 -8 0 . P o ssib ly a c le a re r e x a m p le m a y be fo u n d in the F ederal h ig h er\ne d u ca tio n c o n stru c tio n g ra n ts in v o lv e d in Tilton v. Richardson, supra. In that c ase , ev en th o u g h it\nw as c le a r th at th e c o n stru c te d fa c ilitie s w o u ld be u sed p re d o m in a n tly fo r se c u la r p u rp o se s, the fact\nth at th ey co u ld be u sed fo r s e c ta ria n p u rp o s e s 20 y e a rs a fte r th e ir c o n stru c tio n w as e n o u g h to ren d er\nth at p o rtio n o f th e law u n c o n stitu tio n a l in th e u n a n im o u s v ie w o f the C o u rt. In d e e d , the C ourt\nstru c k th e p ro v isio n d o w n o n th e g ro u n d th a t th e 2 0 -y e a r lim itatio n " w ill in part h av e the e ffe c t o f\na d v an c in g re lig io n ," 4 0 3 U .S ., at 6 8 3 [e m p h a sis a d d e d ], not b e ca u se th at e ffe c t w as p re d o m in a n t.\nN o o n e c o u ld h av e c la im e d th e re th at the la w \xe2\x80\x99s c e n tra l e ffe c ts w e re sec u la r. O n ly w h en the\nsec ta ria n e ffe c ts m a y b e c h a ra c te riz e d fa irly as m e re ly \xe2\x80\x9c in c id e n ta l\xe2\x80\x9d c an a fu n d in g p ro g ra m w hich\nb e n efits re lig io n be u p h eld .\n\n80\n\n\x0coperation draw distinctions based upon the religious character of institutions.\nThis contention may be maintained, however, if no line is drawn between\nelementary and secondary school and higher education tuition credits. We think\nthe bill cannot be viewed in this manner for several reasons. First, as we noted\nabove, the Supreme Court has repeatedly drawn a distinction between grants to\nsectarian colleges and universities and similar grants at the precollege level.\nSecond, the history o f education in this country has evolved along lines\ndistinguishing between universal free and mandatory public education at the\nelementary and secondary level and nonmandatory, and rarely free, educational\nofferings by the States at the higher education level. Because of these\ndifferences, the effect o f the bill\xe2\x80\x99s tax credit provisions will be decidedly\ndifferent for parents of public schoolchildren than for those whose offspring are\nenrolled in colleges and universities. Third, comments and testimony submitted\non the bill leave little doubt that Congress is aware o f the differences between\ntuition tax credits for the families of college students and credits for those\nfamilies of elementary and secondary schoolchildren who desire a private\nschool alternative.5 See, e.g ., letter dated December 21, 1977, to Senators\nPackwood and Moynihan from Professor Freund of Harvard Law School.\nFinally, we do not think that broadening the class of beneficiaries to mesh\nelementary and secondary students with college and university students\nobscures the fact that one of the \xe2\x80\x9c primary effects\xe2\x80\x9d of the bill is to aid sectarian\neducation. The Court has stated clearly that to constitute a \xe2\x80\x9c primary effect\xe2\x80\x9d a\nlaw need not result exclusively or even predominantly in religious benefits.\nRather, a primary effect can exist even where there are any number of other\nappropriate and praiseworthy consequences of the legislation. Given these\nconsiderations, we do not think it reasonable to contend that the provisions of\nthe bill pertaining to tuition for elementary and secondary schools would\nsurvive on \xe2\x80\x9c neutrality\xe2\x80\x9d grounds.6\nAn alternative argument in support of the bill is that Federal tax relief is\nfundamentally different from similar State measures. If the States promote the\neducation of elementary and secondary schoolchildren through the provision of\nfree public schools, the primary effect of any State tax relief for elementary and\nsecondary school tuition is to assist the sectarian schools which make up the\nbulk of educational institutions charging tuition. It is argued that the Federal\nGovernment, on the other hand, does not provide elementary and secondary\n\n5W e note th at the rep o rt o f th e S en a te F in an ce C o m m itte e o n the b ill, as a m e n d e d , sep a ra te ly\nd iscu sses e le m en ta ry an d sec o n d a ry sch o o l tu itio n c re d its an d c o lle g e tu itio n c re d its. S. R ept. N o.\n9 5 -6 4 2 , 9 5 th C o n g ., 2d sess. 2-3 (1 9 7 8 ).\n6S u p p o rters o f th e bill w h o seek to d istin g u ish Nyquist m ake o ne o th e r g e n eralize d c la im . T h e\na ssertio n is m ade th at the C o u rt\'s p re c ed e n ts in the E sta b lish m en t C la u se are a o f First A m e n d m e n t\nlaw have b een so fle x ib le an d u n p re d ic ta b le th at little s ig n ific a n ce m ay be a tta ch e d to recen t\nh old in g s. In o u r v iew th at re a d in g o f th e c ase s is u n fa ir. C e rta in ly , as the C o u rt h as freely\nack n o w le d g e d , the lines are n o t e a s y o n e s to d ra w . T h e C o u rt h a s, h o w e v e r, d e v e lo p e d \xe2\x80\x94 and\na dhered to\xe2\x80\x94 the th re e -p a rt te st o u tlin e d a t len g th 8 y e ars ag o in Lemon v. Kurtzman. supra.\nT h at test has c o m m a n d ed the v o tes o f e v ery Ju stic e o f the C o u rt w ith the e x c e p tio n o f Ju stic e s\nW hite an d R eh n q u ist. M o re o v er, w e k n o w o f n o reaso n to a rg u e th a t Nyquist and Sloan, the\np re c ed e n ts d ire c tly p e rtin e n t h e re , are o f d o u b tfu l v ita lity .\n\n81\n\n\x0cschooling, and can attempt effectively to promote the education of schoolchildren\nonly through generally applicable tax relief measures. This argument ignores\nthe focus of Nyquist. Although the purpose underlying a tax-benefit plan may\nbe both secular and laudable, the effect of the plan may be impermissibly to\nadvance or inhibit religion. As we have said, it is our opinion that the effect\nupon nonpublic elem entary and secondary schools of the Packwood-Moynihan\ntax credit would be constitutionally indistinguishable from the effect of the\nNyquist tax reduction legislation.7\nOur comments with respect to the proposed extension of the Basic Educational\nOpportunity Grant (BEOG) program 8 to include nonpublic elementary and\nsecondary education follow the same vein. Under the present program grants\nare awarded to students enrolled at institutions of higher learning on the basis of\nneed. The amount o f the grant is determined by a number o f factors including\nfamily size, income, and tuition costs. The proposed extension would make\nthose grants available to pupils in nonpublic elementary and secondary schools\nas well. Both Nyquist and Sloan hold that tuition grants for nonpublic\nelementary and secondary education infringe upon the Establishment Clause\nguarantee if a primary effect o f the grant or reimbursement plan is to aid\nsectarian schools. Given the predominantly sectarian affiliation of nonpublic\nelementary and secondary schools nationally, any broadening of the BEOG\nprogram into elem entary and secondary education would appear to have a\nprimary effect nearly identical to the tuition reimbursement plans invalidated in\nNyquist and Sloan.\nFinally, we note that the problem o f entanglement in the form of politically\ndivisive activity described by the Court in Nyquist would exist under both\ntuition relief proposals. Insofar as the programs have a primary effect upon\nsectarian elementary and secondary schools, controversy is predictable. As the\nCourt stated:\n[W]e know from long experience with both Federal and State Govern\xc2\xad\nments that aid programs o f any kind tend to become entrenched, to\nescalate in cost, and to generate their own aggressive constituen\xc2\xad\ncies. . . . In this situation, where the underlying issue is the deeply\n7W e b e lie v e , h o w e v e r, th at th e P a c k w o o d -M o y n ih a n tax c re d it w ould be c o n stitu tio n a l w ith\nre sp ec t to c o lle g e a n d u n iv e rsity tu itio n . It a p p e a rs th at th e b e n efits o f a h ig h e r e d u ca tio n tax cre d it\nw ou ld flo w to a b ro a d c la ss o f in d iv id u a ls , an d n o t, as w ith e le m e n ta ry and sec o n d a ry school\nc re d its , p rim a rily to in d iv id u a ls a ffilia te d w ith sec ta ria n in s titu tio n s. A s the C o u rt n o ted in Nyquist.\nn o th in g in its d e c isio n c o m p e ls th e c o n c lu sio n that a g e n e ra lly a v ailab le fo rm o f ed u ca tio n\na ssista n c e , su ch as th e \xe2\x80\x9c G .I . B i l l , " 38 U .S .C . \xc2\xa7 16 5 1 , im p e rm issib ly a d v an c e s re lig io n . 4 1 3 U .S .,\na t 7 8 3 , n. 38. O u r v ie w s on th e c o n stitu tio n a lity o f th e c o lle g e tu itio n tax c re d it are b u ttresse d by\nthe C o u rt\xe2\x80\x99s recen t su m m a ry a ffirm a n c e o f a c a se in v o lv in g an E sta b lish m e n t C la u se c h a lle n g e to a\nT e n n e sse e p ro g ram p ro v id in g g ra n ts to s tu d e n ts in p u b lic a n d p riv a te c o lle g es. Americans United\nfo r the Separation o f Church and State v. Blanton. 4 3 4 U .S . 8 0 3 , (1 9 7 7 ), a ff g 4 33 F. S u p p . 97\n(M .D . T e n n . 1977). T h e d is tric t c o u rt, re ly in g in p art o n th e Nyquist fo o tn o te m en tio n e d a b o v e,\nc o n c lu d e d that the b ro a d T e n n e ss e e c o lle g e s c h o la rs h ip p ro g ra m , w ith its e m p h a sis o n the student\nra th e r th a n the in stitu tio n , d id n o t h a v e th e e ffe c t o f fa v o rin g p riv a te o r sec ta ria n institu tio n s o v e r\npu b lic in stitu tio n s an d th e re fo re d id not c o m p ro m is e E s ta b lish m en t C la u se v a lu e s. W e b eliev e that\nthe sam e ra tio n a le is a p p lic a b le to F e d e ra l tax c re d its fo r c o lle g e and u n iv e rsity tuitio n .\n\xe2\x80\x9cT h a t p ro g ram is set o u t at 20 U .S .C . \xc2\xa7 107a (1 9 7 5 S u p p .), as a m e n d ed by 2 0 U .S .C .A . 1070a\n(1 9 7 6 ).\n\n82\n\n\x0cemotional one of Church-State relationship, the potential for seriously\ndivisive political consequences needs no elaboration. [413 U.S. at\n797]\nIn conclusion, it is our opinion that both the proposed extension of the BEOG\nand the provisions o f the Packwood-M oynihan bill which would provide relief\nfor tuition payments to nonpublic elementary and secondary schools are\nunconstitutional under the decisions of the Supreme Court in Nyquist and\nSloan.\nJo h n M . H a rm o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n83\n\n\x0c'


b'January 30, 1978\n\n78-7\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nApplicability of Antilobbying Statute\n(18 U.S.C. \xc2\xa7 1913)\xe2\x80\x94 Federal Judges\n\nThis responds to your request that we address the issue whether the\nantilobbying statute, 18 U .S.C . \xc2\xa7 1913, prohibits sitting Federal judges from\nusing resources associated with their official position (telephone, stationery,\nstaff, and personal work time) to com m unicate with individual Members of\nCongress concerning pending or proposed legislation. We outline below what\nwe believe to be the pertinent considerations and conclude that the issue is one\nthat can only be resolved through the independent deliberations o f the judicial\nbranch.\n18 U .S.C . \xc2\xa7 1913 reads as follows:\ni\n\n\xc2\xa3Io part o f the money appropriated by an enactment of Congress\nshall, in the absence o f express authorization by Congress, be used\ndirectly or indirectly to pay for any personal service, advertisement,\ntelegram, telephone, letter, printed or written matter, or other device,\nintended or designed to influence in any manner a M ember of\n\' Congress, to favor or oppose, by vote or otherwise, any legislation or\nappropriation by Congress, whether before or after the introduction\no f any bill or resolution proposing such legislation or appropriation;\nbut this shall not prevent officers or employees of the United States or\no f its departments or agencies from communicating to Members of\nCongress on the request o f any M ember or to Congress, through the\nproper official channels, requests for legislation or appropriations\nwhich they deem necessary for the efficient conduct of the public\nbusiness.\nW hoever, being an officer or em ployee o f the United States or of\nany department or agency thereof, violates or attempts to violate this\nsection, shall be fined not more than $500 or imprisoned not more\nthan one year, or both; and after notice and hearing by the superior\nofficer vested with the power o f removing him, shall be removed\nfrom office or em ployment.\n30\n\n\x0cThis provision first appeared in 1919 as a rider to an appropriations bill. Act of\nJuly 11, 1919, ch. 6, \xc2\xa7 6, 41 Stat. 68. It was one o f a series of measures\ndesigned to check the expanding activities of the Federal bureaucracy not\ndirectly related to any statutory m ission.1\nNo criminal prosecutions have been undertaken pursuant to this provision.\nThe only relevant judicial interpretations of this measure provide rather\nsuperficial analyses. See, American Public Gas Association v. Federal Energy\nAdministration, 408 F. Supp. 640 (D .D .C . 1976); National Association fo r\nCommunity\xe2\x80\x99 Development v. Hodgson, 356 F. Supp. 1399 (D .D .C . 1973). The\nlimited legislative history demonstrates that its enactment was spurred by a\nsingle, particularly egregious instance of official abuse\xe2\x80\x94 the use o f Federal\nfunds to pay for telegrams urging selected citizens to contact their congres\xc2\xad\nsional representatives in support o f legislation of interest to the instigating\nagency. See 58 Cong. Rec. 403 (1919). The provision was intended to bar the\nuse of official funds to underwrite agency public relations campaigns urging\nthe public to pressure Congress in support of agency views.\nThis interpretation is bolstered by the inclusion in the measure of the\nfollowing savings clause:\n. . . but this shall not prevent officers or employees of the United\nStates or of its departments or agencies from communicating to\nMembers of Congress on the request of any M ember or to Congress,\nthrough the proper official channels, requests for legislation or\nappropriations which they deem necessary for the efficient conduct of\nthe public business.\nThe clause provides assurance that, in keeping with well-established traditions\nof ongoing communication between the executive and the legislative branches\n(see N. Small, Some Presidential Interpretations o f the Presidency, 164-166\n(1970)), and the constitutional principle of separation of powers, direct\ncommunications by \xe2\x80\x9c officers or employees of the United States\xe2\x80\x9d to Congress\nwill not be disturbed. The qualification \xe2\x80\x9c to Members of Congress on the\nrequest of any M ember or to Congress\xe2\x80\x9d seems designed more to stress the\nindividual M em ber\xe2\x80\x99s prerogative of addressing communications to non\xc2\xad\nlegislative branch officials than, by virtue o f the apparent dichotomy between\n\xe2\x80\x9c Members of C ongress\xe2\x80\x9d and \xe2\x80\x9c C ongress,\xe2\x80\x9d to limit communications from such\nofficials to situations in which they address Congress as a whole, or in which\nreplies to individual M embers o f Congress have been authorized by a\nRepresentative\xe2\x80\x99s request.\n. The clause does indicate that such communication is to take place \xe2\x80\x9c through\nthe proper official channels.\xe2\x80\x9d Statements made in the course of the congres\xc2\xad\nsional debate on a proposed, but unsuccessful, amendment to the provision\n\n\'S ee, e.g .. Act o f O ctober 22. 1913, ch. 32, \xc2\xa7 I ; 38 Stat. 212; 5 U .S .C . \xc2\xa7 3107 (prohibition of\nexpenditures for unauthorized \xe2\x80\x9c publicity ex p erts"); Act o f August 2, 1939, ch. 410; 53 Stat. 1148;\n5 U .S .C . \xc2\xa7 7324 ei al. (Political Activity Act); Act o f August 31, 1951. \xc2\xa7 408; 65 Stat. 247\n(Department o f Agriculture Appropriation A ct, 1952) (prohibition of unauthorized expenditures for\n\xe2\x80\x9c publicity or propaganda purposes\xe2\x80\x9d ).\n\n31\n\n\x0csuggest that this limitation was meant to assure that communications to\nCongress from nonlegislative officials be cleared through \xe2\x80\x9c their superiors, or\nwhoever it might b e ,\xe2\x80\x9d 58 Cong. Rec. 425 (1919). In effect, this would screen\nout communications that did not represent the views o f the agency. At the\nsame time, the right o f officers and em ployees to petition Congress in their\nindividual capacities, codified in the Act o f August 24, 1912, ch. 389, \xc2\xa7 6 (37\nStat. 555; 5 U .S.C . \xc2\xa7 7102) was preserved.\nThe thrust o f this language is to recognize the danger of ultra vires\nexpressions o f individual views in the guise o f official statements. Congress did\nnot define the scope o f the term \xe2\x80\x9c official channels\xe2\x80\x9d ; rather, it recognized the\nneed for monitoring the opinions expressed under color o f office in order to\ninsure a consistent agency position. This difficulty is not removed by a direct\nsolicitation of an individual official\xe2\x80\x99s views by a M ember of Congress.\nIn light o f the context in which the language was adopted, it is particularly\ninappropriate to engage in legalistic arguments as to whether a Federal judge,\nwho lacks any direct superior, speaks \xe2\x80\x9c through proper official channels\xe2\x80\x9d\nwhenever the judge takes a position with respect to matters of judicial concern.\nInstead, it must be recognized that C ongress\xe2\x80\x99 intent was to leave to the other\nbranches o f government the determ ination o f what internal checks and methods\no f clearance would be appropriate.\nA num ber o f constraints peculiar to the judicial branch may bear on that\ndetermination. Canon 4 of the American Bar Association\xe2\x80\x99s Code of Judicial\nConduct provides, in pertinent part:\nA judge, subject to the proper performance of his judicial duties,\nmay engage in the following quasi-judicial activities, if in doing so he\ndoes not cast doubt on his capacity to decide impartially any issue\nthat may come before him:\nB. He may appear at a public hearing before an executive or\nlegislative body or official on matters concerning the law, the legal\nsystem , and the administration o f justice, and he may otherwise\nconsult with an executive or legislative body or official, but only on\nmatters concerning the adm inistration of justice.\nWhile Canon 4 appears to authorize certain activities, it does so only as to\n\xe2\x80\x9c matters concerning the administration o f ju stic e,\xe2\x80\x9d and only if the judge \xe2\x80\x9c does\nnot cast doubt on his capacity to decide impartially any issue that may come\nbefore him .\xe2\x80\x9d\nConstitutional constraints also need to be taken into account. The Framers\nconsidered, and rejected, several proposals that members of the judiciary serve\nas advisers on a \xe2\x80\x9c council o f revision\xe2\x80\x9d designed, in effect, to veto improper\nlaws, reasoning that \xe2\x80\x9c the Judges ought to be able to expound the law as it\nshould come before them free from the bias o f having participated in its\nformation. \xe2\x80\x9d See 1 M. Farrand, The Records o f the Federal Convention o f 1787\n(rev. ed ., 1966), at 98; see also 1 id. 108-110, 138-140; 2 id. 73-80, 298. Early\nin the N ation\xe2\x80\x99s history, the Supreme Court refused a request by President\nW ashington for advice concerning certain legal issues growing out of American\n32\n\n\x0cneutrality during the war in Europe. See 1 C. W arren, The Supreme Court in\nUnited States H istory (Boston rev. ed., 1937), 108-111. A related concern, that\nthe constitutional principle o f separation of powers be preserved, arises in\nconnection with the facts posed by this inquiry. M oreover, the judiciary\ntraditionally refuses to render advisory opinions or opinions that are not final\nbut subject to revision by the executive or legislative branches. See, e .g .,\nHayburn\'s Case 2 D ali., 409 (1792).\nThus, even if a judge is not acting as a judge in rendering informal advice to\nMembers o f Congress, his insistence on doing so in his official capacity may be\nill-advised in light of other, more practical considerations. Just as with an\nexecutive agency, there is a need that the judiciary not be divided into a number\nof camps based on their varying advice to various Members of Congress.\nJudges must be especially careful not to be drawn into political disputes; they\nmust remain impartial. Appearances at hearings may present different problems\nfrom those that arise in giving advice to individual Members of Congress. The\nresult of such joint consideration of particular issues is in most instances a\nmerger o f ideas into a single, public product. A provision for more informal\nadvice may give a judge a vested interest in the way that a particular statute is\nformulated, but provide no obvious identification of his connection with the\nprovision sufficient to allow a litigating party, including the United States, to\nask that he recuse himself.\nCongress recognizes that only limited access to the judiciary for purposes of\nadvice on legislation is appropriate. The statute creating the Judicial Confer\xc2\xad\nence of the United States, 28 U .S.C . \xc2\xa7 331, which established a procedure for\nmaking budget estimates, 28 U .S.C. \xc2\xa7 605, and the statute establishing a\nmechanism for raising problems concerning the operation o f the Speedy Trial\nAct, 18 U .S.C . \xc2\xa7 3165(c), all contemplate the funneling of ideas relating to\nlegislation through that single forum. In light o f Congress\xe2\x80\x99 own reluctance to\nintrude in this realm, it is particularly ill-advised for an executive agency, such\nas the Department o f Justice, to do more than suggest that the question\npresented here raises issues that must of necessity be resolved internally within\nthe judicial branch.\nJo\n\nh n\n\nM. H\n\narm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n33\n\n\x0c'