b"M arch 31, 1977\n\n77-16\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR OF THE BUREAU OF PRISONS\nAuthority of Bureau of Prisons Physicians to\nPerform Autopsies\n\nThis is in response to your memorandum requesting our opinion on\nwhether wardens of Federal prisons can be empowered to authorize\nautopsies o f deceased inmates without regard to State laws requiring\nconsent of next of kin or approval by State officials. We have examined\nthe question, and we conclude that legislation is necessary for this\npurpose. In addition, we suggest the lines that a proposed statute might\nfollow.\nThe rights o f a surviving spouse or next of kin in a dead body derive\nfrom the common law. W hile the details vary among the States, a\nsurvey o f the law of the District of Columbia and a geographically\ndiverse sample of State law (California, Georgia, Kansas, Massachu\xc2\xad\nsetts, and Texas) shows agreement on general principles. The surviving\nspouse, if any, and otherwise the next o f kin have only a right to the\nreasonably prompt possession on the intact body for purpose of burial\nor cremation. Although this right is not considered a property right,\ndamages may be awarded for unauthorized interference with the body,\nincluding an unauthorized autopsy. See, e.g., Steagall v. Doctors\xe2\x80\x99 Hospi\xc2\xad\ntal, 171 F. 2d 352 (D.C. Cir. 1948); Pollard v. Phelps, 56 Ga. App. 408\n(1937); Weingast v. State, 44 Misc. 2d 824, 254 N.Y.S. 2d 952 (1954);\nAetna Casualty & Surety Co. v. Love, 132 Tex. 280, 121 S.W. 2d 986\n(1939). See, generally, Annotation, 83 A.L.R. 2d 956 (1961).\nThe right, however, is subject to public necessity as defined by State\nstatute. As a general rule, if the proper State administrative or judicial\nofficer determines in good faith that the statutory grounds for an\nautopsy exist, he or she may proceed without the consent of the spouse\nor next o f kin. See, e.g., California Health & Safety Code \xc2\xa77113;\nCalifornia Government Code \xc2\xa727491.4; Code of Georgia \xc2\xa7 21-203(3);\nMassachusetts General Laws Annotated, Ch. 38, \xc2\xa7 6; New York Public\nHealth Law \xc2\xa74210; Gahn v. Leary, 318 Mass. 425, 61 N.E. 2d 844,\n(1945); Gray v. State, 55 Tex. Cr. 90, 114 S.W. 635 (1908).\n48\n\n\x0cState statutory grounds for autopsy vary, but generally include any\nsudden, violent, unexplained, or otherwise possibly criminally caused\ndeath. See, e.g., California Government Code \xc2\xa7 27491; Code of Georgia\n\xc2\xa721-205; New York Public Health Law \xc2\xa74210; Texas Code of Crimi\xc2\xad\nnal Procedure, Art. 49.01. Three of the States surveyed (California,\nGeorgia, and Texas) specifically provide for autopsies in the case of\nany death in prison, and New York authorizes the Commissioner of\nCorrections to procure an autopsy at his discretion. California G overn\xc2\xad\nment Code \xc2\xa724791; Code of Georgia \xc2\xa721-205(2); New York Public\nHealth Law \xc2\xa74210; Texas Code of Criminal Procedure, Art. 49.01.\nOur partial examination of State law leads us to conclude that the\nright of the spouse or next of kin to control the disposition o f a dead\nbody is subject to public necessity as defined by one with authority to\ndo so. The statutory power of local officials to order autopsies is given\nin the furtherance of a state interest, usually the investigation of crime\nor the protection of public health.\nBecause the Attorney General and the Bureau of Prisons are respon\xc2\xad\nsible for the custody, discipline, and welfare of Federal prisoners, 18\nU.S.C. \xc2\xa7\xc2\xa74001, 4042(3), Congress can, of course, confer on them the\nspecific authority to conduct autopsies without consent when reason\xc2\xad\nably necessary to perform these functions.1 See, generally, E x parte,\nSiebold, 100 U.S. 371, 383-86 (1879); McCulloch v. Maryland, 17 U.S.\n316, 408-17 (1819). By analogy with California, Georgia, New York,\nand Texas law, a statute can provide autopsy authority for any death\noccurring in prison.\nMore circumscribed authority might be desired to preclude autopsies\nfor scientific or medical reasons unrelated to prison administration. If\nso, a statute could appropriately authorize an autopsy in the event o f\nhomicide, suicide, fatal illness or accident, or other unexplained death\nof an inmate if the Bureau determines one is necessary to detect crime,\nmaintain discipline, protect the health or safety of the inmates, remedy\nofficial misconduct, or defend the United States or its employees from\ntort liability arising from the administration of a Bureau institution.\nYou have suggested that the authority to perform autopsies without\nconsent might be equally permissible by regulation promulgated pursu\xc2\xad\nant to the authority conferred by 5 U.S.C. \xc2\xa7301.2 Such regulations\n\xe2\x96\xa0Under 49 U.S.C. \xc2\xa7 1441(c), for exam ple, the National T ransportation Safety B oard\n(N T SB ) is em pow ered to c onduct an autopsy o f any person w ho w as aboard an aircraft\ninvolved in a fatal crash. C ongress concluded that although autopsies w e re a valuable\ntool in air crash investigations, their use had been hindered by the provisions of various\nState laws. A ccordingly, the legislation was enacted to enable the N T SB to \xe2\x80\x9cproceed\nprom ptly w ith autopsies . . . w ith a minimum o f delay and thus to overcom e difficulties\nw here autopsy inform ation is dependent upon the consent o f next o f kin o r com pliance\nw ith state procedure . . . . \xe2\x80\x9d H.R. Rep. No. 2487, 87th Cong., 2d Sess. 5 (1962).\n\xe2\x80\x99 T hat section provides, in pertinent part:\nT he head o f an E xecutive . . . departm ent m ay prescribe regulations for the g o v e rn \xc2\xad\nm ent of his department,' the c onduct o f its em ployees, the distribution and perform \xc2\xad\nance o f its business, and the custody, use and preservation o f its property.\nIt has been in substantially this form since its origin as \xc2\xa7 161 o f the R evised Statutes.\n\n49\n\n\x0chave the force of law if within the scope of the relevant statute. Georgia\nv. United States, 411 U.S. 526, 536 (1973); Smith v. United States, 170\nU.S. 372, 377-78 (1898). However, \xc2\xa7 301 does not confer authority to\nchange the substantive rights of persons not connected with the G ov\xc2\xad\nernment. Regulations purporting to do so are valid only if consistent\nwith independent statutory authority. Compare United States v. Morehead, 243 U.S. 607 (1917), with United States v. George, 228 U.S. 14\n(1913); see, Georgia v. United States, supra-, 36 Op. A.G. 21, 25 (1929);\n17 Op. A.G. 524, 525 (1883). It is therefore unlikely that a regulation\nrelying solely on \xc2\xa7 301 could legally alter the State law rights of third\npersons.\nThe only pertinent substantive statute here is 18 U.S.C. \xc2\xa74001.3\nSubject to constitutional limits, this section authorizes the Attorney\nGeneral to restrict access o f third parties to prisoners in the interest of\nprison management. See, e.g., Saxbe v. Washington Post Co., 417 U.S.\n843 (1974); Carter v. United States, 333 F. 2d 354 (10th Cir. 1964). It\ncan be argued that the pow er to operate the prison system includes the\npower to retain and perform an autopsy on the body of a deceased\nprisoner without consent when necessary to preserve discipline or pro\xc2\xad\ntect the health and safety of surviving prisoners. The Armed Forces,\nwhich exercise a similar degree of authority over their members, con\xc2\xad\nduct nonconsensual autopsies without express statutory authority.4\nOn the other hand, we believe that the weight of authority speaks\nagainst the validity of such a regulation premised on 18 U.S.C. \xc2\xa74001.\nAs your request points out, no other Federal civilian agency performs\nautopsies without consent unless authorized by statute. Congress has\nspecifically provided for autopsies of prisoners without consent in one\nlimited situation.5 As noted above, it has also empowered the National\nTransportation Safety Board to conduct autopsies without consent.\xc2\xae It\ncan be inferred from these precedents that statutory authority is re\xc2\xad\nquired to override a claimant\xe2\x80\x99s right to the body of a prisoner. More\xc2\xad\nover, the consensus of State decisions is that consent is necessary unless\n3 In pertinent part, it provides:\nT h e co n tro l and m anagem ent o f Federal penal and correctional institutions . . . shall\nbe vested in the A ttorney G eneral, w ho shall prom ulgate rules for the governm ent\nth e re o f. . .\n4 F o r exam ple. A rm y Reg. 40 -2 , para. 4-4, em pow ers th e com m ander to have an\na utopsy perform ed on any m ember o f the arm ed forces w ho dies on active duty \xe2\x80\x9cw hen it\nis considered necessary for the p ro tec tio n o f the m ilitary com m unity to determ ine the\ntru e cause o f d eath . . .\nThe a u th o rity for this regulation is 10 U.S.C. \xc2\xa73012, w hich\nauthorizes the S ecretary o f the A rm y to prescribe regulations for its governm ent, and the\nD ep artm en t o f D efense A ppropriation A c t o f 1977, \xc2\xa7 740, w h ic h authorizes the A rm y to\npro v id e m edical care.\n5 18 U.S.C. \xc2\xa7 3567 perm its the c o u rt, as part o f a death sentence, to o rd e r the dissection\no f the body o f a prisoner convicted o f first degree m urder o r rape.\n\xc2\xabSee 49 U.S.C. \xc2\xa7 1441(c).\n\n50\n\n\x0can explicit statute is to the contrary.7 Finally, as stated above, several\nStates have found it necessary to provide specifically for autopsies\nwithout consent in prison deaths. We conclude therefore that 18 U.S.C.\n\xc2\xa7 4001 does not provide the authority you desire and that legislation is\nrequired to authorize nonconsensual autopsies.\nIn addition, it would appear that legislation is needed to resolve two\ntechnical difficulties. First, it could provide the clear authority to\nemploy outside medical personnel instead of Bureau personnel hired\nunder the authority of 18 U.S.C. \xc2\xa74001 or Public Health Service (PHS)\ndoctors detailed under 18 U.S.C. \xc2\xa74005. Second, it could limit the tort\nliability of Bureau personnel or other persons for any wrongful autopsy\nby restricting claimants to the Federal T ort Claims Act.\nFinally, it should be noted that certain religions forbid an autopsy of\ntheir adherents. Any statute that dispenses entirely with consent may be\nattacked by a claimant of a body as an infringement on the free exercise\nof religion. In such a case, the constitutionality of the regulation would\nturn on the balance between the claimant\xe2\x80\x99s First Amendment rights and\nthe Federal interest in conducting the autopsy. See, Wisconsin v. Yoder,\n406 U.S. 205, 213-15 (1972); Cruz v. Beto, 405 U.S. 319, 321-22 (1972).\nThe governmental interests in the discipline, safety, and health of pris\xc2\xad\noners are probably stronger than the incidental offense to the claimant\xe2\x80\x99s\nbeliefs. See, Prince v. Massachusetts, 321 U.S. 158 (1944); Winters v.\nMuller, 306 F. Supp. 1158, 1166 (D. N.Y. 1969); Jehovah's Witnesses in\nthe State o f Washington v. King County Hospital Unit No. 1, 278 F.\nSupp. 488, 503-05 (D. Wash. 1967), prob. juris, declined, 390 U.S. 598\n(1968); cf, Jacobson v. Massachusetts, 197 U.S. 11, 27-30 (1905). But cf,\nWisconsin v. Yoder, supra. It would be advisable to minimize the prob\xc2\xad\nlem, however, by providing by statute or regulation that religious\nscruples will be respected when investigative needs permit. See, e.g., 49\nU.S.C. \xc2\xa7 1441(c).8\nJohn M. H\n\narmon\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n7 E.g\xe2\x80\x9e Donnelly v. Guion, 467 F. 2d 290 (2d Cir. 1972); Crenshaw v. O \xe2\x80\x99Connell, 235 Mo.\nA pp. 1085, 150 S.W. 2d 489 (1941); Darcy v. Presbyterian Hospital, 202 N.Y. 259, 95 N .E.\n695 (1911); Gurganious v. Simpson, 213 N.C. 613, 197 S.E. 163 (1938); Frick v. McClel\xc2\xad\nland, 384 Pa. 597, 122 A. 2d 43 (1956); Aetna Casualty & Surety Co. v. Love, 132 Tex. 280,\n121 S.W . 2d 986 (1939). See, generally. Annotation, 83 A .L .R . 2d 956.\n* 42 U.S.C. \xc2\xa7 233 provides this protection to Public H ealth Service employees. Sim ilar\np rotection for private physicians w ho m ight perform autopsies and for Bureau personnel\nw h o authorize them may be desirable.\n\n51\n\n\x0c"


b'Brady Act Implementation Issues\nT he A ttorney G eneral m ay im pose an expiration date on the validity o f a check, conducted pursuant\nto the B rady A ct by the national instant crim inal background check system , that authorizes the\ntransfer o f a firearm .\nInform ation from the national instant crim inal background check system m ay be disclosed to law\nenforcem ent agencies to further their crim inal investigations, b ut disclosures m ay n ot be m ade\nfo r th e purpose o f establishing firearm s registries and non-consensual disclosures m ay n ot be m ade\nfor em ploym ent and licensing purposes.\nT he P rivacy Act p laces no restrictions on the A ttorney G en eral\xe2\x80\x99s express authority under the B rady\nA ct to request inform ation from federal agencies identifying individuals w ho fall w ithin the cat\xc2\xad\neg o ries o f persons prohibited from possessing firearm s.\n\nFebruary 13, 1996\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nF e d e r a l B u r e a u o f In v e s t ig a t io n\n\nThis memorandum responds to your request for our advice concerning imple\xc2\xad\nmentation of the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159,\n107 Stat. 1536 (1993) (\xe2\x80\x9c Brady Act\xe2\x80\x9d ). Specifically, you have asked three questions\nrelating to the national instant criminal background check system (\xe2\x80\x9c NICS\xe2\x80\x9d ) man\xc2\xad\ndated by the Brady Act:\n(I) May the Attorney General impose an expiration date on a NICS\ncheck that allows the transfer of a firearm?\n(II) May NICS be used for purposes other than conducting back\xc2\xad\nground checks on prospective firearms purchasers?\n(III) May the Attorney General request from federal agencies all\ninformation identifying individuals who fall within the categories\nof persons prohibited from possessing firearms?\nWe address each of these questions below.\nYou have also asked us to review a memorandum prepared by the Office of\nPolicy Development (\xe2\x80\x9c OPD\xe2\x80\x9d ) that concludes that the Brady Act does not preempt\nstates from imposing additional restrictions providing for waiting periods on the\nsale of firearms. We agree with the conclusion reached by OPD.\nI. The Attorney General May Impose An Expiration Date on a NICS Check\nSection 103 of the Brady Act provides for the establishment of NICS by the\nAttorney General. The system must be operational by the start of 1999. Firearms\ndealers will then be required to refer the proposed firearm transfer to that system\nto determine whether any legal impediment exists to the sale. 18 U.S.C. \xc2\xa7922(t)(l)\n57\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\n(1994). You have advised us that upon completion of the NICS check, the system\nwould notify the firearm dealer of the results of the check by an indication that\nthe transfer would be legal or not. You have asked whether the Attorney General\nhas the authority to impose an expiration date on the validity of a NICS check\nthat allows for the transfer of a firearm. As discussed below, we conclude that\nthe Attorney General may impose an expiration date on a NICS check.\nSection 103(b) of the Brady Act states that \xe2\x80\x9c the Attorney General shall establish\na national instant criminal background check system that any licensee may contact\n. . . to be supplied immediately, on whether receipt of a firearm by a prospective\ntransferee would violate section 922 of title 18, United States Code, or State law.\xe2\x80\x9d\n107 Stat. at 1541. Section 103(d) provides that \xe2\x80\x9c [o]n establishment of the system\nunder this section, the Attorney General shall notify each licensee and the chief\nlaw enforcement officer of each State of the existence and purpose of the system\nand the means to be used to contact the system.\xe2\x80\x9d Id. at 1541-42. Section 103(e)(2)\nauthorizes the Attorney General to develop the computer software and design as\nnecessary to \xe2\x80\x9c establish and operate the system in accordance with this section.\xe2\x80\x9d\nId. at 1542.\nAlthough the Brady Act does not specifically provide for an expiration date\nfor a NICS check that authorizes a firearm transfer, we believe that in carrying\nout her responsibilities under the Act, the Attorney General has the authority to\nimpose, in effect, a \xe2\x80\x9c useful life\xe2\x80\x9d limitation on the validity of the check. Such\nan exercise of authority would be supported by the Act\xe2\x80\x99s legislative history.\nThe Supreme Court has acknowledged the legitimacy of the executive branch\xe2\x80\x99s\ncompleting the work of Congress, notwithstanding the lack of a specific direction\nby the legislative branch to do so. \xe2\x80\x9c The power of an administrative agency to\nadminister a congressionally created and funded program necessarily requires the\nformulation of policy and the making of rules to fill any gap left, implicitly or\nexplicitly, by Congress.\xe2\x80\x9d Morton v. Ruiz, 415 U.S. 199, 231 (1974). More re\xc2\xad\ncently, the Court stated: \xe2\x80\x9c As we emphasized in [Chevron, U.S.A., Inc. v. Natural\nResources D efense Council, 467 U.S. 837 (1984)], when an agency is charged\nwith administering a statute, part of the authority it receives is the power to give\nreasonable content to the statute\xe2\x80\x99s textual ambiguities.\xe2\x80\x9d Departm ent o f Treasury,\nInternal Revenue Serv. v. Federal Labor Relations Authority, 494 U.S. 922, 933\n(1990).\nA decision by the Attorney General to impose an expiration date on a NICS\ncheck would be supported by the Brady Act\xe2\x80\x99s legislative history. The purpose\nof the Brady Act is to prevent convicted felons and other persons who are barred\nby law from purchasing guns from gun dealers. See H.R. Rep. No. 103-344, at\n7 (1993). This purpose is served by the Attorney General establishing a national\ninstant criminal background check system that is \xe2\x80\x9c capable of instant response\nto inquiries and use by licensed gun dealers . . . at the point of firearm purchase.\xe2\x80\x9d\nId. at 8. NICS will enable firearms dealers to determine \xe2\x80\x9c whether a proposed\n58\n\n\x0cBrady Act Implementation Issues\n\ntransfer would be a prohibited one.\xe2\x80\x9d Id. at 11. NICS \xe2\x80\x9c guarantees immediate deliv\xc2\xad\nery of a handgun to a proven law-abiding citizen.\xe2\x80\x9d Id. at 33 (dissenting views).\nThese congressional statements reveal an intent that the NICS check be con\xc2\xad\nducted close to the time of the proposed sale and that the Attorney General estab\xc2\xad\nlish a system that will operate in that fashion. The purpose of the Brady Act,\nwhich is to prohibit the sale of firearms to certain individuals, is served by a\nsystem that requires a check to occur in close proximity to a firearm sale. If a\nNICS check could be requested at any time prior to a sale and the results of\nthat check were to remain valid for an indefinite period of time, a purchaser could\nobtain a NICS check, wait to purchase the firearm, and then engage in conduct\nthat would otherwise bar the purchase of the firearm. Imposing an expiration date\non the NICS results would better ensure that firearm transfers are made to lawabiding citizens because the dealers would not be able to rely on stale information\nin transferring the weapon.\nWe now turn to your suggestion that the Attorney General impose an expiration\ndate of thirty days following each NICS check. We believe that although a thirty\nday period might be reasonable, a forty-five or sixty day period might be more\nreasonable. Imposing a longer period of time would better afford an opportunity\nto those individuals who were unable to return to the firearms dealer because\nof health or other legitimate personal reasons.\nn . NICS May Be Accessed fo r Other Law Enforcement Purposes\nIn establishing NICS, section 103 of the Brady Act directs the Attorney General\nto gather state criminal history records to include with the federal criminal records\nsystem and to obtain information on persons for whom receipt of a firearm would\nviolate 18 U.S.C. \xc2\xa7 922(g) or (n) or state law. You have advised us that the system\nwill include, inter alia, records on dishonorable dischargees from Defense Depart\xc2\xad\nment files, on drug users and mental defectives/commitments from Veterans Af\xc2\xad\nfairs Department and Defense Department files, and on drug users from the pilot\nlicense files of the Federal Aviation Administration. You have asked whether in\xc2\xad\nformation from NICS may be disclosed to law enforcement agencies to further\ntheir investigations and to other agencies for employment and licensing purposes\nunrelated to firearm purchases. As discussed below, we believe NICS may be\naccessed by, or information therefrom may be disclosed to, law enforcement agen\xc2\xad\ncies. Disclosures for purposes of establishing firearms registries, however, are pro\xc2\xad\nhibited. Also, non-consensual disclosures for employment and licensing purposes\nare not authorized.\nUnder 28 U.S.C. \xc2\xa7534 (1994), the Attorney General has the authority to dis\xc2\xad\nseminate NICS information to authorized federal, state, and local officials for their\nofficial use. The disclosure, however, must satisfy the requirements of the Privacy\n59\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 20\n\nAct. Section 105 of the Brady Act states that the Act \xe2\x80\x9c shall not be construed\nto alter or impair any right or remedy\xe2\x80\x9d under the Privacy Act. 107 Stat. at 1543.\nThe Privacy Act provides, in relevant part, that:\nNo agency shall disclose any record which is contained in a sys\xc2\xad\ntem of records . . . to any person, or to another agency, except\npursuant to a written request by, or with the prior written consent\nof, the individual to whom the record pertains, unless disclosure\nof the record would be\xe2\x80\x94\n(1) to those officers and employees of the agency which maintains\nthe record who have a need for the record in the performance of\ntheir duties;\n(3) for a routine use . . .;\n(7) to another agency . . . for a civil or criminal law enforcement\nactivity if the activity is authorized by law, and if the head of the\nagency or instrumentality has made a written request to the agency\nwhich maintains the record specifying the particular portion desired\nand the law enforcement activity for which the record is sought.\n5 U.S.C. \xc2\xa7 552a(b) (1994).\nThe Privacy Act defines a \xe2\x80\x9c system of records\xe2\x80\x9d as a group of records under\nthe control of an agency \xe2\x80\x9c from which information is retrieved by the name of\nthe individual or by some identifying number.\xe2\x80\x9d 5 U.S.C. \xc2\xa7552a(a)(5) (1994).\nBased upon your description, it is clear that NICS constitutes a \xe2\x80\x9c system of\nrecords\xe2\x80\x9d as that term is defined in the Privacy Act. Accordingly, only disclosures\nfalling within an exception under the Act are permissible.\nSection 552a(b)(l) provides a \xe2\x80\x9c need to know\xe2\x80\x9d exception and authorizes the\nintra-agency disclosure of information for necessary, official purposes. Under this\nexception, components of the Department of Justice needing to know the informa\xc2\xad\ntion in the performance of their official duties will be able to access NICS for\nthat purpose.\nSection 552a(b)(3) permits the disclosures pursuant to \xe2\x80\x9c routine use notices\xe2\x80\x9d\npublished in the Federal Register. A \xe2\x80\x9c routine use\xe2\x80\x9d is defined as the use of infor\xc2\xad\nmation \xe2\x80\x9c for a purpose which is compatible with the purpose for which it was\ncollected.\xe2\x80\x9d 5 U.S.C. \xc2\xa7552a(a)(7). The purpose for which the information in NICS\nwill be collected is a law enforcement purpose. As discussed earlier, the system\nwill be used to prevent convicted felons and other ineligible persons from pur\xc2\xad\nchasing guns. We believe that disclosure of NICS information to law enforcement\nagencies to further their criminal investigations should be held to be compatible\nwith the law enforcement purpose for which the information was collected.\n60\n\n\x0cBrady Act Implementation Issues\n\nEven if a \xe2\x80\x9c routine use\xe2\x80\x9d were not promulgated under \xc2\xa7552a(b)(3), law enforce\xc2\xad\nment agencies would be able to access NICS or obtain NICS information pursuant\nto \xc2\xa7 552a(b)(7), if the requests were submitted in writing and signed by the head\nof the agencies or authorized designees.\nThere are no exceptions in the Privacy Act that would permit the non-consensual\ndisclosures of NICS information for non-law enforcement purposes. Accordingly,\nconsent from the individual would be required to access NICS for purposes of\nemployment and licensing inquiries. *\nSection 103(i) of the Brady Act does not change our analysis or conclusion\nrelating to NICS disclosures. Section 103(i) reads:\nPROHIBITION RELATING TO ESTABLISHMENT OF REG\xc2\xad\nISTRATION SYSTEMS WITH RESPECT TO FIREARMS.\xe2\x80\x94No\ndepartment, agency, officer, or employee of the United States\nmay\xe2\x80\x94\n(1) require that any record or portion thereof generated by the\nsystem established under this section be recorded at or transferred\nto a facility owned, managed, or controlled by the United States\nor any State or political subdivision thereof; or\n(2) use the system established under this section to establish any\nsystem for the registration of firearms, firearm owners, or firearm\ntransaction or dispositions, except with respect to persons, prohib\xc2\xad\nited by section 922 (g) or (n) of title 18, United States Code or\nState law, from receiving a firearm.\n107 Stat. at 1542. The clear intent of Congress in adopting this provision was\nto prohibit the establishment of a firearm registry. The title of the provision, the\nrelation between subparagraphs (1) and (2), and the legislative history support\nour conclusion.\n\xe2\x80\x9c Titles have a communicative function. . . . Since the title of an act is essen\xc2\xad\ntially a part of the act and is itself a legislative expression of the general scope\nof the bill, it is proper to consider it in arriving at the intent of the legislature.\xe2\x80\x9d\n2A Norman J. Singer, Sutherland on Statutes and Statutory Construction \xc2\xa7 47.03\n(5th ed. 1992) (\xe2\x80\x9c Sutherland\xe2\x80\x9d ). Here, the title explicitly limits the scope of the\nprovision to the prohibition of the establishment of a firearm registry.\nLikewise, the interrelation between subparagraphs (1) and (2) confirm our view\nthat the provision is intended to prohibit the use of NICS in establishing a firearm\nregistry. Section 103(i)(l) is a specific prohibition of a particular method in estab\xc2\xad\nlishing a registry. Section 103(i)(2) establishes a general prohibition against using\nthe system to establish a registry. Drafting a statute that includes a specific provi\xe2\x80\xa2E d ito r\xe2\x80\x99s Note: The Department o f Justice published a Privacy Act System Notice for the NICS on 11/25/98\nthat exempts the NICS from the record access provisions o f the Privacy Act, 63 Fed. Reg. 65,060 (1998). Privacy\nAct requests for non-exempt records must comply with the alternative procedure set forth in the notice.\n\n61\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nsion followed by a general one can be explained as a common \xe2\x80\x9c technique de\xc2\xad\nsigned to save the legislature from spelling out in advance every contingency in\nwhich the statute could apply.\xe2\x80\x9d 2A Sutherland at \xc2\xa747.17.\nFinally, the legislative history supports the conclusion we have reached based\non the text of the statute. The report of the House Committee on the Judiciary\nexplained that section 103(i) \xe2\x80\x9c prohibits any Federal department, agency, officer,\nor employee from using the system or any part thereof to establish a registry\nof firearms, firearms owners, or firearms transactions\xe2\x80\x9d except with respect to per\xc2\xad\nsons falling within the ambit of 18 U.S.C. \xc2\xa7 922(g) or (n). H.R. Rep. No. 103344, at 20 (1993). The report thus confirms that the sole purpose of section 103(i)\nwas to prohibit the use of NICS information for the purpose of establishing firearm\nregistries.\nHI. The Attorney General May Request Information From Federal Agencies\nThe Brady Act directs that the Attorney General gather the necessary informa\xc2\xad\ntion in establishing NICS. Section 103(e)(1) states:\nAUTHORITY TO OBTAIN OFFICIAL INFORMATION.\xe2\x80\x94\nNotwithstanding any other law, the Attorney General may secure\ndirectly from any department or agency of the United States such\ninformation on persons for whom receipt of a firearm would violate\nsubsection (g) or (n) of section 922 of title 18, United States Code\nor State law, as is necessary to enable the system to operate in\naccordance with this section. On request of the Attorney General,\nthe head of such department or agency shall furnish such informa\xc2\xad\ntion to the system.\n107 Stat. at 1542.\nSection 105 states that the Brady Act \xe2\x80\x9c shall not be construed to alter or impair\nany right or remedy\xe2\x80\x9d under the Privacy Act. 107 Stat. at 1543. You have asked\nwhether the Privacy Act places any limitation on the Attorney General\xe2\x80\x99s express\nauthority in section 103(e)(1) to request from federal agencies all information\nidentifying individuals who fall within the categories of persons prohibited from\npossessing firearms. We do not believe that it does.\nThe plain meaning of the phrase \xe2\x80\x9c notwithstanding any other law,\xe2\x80\x9d in section\n103(e)(1) convinces us that Congress did not intend for the Privacy Act or any\nother law to prohibit the Attorney General from gathering the critical information\nnecessary to create a registry of individuals prohibited from owning a firearm.\nNICS serves the Brady Act\xe2\x80\x99s fundamental purpose of identifying those individuals\nwho are not permitted by law to own a firearm. Limiting the Attorney General\nin identifying those individuals would be contrary to the purpose of the Act. In\nour view, the effect of the \xe2\x80\x9c notwithstanding any other law\xe2\x80\x9d language in section\n62\n\n\x0cBrady Act Implementation Issues\n\n103(e)(1) is that the Privacy Act does not apply to disclosures by agencies to\nthe Attorney General for the purpose of putting information into NICS. The effect\nof section 105 is that the Privacy Act regulates disclosures out o f NICS.\nRICHARD L. SHIFFRIN\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n63\n\n\x0c'


b'Authority to Establish System of\nUniversal Military Training\nIf Congress enacts legislation along the lines of either of two proposals for the establishment of a\nsystem of universal military training, supported by appropriate declarations of policy and findings of\nfact, such legislation would be well within the constitutional powers of the federal government.\n\nMay 22, 1947\n\nLETTER OPINION FOR THE CHAIRMAN\nADVISORY COMMISSION ON UNIVERSAL TRAINING\nYou have submitted to me two proposals for the establishment of a system of\nuniversal training in this country, one prepared by the War Department, embodying the so-called \xe2\x80\x9cArmy Plan for Universal Military Training\xe2\x80\x9d; the second\nprepared by the American Legion, embodying the features of the so-called\n\xe2\x80\x9cLegion Plan.\xe2\x80\x9d\nYou say, in general: \xe2\x80\x9cThe Commission itself has as yet come to no conclusion\non the question of whether a universal military training program should or should\nnot be adopted or as to the precise form such training should take if any program is\nfavored.\xe2\x80\x9d You add, regarding the Army proposal: \xe2\x80\x9cThe War Department emphasized to me that this draft is in a constant state of revision as to detail and that it\nshould not be considered as in anywise a finished product\xe2\x80\x9d; and regarding the\nLegion proposal: \xe2\x80\x9cLegion officials have also emphasized that their draft is not as\nyet ready for submission to the Congress.\xe2\x80\x9d\nYou ask my opinion \xe2\x80\x9cwhether the enactment of either of these bills is within\nthe constitutional authority of the Federal Government.\xe2\x80\x9d You suggest also that in\nthe event I conclude that either or any part of these bills could not be legally\nenacted by the Congress, I indicate my views \xe2\x80\x9cas to what constitutional amendment or amendments would be required in order to place the authority to enact\nsuch legislation in the Federal Government.\xe2\x80\x9d\nI.\nThe two proposals, to which I shall refer, respectively, as the \xe2\x80\x9cArmy bill\xe2\x80\x9d and\nthe \xe2\x80\x9cLegion bill,\xe2\x80\x9d resemble each other closely both as to purpose and scope. The\nArmy bill, if enacted, would create a Universal Military Training Corps, into\nwhich the young men of the nation, within certain age groups, would be inducted,\non a compulsory basis, to be trained in the arts of war for a twelve-month period\nby the personnel and under the direction of the Armed Forces of the United States.\nThe Legion bill has a similar general design. It would create a corps, under the\nname of National Security Training Corps, into which induction is also to be\ncompulsory, its membership likewise to undergo \xe2\x80\x9cmilitary or related training\xe2\x80\x9d by\narmed forces personnel. Those subject to induction, in each case, would be male\n\n17\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ncitizens and non-citizens between the ages of seventeen and twenty. The periods\nof training differ, but not substantially. Under both proposals, trainees are\npermitted options and alternatives as to training.\nEach proposal visualizes a nationwide system of local boards, approximately\non the pattern utilized in World Wars I and II. The Army bill specifically charges\nthe system established by the President under authority of the Selective Training\nand Service Act of 1940 (Pub. L. No. 76-783, 54 Stat. 885) with \xe2\x80\x9c(1) the registration, classification, selection and delivery of registrants to the armed forces for\ntraining, (2) maintaining a current inventory of the manpower resources of the\nnation, and (3) such other duties and functions as may be required under authority\nof this Act.\xe2\x80\x9d The Legion bill would achieve essentially the same results through\nthe creation of a civilian commission which, among other duties, would \xe2\x80\x9cestablish\nin each county, or comparable political subdivision . . . one or more local\nboards . . . to make determinations with respect to the rights, privileges and\nobligations of individuals under this Act\xe2\x80\x9d; to \xe2\x80\x9ccall and register\xe2\x80\x9d; and to \xe2\x80\x9ckeep\ncurrent information with respect to the registration status and training status, of all\nindividuals residing within their respective jurisdictions who are required to\nundergo training.\xe2\x80\x9d\nThe Army and Legion bills, equally, though with differences as to detail, include provision for hospitalization, surgical, medical and dental services; insurance and dependency allowances; and a small monthly \xe2\x80\x9ccompensation.\xe2\x80\x9d Each bill\nmakes special provisions for conscientious objectors. Each provides substantial\npenalties for failure to comply with its requirements.\nIn these aspects, the two proposals resemble closely the patterns of the Selective Draft Act of 1917 (Pub. L. No. 65-12, 40 Stat. 76) and the Selective Training\nand Service Act of 1940 (Pub. L. No. 76-783, 54 Stat. 885). In other respects,\nhowever, the two bills diverge from the earlier patterns. The trainees are not\navailable for combat service. And, unlike the situation in the past, when drafted\nmen became an integral part of the Army once they were inducted and accepted\n(section 1 of the National Defense Act of 1916, Pub. L. No. 64-85, \xc2\xa7 1, 39 Stat.\n166, 166, as amended by section 3 of the Act of December 13, 1941, Pub. L. No.\n77-338, \xc2\xa7 3, 55 Stat. 799, 800, codified at 10 U.S.C. \xc2\xa7 2; cf. Patterson v. Lamb,\n329 U.S. 539 (1947)), the trainees under these bills would not become full-fledged\nmembers of the Army or Navy, though in some respects they would have like\nrights and obligations.\nThus, the Army bill provides for \xe2\x80\x9ctraining for duty with the Armed Forces of\nthe United States\xe2\x80\x9d and adds that \xe2\x80\x9cupon successful completion of one full year\xe2\x80\x99s\ntraining in the Corps or the equivalent of one year\xe2\x80\x99s training as provided in Section\n101 of this Act, trainees will not be subject to further compulsory military training\nor service, but will revert to full civilian status, and as such are liable to call for\nfurther training or service as members of the armed forces only during a national\nemergency expressly declared by Congress or by the President.\xe2\x80\x9d \xe2\x80\x9cTrainees,\xe2\x80\x9d the\nbill provides, \xe2\x80\x9cshall be inducted . . . only for training.\xe2\x80\x9d\n\n18\n\n\x0cAuthority to Establish System of Universal Military Training\n\nThe Legion bill provides for a National Security Training Corps, to be composed of individuals \xe2\x80\x9cundergoing military or related training under this Act\notherwise than as (a) members of the Regular Military or Naval Establishment or\nany of the reserve components thereof, (b) the Reserve Officers Training Corps, or\n(c) Cadets at the United States Military Academy, Coast Guard Academy, or\nMerchant Marine Academies, or midshipmen at the United States Naval Academy.\xe2\x80\x9d \xe2\x80\x9cEvery individual who undergoes training under this Act and, in the\njudgment of those in authority over him, satisfactorily completes such training\nshall be entitled to a certificate to that effect, which shall include a record of any\nspecial proficiency or merit attained.\xe2\x80\x9d\nII.\nThe constitutionality of either of the above programs if enacted into law by the\nCongress is best tested by an examination of the selective draft and selective\ntraining and service legislation of World Wars I and II. The pertinent provisions of\nthe Constitution lie in Section 8 of Article I:\nThe Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States; . . .\nTo declare War . . . ;\nTo raise and support Armies, but no Appropriation of Money to that\nUse shall be for a longer Term than two Years;\nTo provide and maintain a Navy;\nTo make Rules for the Government and Regulation of the land and\nnaval Forces; . . .\nTo make all Laws which shall be necessary and proper for carrying\ninto Execution the foregoing Powers . . . .\nThat these enumerated powers were ample to sustain the Selective Draft Act of\n1917 was definitely and firmly established in the Selective Draft Law Cases, 245\nU.S. 366 (1918). There the constitutionality of the statute, which was attacked\nfrom every standpoint, was sustained by a unanimous Supreme Court. The opinion\nis too long even to be summarized, but it is rested, basically, on the congressional\npower to raise and support armies; and it is significant that Chief Justice White,\nwho spoke for the Court, said:\nIt may not be doubted that the very conception of a just government\nand its duty to the citizen includes the reciprocal obligation of the\n\n19\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ncitizen to render military service in case of need and the right to\ncompel it.\nId. at 378.\nSo comprehensive and powerful was the opinion in the Selective Draft Law\nCases that when Congress enacted the Selective Training and Service Act of 1940\nmore than 14 months prior to the entry of the United States into World War II, the\nonly new point which it was possible to raise was the circumstance that this\nsecond act had been passed when the United States was at peace. The argument\nagainst the statute was that Congress lacked power to draft the nation\xe2\x80\x99s manpower\nfor military training and service prior to an actual declaration of war.\nThat contention was consistently rejected by the courts. The constitutionality of\nthe Selective Training and Service Act of 1940, as applied prior to and after the\ndeclaration of war, was sustained in every federal court that passed upon it. See\nUnited States v. Lambert, 123 F.2d 395 (3d Cir. 1941); United States v. Herling,\n120 F.2d 236 (2d Cir. 1941) (per curiam); United States v. Rappeport, 36 F. Supp.\n915 (S.D.N.Y. 1941); Stone v. Christensen, 36 F. Supp. 739 (D. Or. 1940); United\nStates v. Cornell, 36 F. Supp. 81 (D. Idaho 1940); United States v. Garst, 39\nF. Supp. 367 (E.D. Pa. 1941).\nThe Court of Appeals for the Third Circuit in Lambert flatly answered the\ncontention that Congress could not provide measures of manpower mobilization in\ntime of peace. The court said:\nThe power granted to Congress by the Constitution to \xe2\x80\x9cprovide for\nthe common Defence\xe2\x80\x9d and \xe2\x80\x9cto raise and support Armies\xe2\x80\x9d is not to be\ninterpreted in a way which will make the power ineffective against\nan enemy, actual or potential. We are not precluded from preparing\nfor battle, if battle must come, until such time as our preparation\nwould be too late.\n123 F.2d at 396.\nWhile the precise question was never passed upon by the Supreme Court, the\nopinion in the Selective Draft Law Cases and the language of the Court in\ndiscussing that decision and in dealing generally with the war power make it\nperfectly clear that the power of Congress to raise armies by selective draft even\nprior to the declaration of war cannot be successfully challenged. See, e.g., N. Pac.\nRy. Co. v. North Dakota, 250 U.S. 135, 149\xe2\x80\x9350 (1919); United States v. Williams,\n302 U.S. 46, 48 (1937); United States v. Bethlehem Steel Corp., 315 U.S. 289, 305\n(1942); W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 n.19 (1943); Hirabayashi v. United States, 320 U.S. 81, 93 (1943). It is significant, in my judgment,\nthat no litigant in any case heard on the merits in the Supreme Court ever questioned the pre-Pearl Harbor application of the 1940 Selective Service Act.\n\n20\n\n\x0cAuthority to Establish System of Universal Military Training\n\nIII.\nIs, then, the plan, as embodied either in the Army bill or the Legion bill, sufficiently close, in type and purpose, to those embodied in the Acts of 1917 and\n1940, and would the circumstances of enactment be deemed sufficiently similar, to\nwarrant the conclusion that such legislation would be constitutional? I have no\ndoubt these questions should be answered in the affirmative.\nI wish to point, first of all, to the contemplated legislative findings.\nThe Army bill provides:\nThat (a) Congress hereby declares that in keeping with the fundamental objective to provide for the common defense expressed in the\npreamble to the Constitution of the United States, and in order to assure the peace and security of future generations, it is a sound and\ndemocratic principle that each physically and mentally fit male citizen and alien residing in the United States, owes an obligation to this\ncountry to undergo military training which will fit him to protect it in\nan emergency; That adequate preparedness will prevent aggressive\nwars against this country and the needless sacrifice of human life;\nThat a well trained citizenry is the keystone of preparedness, and that\nsuch preparedness can best be assured through a system of military\ntraining for the youth of the nation; That it is essential to maintain an\nalert and trained citizenry capable of prompt mobilization to meet\nand deal with any national emergency as is declared by the Congress.\n(b) That Congress further declares that in a free society the obligations and privileges of military training should be shared universally\nin accordance with a fair and just system of selection.\nIn the Legion bill,\nCongress hereby declares\n(1) That to provide the common defense for which the Constitution\nof the United States was ordained and established every male citizen\nof the United States and every other male person residing in the\nUnited States owes to our country an obligation to undergo training\nwhich will fit him to contribute to its protection in time of emergency;\n(2) That adequate preparedness will prevent wars against this country and the needless sacrifice of human life; and\n\n21\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n(3) That a citizenry trained for defense is the bulwark of democracy\nand the keystone of preparedness and can best be assured through\nyouth training for national security.\nThe design under both the Army bill and the Legion bill falls short of the full\nsystem of induction and training embodied in legislation previously upheld by the\ncourts. This does not operate to invalidate either proposal. The Supreme Court, in\nthe Selective Draft Law Cases, made it clear that \xe2\x80\x9c[b]ecause the power of Congress to raise armies was not required to be exerted to its full limit but only as in\nthe discretion of Congress it was deemed the public interest required, furnishes no\nground for supposing that the complete power was lost by its partial exertion.\xe2\x80\x9d 245\nU.S. at 383\xe2\x80\x9384.\nThe events of the past decade have amply demonstrated that it is too late to\nimprovise armies when war starts or is declared\xe2\x80\x94the latter generally after the\nattack has started and the enemy invasion is well under way. And the latest\nscientific developments foreshadow a time when an even shorter period of grace\nwill be available to nations whose peaceable intentions and limitless resources\ninvite aggressive action from without. Chief Justice Hughes has pointed out that\nthe war power of the federal government is the \xe2\x80\x9cpower to wage war successfully.\xe2\x80\x9d\nHome Bldg. & Loan Ass\xe2\x80\x99n v. Blaisdell, 290 U.S. 398, 426 (1934). The power to\n\xe2\x80\x9cprovide for the common Defense\xe2\x80\x9d must be the power to provide in time of peace\nfor the protection of the Nation. \xe2\x80\x9cIn time of peace prepare for war\xe2\x80\x9d is not only\ngood sense, it is also sound constitutional law.\nBoth the necessity for action and the kind of action to be taken must be determined by the Congress. I do not hesitate to say that if Congress enacts legislation\nalong the lines of either of these two proposals, supported by appropriate declarations of policy and findings of fact, such legislation would in my opinion be well\nwithin the constitutional powers of the federal government.\nTOM C. CLARK\nAttorney General\n\n22\n\n\x0c'


b'Applicability of the Emoluments Clause to\nNon-Government Members of ACUS ( II )\nA nongovernmental member of the Administrative Conference of the United States does\nnot occupy an office of profit or trust within the meaning of the Emoluments Clause.\nJune 3, 2010\n\nMEMORANDUM OPINION FOR THE CHAIRMAN\nADMINISTRATIVE CONFERENCE OF THE UNITED STATES\nThis memorandum responds to your request that we reconsider our\n1993 opinion that the nongovernmental members of the Administrative\nConference of the United States (\xe2\x80\x9cACUS\xe2\x80\x9d or \xe2\x80\x9cthe Conference\xe2\x80\x9d) hold an\n\xe2\x80\x9cOffice of . . . Trust\xe2\x80\x9d within the meaning of the Emoluments Clause of\nthe Constitution, Article I, Section 9, Clause 8. See Memorandum for\nDavid J. Barron, Acting Assistant Attorney General, Office of Legal\nCounsel, from Paul R. Verkuil, Chairman, ACUS (May 18, 2010)\n(\xe2\x80\x9cVerkuil Memorandum\xe2\x80\x9d); see also Applicability of the Emoluments\nClause to Non-Government Members of ACUS, 17 Op. O.L.C. 114 (1993)\n(\xe2\x80\x9cACUS I \xe2\x80\x9d). The Clause forbids anyone \xe2\x80\x9cholding any Office of Profit or\nTrust\xe2\x80\x9d under the United States from accepting, without congressional\nconsent, \xe2\x80\x9cany present, Emolument, Office, or Title, of any kind whatever,\nfrom any King, Prince, or foreign State.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9, cl. 8.\nSince the issuance of our 1993 opinion, our Office has addressed the\napplicability of the Emoluments Clause to members of advisory committees in four published opinions, and in none of these have we concluded\nthat the Clause was implicated. 1 In light of this subsequent guidance, we\nnow confirm and further explain the oral advice we recently provided that\n\n1 See Application of the Emoluments Clause to a Member of the Federal Bureau of\nInvestigation Director\xe2\x80\x99s Advisory Board, 31 Op. O.L.C. 154 (2007) (\xe2\x80\x9cFBI Advisory\nBoard\xe2\x80\x9d); Application of the Emoluments Clause to a Member of the President\xe2\x80\x99s Council\non Bioethics, 29 Op. O.L.C. 55 (2005) (\xe2\x80\x9cBioethics Council\xe2\x80\x9d); Applicability of Emoluments\nClause to \xe2\x80\x9cRepresentative\xe2\x80\x9d Members of Advisory Committees, 21 Op. O.L.C. 176 (1997)\n(\xe2\x80\x9cRepresentative Members\xe2\x80\x9d); The Advisory Committee on International Economic Policy,\n20 Op. O.L.C. 123 (1996) (\xe2\x80\x9cIEP\xe2\x80\x9d).\n\n181\n\n\x0c34 Op. O.L.C. 181 (2010)\n\na nongovernmental member of ACUS does not occupy an office of profit\nor trust within the meaning of the Emoluments Clause. 2\nI.\nACUS was established in 1964 to develop recommendations to improve the efficiency and fairness of federal agencies. Among its stated\npurposes is to \xe2\x80\x9cprovide suitable arrangements through which Federal\nagencies, assisted by outside experts, may cooperatively study mutual\nproblems, exchange information, and develop recommendations for\naction by proper authorities to the end that private rights may be fully\nprotected and regulatory activities and other federal responsibilities may\nbe carried out expeditiously in the public interest.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 591(1)\n(2006); see also ACUS I , 17 Op. O.L.C. at 114 \xe2\x80\x9316 (describing background and structure of ACUS). Although agencies are not compelled to\nfollow ACUS\xe2\x80\x99s recommendations, several of ACUS\xe2\x80\x99s studies have had a\nsignificant influence on administrative law over the years. See Marshall\nJ. Breger, The Administrative Conference of the United States: A Quarter\nCentury Perspective, 53 U. Pitt. L. Rev. 813, 831 (1992) (\xe2\x80\x9cBreger\xe2\x80\x9d).\nCongress has also, from time to time, assigned ACUS to study and formulate recommendations as to particular issues, see ACUS I , 17 Op. O.L.C.\nat 117 n.3 (citing several examples). Nonetheless, we are not aware of any\ninstance in which ACUS\xe2\x80\x99s role has been anything but advisory in nature. See Verkuil Memorandum at 2 (characterizing these statutory\nassignments as involving \xe2\x80\x9cpurely consultative, research, or reporting\nroles\xe2\x80\x9d).\nAlthough Congress created ACUS in 1964, the \xe2\x80\x9cidea of a governmentsponsored organization which reviews and recommends improvements in\nagency procedures\xe2\x80\x9d dates back to a 1949 report of the Judicial Conference\nof the United States suggesting that the President convene such a body.\nSee Breger, 53 U. Pitt. L. Rev. at 814\xe2\x80\x9315. In 1953, President Eisenhower\nestablished a temporary Conference on Administrative Procedure, which\n\n2 Nothing in this opinion should be viewed as expressing our views on any aspect of\nour 1993 opinion other than the narrow legal issue regarding the applicability of the\nEmoluments Clause to the nongovernmental members of ACUS.\n\n182\n\n\x0cApplicability of the Emoluments Clause to Non-Government Members of ACUS ( II )\n\nconsisted of representatives of federal agencies and several private-sector\nlawyers with expertise in administrative law. Id.\nPresident Kennedy in 1961 convened a second temporary conference\ncalled the Administrative Conference of the United States, to recommend\nimprovements regarding administrative procedure. This 1961 predecessor\nto ACUS was led by a Chairman, and its members consisted not only of\nfederal agency officials but also of members of the public. See Exec.\nOrder No. 10934, \xc2\xa7 1, 3 C.F.R. 464 (1959\xe2\x80\x9363). As President Kennedy\xe2\x80\x99s\nExecutive Order establishing the 1961 Conference stated, \xe2\x80\x9c[m]embers of\nthe Conference who are not in Government service shall participate in the\nactivities of the Conference solely as private individuals without official\nresponsibility on behalf of the Government of the United States.\xe2\x80\x9d Id. \xc2\xa7 3.\nAfter several years and six plenary sessions, President Kennedy\xe2\x80\x99s conference issued thirty recommendations regarding administrative procedure,\none of which was to establish a permanent Administrative Conference.\nSee Breger, 53 U. Pitt. L. Rev. at 817\xe2\x80\x9318.\nIn 1964, Congress did just that. See Pub. L. No. 88-499, 78 Stat. 615;\nsee also S. Rep. No. 88-621, at 4 (1963) (noting the statute \xe2\x80\x9cwould establish a permanent Administrative Conference of the United States\xe2\x80\x9d). In\ncreating a permanent body, Congress replicated the 1961 Conference\xe2\x80\x99s\nlimited advisory role of developing recommendations for improving\nagency procedure. S. Rep. No. 88-621, at 5 (\xe2\x80\x9cThe basic powers of the\nConference would be to study problems and make recommendations. It\nwould have no power whatever to enforce such recommendations.\xe2\x80\x9d). In\naddition, Congress established a structure much like the one that President Kennedy had established. The Conference consists of not more than\n101 or fewer than 75 governmental and nongovernmental members,\nincluding a Chairman and a Council. 5 U.S.C. \xc2\xa7 593(a); see also id.\n\xc2\xa7 595(a) (noting that when meeting in plenary session, the Conference\xe2\x80\x99s\nmembers along with the Chairman and the Council are known as \xe2\x80\x9cthe\nAssembly of the Conference\xe2\x80\x9d). ACUS\xe2\x80\x99s Chairman is appointed by the\nPresident for a five-year term, with the advice and consent of the Senate.\nId. \xc2\xa7 593(b)(1). The Council is composed of the Chairman and ten other\ngovernmental and nongovernmental members, and the latter ten members\nare appointed for three-year terms by the President (without Senate\ninvolvement). Id. \xc2\xa7 595(b) (2006). Congress specified that \xe2\x80\x9cnot more\n183\n\n\x0c34 Op. O.L.C. 181 (2010)\n\nthan one-half [of the Council\xe2\x80\x99s members] shall be employees of Federal\nregulatory agencies or Executive Departments.\xe2\x80\x9d Id.\nTogether, the Chairman and the Council manage several critical aspects\nof the Conference\xe2\x80\x99s operations, including the selection of a portion of the\nConference\xe2\x80\x99s membership. Specifically, the Chairman may appoint to the\nConference, with the Council\xe2\x80\x99s approval, not more than forty nongovernmental members for two-year terms in addition to certain government\nofficials who are required to serve on ACUS. Id. \xc2\xa7 593(b)(6) (\xe2\x80\x9c[T]he\nnumber of members appointed by the Chairman may at no time be less\nthan one-third nor more than two-fifths of the total numbers of members.\xe2\x80\x9d). These nongovernmental members are selected by the Chairman to\n\xe2\x80\x9cprovide [a] broad representation of the views of private citizens and [to]\nutilize diverse experiences.\xe2\x80\x9d Id. (\xe2\x80\x9cThe [nongovernmental] members shall\nbe members of the practicing bar, scholars in the field of administrative\nlaw or government, or others specially informed by knowledge and experience with respect to Federal administrative procedure.\xe2\x80\x9d).\nACUS ceased operations on October 31, 1995, but in 2004 Congress\nauthorized funds for ACUS, Pub. L. No. 108-401, \xc2\xa7 2(a), 118 Stat. 2255,\nalthough no funds were appropriated before the expiration of the authorization period. In 2008, Congress reauthorized ACUS, Pub. L. No. 110290, \xc2\xa7 2, 122 Stat. 2914, which began operations on March 11, 2009, with\nthe passage of the omnibus appropriations statute, Pub. L. No. 111-8, 123\nStat. 524.\nII.\nIn 1993 our Office advised that the Emoluments Clause applied to the\nnongovernmental members of ACUS. ACUS I , 17 Op. O.L.C. at 117.\nMore specifically, given that ACUS\xe2\x80\x99s nongovernmental members were\nnot paid for their services to the Conference, we concluded that they\noccupied an \xe2\x80\x9cOffice of . . . Trust\xe2\x80\x9d (and not an office of profit) within the\nmeaning of the Emoluments Clause. Id. We reached this conclusion for\nseveral reasons. First, we noted that ACUS was a \xe2\x80\x9cFederal agency established by statute.\xe2\x80\x9d Id. Second, although we acknowledged that ACUS\nwas an advisory committee as well as an agency, we cited our then prevailing view that \xe2\x80\x9c\xe2\x80\x98Federal advisory committee members hold offices of\nprofit or trust within the meaning of the Emoluments Clause.\xe2\x80\x99\xe2\x80\x9d Id. (quot184\n\n\x0cApplicability of the Emoluments Clause to Non-Government Members of ACUS ( II )\n\ning Applicability of 18 U.S.C. \xc2\xa7 219 to Members of Federal Advisory\nCommittees, 15 Op. O.L.C. 65, 68 (1991) (\xe2\x80\x9cSection 219 \xe2\x80\x9d)). Third, we\nnoted that the Conference\xe2\x80\x99s advice and recommendations \xe2\x80\x9chave had (and\nwere intended to have) a significant effect on the Government\xe2\x80\x99s administrative processes.\xe2\x80\x9d Id. Finally, we observed that \xe2\x80\x9cunder the Conference\xe2\x80\x99s own by-laws, its members may be considered to be special government employees subject to Federal conflict of interest statutes and\nregulations.\xe2\x80\x9d Id.\nSubsequent Office precedent, however, has undermined the rationale\nfor our 1993 opinion\xe2\x80\x99s conclusion that nongovernmental members of\nACUS are subject to the Emoluments Clause. Cf. Representative Members, 21 Op. O.L.C. at 176 \xe2\x80\x9377 (disavowing prior OLC opinion because\nof subsequent \xe2\x80\x9crefinements to our position\xe2\x80\x9d and because the opinion led\nto results that were \xe2\x80\x9cexceedingly incongruous\xe2\x80\x9d with intervening opinions\nof the Office). While we have previously characterized the Emoluments\nClause as broad in scope, see, e.g., Applicability of the Emoluments\nClause to Employment of Government Employees by Foreign Public\nUniversities, 18 Op. O.L.C. 13, 17\xe2\x80\x9318 (1994), the text of the Clause also\nmakes clear that it applies only to a specified class of persons\xe2\x80\x94i.e., those\nwho hold offices of profit or trust under the United States\xe2\x80\x94and not to all\npositions in the United States government. Consistent with that textual\nlimitation, our precedents since our ACUS I opinion have endeavored to\ngive substance to that category.\nIn accord with this textual limitation, we have receded from the view,\nset forth in our Section 219 opinion, that all federal advisory committee\nmembers hold offices of profit or trust within the meaning of the Emoluments Clause. Indeed, only months after issuing our ACUS I opinion, we\nadvised that this categorical position, on which the ACUS I opinion itself\nappeared to rely in part, was \xe2\x80\x9coverbroad\xe2\x80\x9d and that \xe2\x80\x9cnot every member of\nan advisory committee necessarily occupies an \xe2\x80\x98Office of Profit or Trust\xe2\x80\x99\nunder the Clause.\xe2\x80\x9d Letter for Conrad K. Harper, Legal Adviser, Department of State, from Walter Dellinger, Assistant Attorney General, Office\nof Legal Counsel (Mar. 1, 1994). In a subsequent published opinion, we\ncharacterized that same conclusion in our Section 219 opinion as \xe2\x80\x9csweeping and unqualified,\xe2\x80\x9d and specifically determined that members of an\nadvisory committee established by the Department of State were not\n185\n\n\x0c34 Op. O.L.C. 181 (2010)\n\nsubject to the Emoluments Clause on the basis of a multi-factor test. See\nIEP, 20 Op. O.L.C. at 123. Under that test, we noted that the members of\nthe committee were not subject to the Clause because they \xe2\x80\x9cmeet only\noccasionally, serve without compensation, take no oath, and do not have\naccess to classified information,\xe2\x80\x9d and that \xe2\x80\x9cthe Committee is purely\nadvisory, is not a creature of statute, and discharges no substantive statutory responsibilities.\xe2\x80\x9d Id.\nIn addition, on two later occasions, we concluded in published opinions\nthat members of other advisory bodies were not subject to the prohibitions\nof the Emoluments Clause. In 2005, based on an extensive historical\nanalysis of the phrase \xe2\x80\x9cOffice of Profit or Trust,\xe2\x80\x9d we advised that the\nClause did not apply to members of the President\xe2\x80\x99s Council on Bioethics\nbecause that Council was \xe2\x80\x9cpurely advisory\xe2\x80\x9d in nature. See Bioethics\nCouncil, 29 Op. O.L.C. at 73; id. at 70 (noting that our conclusion was\n\xe2\x80\x9cgenerally consistent\xe2\x80\x9d with our Office\xe2\x80\x99s 1996 opinion regarding the State\nDepartment\xe2\x80\x99s Advisory Committee on International Economic Policy).\nWe stated that to qualify as an office within the meaning of the Constitution, a position must \xe2\x80\x9cat least involve some exercise of governmental\nauthority, and an advisory position does not.\xe2\x80\x9d Id. at 10. Two years later,\nwe advised that the Emoluments Clause did not apply to a board charged\nwith providing advice to the FBI Director on improving the FBI\xe2\x80\x99s operations because that Board served a purely advisory function. FBI Advisory\nBoard, 31 Op. O.L.C. at 154 (\xe2\x80\x9cThe sole role of the Board is to advise the\nDirector, who is free to adopt, modify, or ignore its recommendations.\nBoard members have no decisional or enforcement authority, and they\nexercise no supervisory responsibilities over other persons or employees\nas a result of their positions on the Board.\xe2\x80\x9d).\nOur Bioethics Council and FBI Advisory Board opinions go further\nthan our IEP opinion and indicate that only those persons considered\nofficers within the meaning of the Appointments Clause, U.S. Const.\nart. II, \xc2\xa7 2, may be subject to the Emoluments Clause, see, e.g., FBI Advisory Board, 31 Op. O.L.C. at 156 (\xe2\x80\x9cThe threshold question . . . in determining whether a member of the Board holds an \xe2\x80\x98Office of Profit or\nTrust under [the United States]\xe2\x80\x99 is whether a position on the Board is an\n\xe2\x80\x98Office under the United States\xe2\x80\x99\xe2\x80\x9d); Bioethics Council, 29 Op. O.L.C. at 71\n(\xe2\x80\x9cA position that carried with it no governmental authority (significant or\n186\n\n\x0cApplicability of the Emoluments Clause to Non-Government Members of ACUS ( II )\n\notherwise) would not be an office for purposes of the Appointments\nClause, and therefore, under that analysis, would not be an office under\nthe Emoluments Clause\xe2\x80\x9d), a conclusion that plainly would foreclose\napplication of the Emoluments Clause here, given the purely advisory\nfunctions of ACUS. But, for present purposes, we need not rest our decision on that ground. Because our Office had rejected the \xe2\x80\x9csweeping and\nunqualified\xe2\x80\x9d view that all advisory bodies are subject to the Emoluments\nClause, IEP, 20 Op. O.L.C. at 123, even before it had issued opinions\nsuggesting that only those persons who were officers for purposes of the\nAppointments Clause were subject to the Emoluments Clause, it suffices\nto observe that, under the precedents issued since we decided ACUS I , the\nnature of this advisory body is such that its nongovernmental members\ncannot be deemed to hold the kind of office to which the Emoluments\nClause applies.\nIn particular, the same factors that led us to conclude in our IEP opinion that the advisory committee for the State Department was not subject\nto the Emoluments Clause also lead to us to conclude that the nongovernmental members of ACUS, itself a purely advisory body, are not\nsubject to it. See IEP, 20 Op. O.L.C. at 123 (setting out multiple factors\nindicating that particular advisory body was not subject to the Clause).\nSuch a conclusion best accords with our Office\xe2\x80\x99s now substantial precedents giving substance to the Emoluments Clause through a careful explication of its proper scope, so as to ensure that concerns about foreign\ncorruption and influence are accounted for with respect to the types of\n\xe2\x80\x9cOffice[s]\xe2\x80\x9d that the Clause was meant to cover in identifying \xe2\x80\x9cOffice[s] of\nProfit or Trust.\xe2\x80\x9d\nFirst, as was the case with the committee at issue in our IEP opinion,\nACUS\xe2\x80\x99s nongovernmental members serve without compensation, 5 U.S.C.\n\xc2\xa7 593(c) (2006) (\xe2\x80\x9cMembers of the Conference, except the Chairman, are\nnot entitled to pay for service.\xe2\x80\x9d), and meet only on an occasional basis. By\nlaw, the Conference as a whole (i.e., the Chairman, the Council, and\nACUS\xe2\x80\x99s governmental and nongovernmental members) is required to\nmeet for \xe2\x80\x9cat least one plenary session each year,\xe2\x80\x9d id. \xc2\xa7 595(b)(1), and we\nunderstand that the practice was to convene two such sessions a year.\nACUS\xe2\x80\x99s Council has in the past typically met only five to six times a\nyear. See E-mail for Daniel L. Koffsky, Deputy Assistant Attorney Gen187\n\n\x0c34 Op. O.L.C. 181 (2010)\n\neral, from Paul R. Verkuil, Chairman, ACUS (May 28, 2010 8:40 AM)\n(\xe2\x80\x9cVerkuil E-mail\xe2\x80\x9d). In addition, most ACUS members also participate in\nvarious subject matter committees, which in the past have held four or\nfive meetings a year. See 1 C.F.R. \xc2\xa7 302.3 (1995) (listing ACUS\xe2\x80\x99s standing committees). By any measure, then, the nongovernmental members of\nACUS \xe2\x80\x9cmeet only occasionally.\xe2\x80\x9d IEP, 20 Op. O.L.C. at 123.\nTo support the application of the Emoluments Clause, our 1993 opinion\ndid point to the status of ACUS\xe2\x80\x99s members as special government employees (\xe2\x80\x9cSGEs\xe2\x80\x9d) subject to federal conflict of interest statutes and regulations. See ACUS I , 17 Op. O.L.C. at 117. Advisory committee members\noften have that status, however, and subsequent opinions of this Office\nmake clear that this factor is far from determinative. See IEP, 20 Op.\nO.L.C. at 123 (concluding that advisory body members were not subject\nto the Emoluments Clause notwithstanding their SGE status); see also\nRepresentative Members, 21 Op. O.L.C. at 177 (\xe2\x80\x9cspecial government\nemployees on some advisory committees do not occupy offices of profit\nor trust\xe2\x80\x9d).\nMoreover, as was also the case with the committee members at issue in\nIEP, 20 Op. O.L.C. at 123, neither the statutes nor the bylaws governing\nACUS indicate that its nongovernmental members would be given access\nto classified information. See Verkuil Memorandum at 5 n.7 (\xe2\x80\x9cI cannot\nforesee any likelihood that nongovernmental members of ACUS would\nrequire . . . access [to classified information] in the performance of their\nrole with ACUS, particularly because ACUS is barred by statute from\naddressing \xe2\x80\x98a military or foreign affairs function of the United States.\xe2\x80\x99\xe2\x80\x9d\n(quoting 5 U.S.C. \xc2\xa7 592(1))). It is the case that, unlike the committee\nmembers in IEP, the nongovernmental members of ACUS have traditionally taken oaths of office. See Verkuil E-mail. We are uncertain how\nlongstanding this practice is, however, and, we understand that, in contrast to the requirements of several other federal agencies, ACUS\xe2\x80\x99s nongovernmental members are not required to take an oath by either organic\nstatute or governing regulations. Cf. 12 U.S.C. \xc2\xa7 242 (2006) (requiring\nmembers of the Board of Governors of the Federal Reserve System to\n\xe2\x80\x9cmake and subscribe to the oath of office\xe2\x80\x9d); 16 U.S.C.A. \xc2\xa7 831g(c) (West\nSupp. 2010) (requiring Board members of the Tennessee Valley Authority\nto take an oath of office). Thus, while there is support for the notion that\n188\n\n\x0cApplicability of the Emoluments Clause to Non-Government Members of ACUS ( II )\n\nthe taking of an oath may in certain circumstances indicate a constitutional office, see, e.g., Floyd R. Mechem, A Treatise on the Law of Public\nOffices and Officers \xc2\xa7 6 (1890) (noting that \xe2\x80\x9cthe taking of the oath is not\nan indispensable criterion\xe2\x80\x9d of an office), for purposes of analyzing purely\nadvisory bodies, this factor is, in our view, not particularly weighty.\nWe have arguably indicated that supervisory or decisional control may\nbe of some relevance in determining the applicability of the Emoluments\nClause to an advisory body, cf. FBI Advisory Board, 31 Op. O.L.C. at 154\n(noting that the Board was not subject to the Emoluments Clause in part\nbecause its members \xe2\x80\x9chave no decisional . . . authority, and they exercise\nno supervisory responsibilities over other persons or employees as a result\nof their positions on the Board\xe2\x80\x9d), but even if that factor is relevant, it is\nnot significant here. The Council and the Assembly (i.e., ACUS\xe2\x80\x99s membership meeting in plenary session, 5 U.S.C. \xc2\xa7 595(a)) do appear to have\nauthority over certain limited decisions of the Chairman, see, e.g., id.\n\xc2\xa7 595(b)(7) (Council may \xe2\x80\x9capprove or revise the budgetary proposals of\nthe Chairman\xe2\x80\x9d); id. \xc2\xa7 595(c)(5) (Chairman may \xe2\x80\x9cappoint, with the approval of the Council, members of committees authorized by the bylaws\nand regulations of the Conference\xe2\x80\x9d); id. \xc2\xa7 595(c)(10) (Chairman may\n\xe2\x80\x9corganize and direct studies ordered by the Assembly or the Council\xe2\x80\x9d),\nbut nongovernmental members are likely to constitute only a minority of\nthe members of the Conference and the Council. By statute, no more than\ntwo-fifths of the Conference\xe2\x80\x99s general membership may consist of nongovernmental persons, 5 U.S.C. \xc2\xa7 593(b)(6), while ACUS\xe2\x80\x99s Council\nmay be composed of a majority of government officials. See id. \xc2\xa7 595(b)\n(permitting the appointment of up to five government officers, in addition\nto the Chairman, on the eleven-person Council). That Congress did not\nstructure ACUS to ensure a majority of nongovernmental members reinforces our view that such members were not vested (either individually or\ncollectively) with the type of discretion and authority that inheres in an\noffice of profit or trust within the meaning of the Emoluments Clause. In\nlight of ACUS\xe2\x80\x99s purely advisory function as well as its governance structure, we do not believe its nongovernmental members exercise the type of\nsupervisory power or decisional authority that would potentially be relevant to a conclusion that they are subject to the Emoluments Clause.\n\n189\n\n\x0c34 Op. O.L.C. 181 (2010)\n\nWe acknowledge that ACUS is established by statute and that we have\ncharacterized it as an \xe2\x80\x9cagency.\xe2\x80\x9d We emphasized these points in our 1993\nACUS I opinion, 17 Op. O.L.C. at 117, and appealed to it again in distinguishing our application of the Emoluments Clause to ACUS from our\nconclusion that the Clause did not apply to the President\xe2\x80\x99s Bioethics\nCouncil, which also exercised purely advisory functions, see Bioethics\nCouncil, 29 Op. O.L.C. at 70. In the latter opinion, we observed that\n\xe2\x80\x9cwhile nominally called an \xe2\x80\x98advisory committee,\xe2\x80\x99 [ACUS] was, in fact, a\n\xe2\x80\x98Federal agency established by statute\xe2\x80\x99 with certain statutorily assigned\npowers and functions.\xe2\x80\x9d Id.; see also IEP, 20 Op. O.L.C. at 123 (noting\nthat advisory panel was \xe2\x80\x9cnot a creature of statute\xe2\x80\x9d). In neither opinion,\nhowever, did we explain precisely why ACUS\xe2\x80\x99s status in this regard\nwould be significant to the analysis of whether ACUS\xe2\x80\x99s nongovernmental\nmembers are subject to the Emoluments Clause, and on reflection we do\nnot believe that it is.\nTo be sure, ACUS\xe2\x80\x99s policy recommendations may \xe2\x80\x9chave had (and were\nintended to have) a significant effect on the Government\xe2\x80\x99s administrative\nprocesses,\xe2\x80\x9d id., and our prior characterization of it as an \xe2\x80\x9cagency\xe2\x80\x9d is\nreflective of the importance of its mission. But this status ultimately does\nnot meaningfully distinguish ACUS from other similar advisory bodies,\nwhich also are established to play an important advisory role in the formulation of public policy. In our IEP opinion, for example, we did not\nsuggest the advisory committee at issue there was exempt from the Clause\nbecause its mission was unimportant, and the Office\xe2\x80\x99s consistent decisions\nsince 1993 have rejected the Clause\xe2\x80\x99s application to various advisory\ncommittees, even though they plainly had been charged with important\nmissions. Cf. FBI Advisory Board, 31 Op. O.L.C. at 154 (concluding that\nthe Advisory Board was not subject to the Clause, while noting that it was\ncharged with recommending to the FBI Director how the \xe2\x80\x9cFBI can more\neffectively exploit science and technology to improve its operations,\nparticularly its priorities of preventing terrorist attacks, countering foreign\nintelligence operations, combating cyber-based attacks, and strengthening\nthe FBI\xe2\x80\x99s collaboration with other federal law enforcement agencies.\xe2\x80\x9d).\nAnd the mere fact that ACUS is not within an otherwise established\nagency does not provide a sufficient basis for drawing a different conclusion. Not every position in a free-standing agency constitutes an office of\n190\n\n\x0cApplicability of the Emoluments Clause to Non-Government Members of ACUS ( II )\n\nprofit or trust within the meaning of the Emoluments Clause, and thus we\ndo not think that the entity\xe2\x80\x99s location within the federal government is\ndeterminative of whether ACUS\xe2\x80\x99s nongovernmental members are subject\nto the Clause.\nNor do we believe that the fact that ACUS was established by statute\ncompels the judgment that the Clause applies to that entity\xe2\x80\x99s nongovernmental members. Here, too, recent precedents of the Office are in direct\ntension with such a conclusion. For example, Congress by statute required\nthe FBI Director to establish a board to advise on certain matters, see Pub.\nL. No. 108-7, \xc2\xa7 109, 117 Stat. 11, 67 (2003), and yet we nevertheless\nconcluded that its members were not subject to the Emoluments Clause.\nFBI Advisory Board, 31 Op. O.L.C. at 154. Similarly, although statutes\ncreated both the purely advisory Board of Trustees of the Federal OldAge and Survivors Insurance Trust Fund and Federal Disability Insurance\nTrust Fund and the purely advisory Board of Trustees of the Federal\nHospital Trust Insurance Fund, see 42 U.S.C.A. \xc2\xa7 401(c) (West Supp.\n2009); 42 U.S.C. \xc2\xa7 910 (2006), we advised that the members of neither\nwere subject to the Emoluments Clause. See E-mail for John Elwood,\nDeputy Assistant Attorney General, Office of Legal Counsel, from Daniel\nL. Koffsky, Special Counsel, Office of Legal Counsel (Jan. 22, 2008,\n12:31 PM) (memorializing oral advice). But equally importantly, we do\nnot see why the fact that ACUS is established by statute matters here. The\nClause\xe2\x80\x99s underlying concerns with undue foreign influence and corruption\nwould seem, in principle, to be no more relevant with respect to the nongovernmental members of a purely advisory agency like ACUS that has\nbeen established directly by statute than they would be with respect to the\nnongovernmental members of an important advisory body that Congress\nhas by statute authorized an executive official to establish. Consistent\nwith this judgment, our precedents since 1993 provide no support for\nconcluding that the Clause applies whenever (as will often be the case) an\nadvisory committee\xe2\x80\x99s creation may be traced to a statute; indeed, these\nprecedents point against that conclusion in rejecting the \xe2\x80\x9csweeping and\nunqualified view\xe2\x80\x9d that all advisory committees are subject to the Clause.\nSee IEP, 20 Op. O.L.C. at 123. Thus, particularly given our Office\xe2\x80\x99s\nsubsequent precedents, we do not believe ACUS\xe2\x80\x99s status as a statutorily\ncreated entity, ACUS I , 17 Op. O.L.C. at 117, 123 n.10, provides suffi191\n\n\x0c34 Op. O.L.C. 181 (2010)\n\ncient ground to compel the application of the Emoluments Clause to\nACUS\xe2\x80\x99s nongovernmental members, even assuming that the Clause may\napply in some instances to persons who do not hold an office under the\nAppointments Clause.\nIII.\nFor the reasons given above, we conclude that the Emoluments Clause\ndoes not apply to the nongovernmental members of ACUS.\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n192\n\n\x0c'


b'Enforceability of Certain Agreements Between\nthe Department of the Treasury and\nGovernment-Sponsored Enterprises\nThe Amended and Restated Senior Preferred Stock Purchase Agreements between the United States\nDepartment of the Treasury and the Federal National Mortgage Association and the Federal Home\nLoan Mortgage Corporation, according to their terms, would create rights enforceable through\nactions brought in the United States Court of Federal Claims in accordance with the ordinary rules\nand procedures governing litigation in that Court.\n\nSeptember 26, 2008\n\nLETTER OPINION FOR THE SECRETARY OF THE TREASURY\nI am writing with regard to the Amended and Restated Senior Preferred Stock\nPurchase Agreements (\xe2\x80\x9cthe Agreements\xe2\x80\x9d) between the United States Department\nof the Treasury (\xe2\x80\x9cTreasury\xe2\x80\x9d), and the Federal National Mortgage Association and\nthe Federal Home Loan Mortgage Corporation, respectively (collectively the\n\xe2\x80\x9cGovernment-Sponsored Enterprises\xe2\x80\x9d or \xe2\x80\x9cGSEs\xe2\x80\x9d). You have asked for our view\nwhether the Agreements create enforceable rights against Treasury for certain\nholders of debt securities and beneficiaries of Mortgage Guarantee Obligations\nissued by the GSEs (collectively \xe2\x80\x9cthe Holders\xe2\x80\x9d). \xe2\x88\x97\nUnder the Agreements, following a payment default by a GSE with respect to\nany Holders, and in the event Treasury fails to perform its obligations to either of\nthe GSEs in respect of any draw on the Commitments, those Holders may file\nclaims in the United States Court of Federal Claims for relief requiring Treasury to\npay the relevant GSE a specified amount (called \xe2\x80\x9cthe Demand Amount\xe2\x80\x9d) in the\nform of liquidated damages. After consultation with the Civil Division of the\nDepartment of Justice, we conclude that the United States Court of Federal Claims\ngenerally would have jurisdiction under the Tucker Act to entertain claims brought\nby the Holders for liquidated damages, payable to a GSE, according to the terms\nof the Agreements, if Treasury failed to perform its obligation under the Agreements to fund the Commitment in the event of a payment default by the GSE to\nthe Holders. The general jurisdictional provision of the Tucker Act, section\n1491(a)(1) of title 28 of the United States Code, authorizes the Court of Federal\nClaims \xe2\x80\x9cto render judgment upon any claim against the United States founded\xe2\x80\x9d on,\namong other bases, \xe2\x80\x9cany express . . . contract with the United States, or for\nliquidated . . . damages in cases not sounding in tort.\xe2\x80\x9d A Holder\xe2\x80\x99s claim against\nTreasury for liquidated damages, payable to a GSE, under the Agreements falls\nwithin the general scope of section 1491(a)(1). It is established that the Court of\nFederal Claims has jurisdiction under section 1491(a)(1) to hear a breach of\n\xe2\x88\x97\nAny capitalized terms used but not defined in this letter opinion have the meanings set forth in the\nAgreements.\n\n127\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\ncontract claim brought by a properly authorized party for payment of damages\nowed to a corporation. See First Hartford Corp. Pension Plan & Trust v. United\nStates, 194 F.3d 1279, 1293\xe2\x80\x9394 (Fed. Cir. 1999). Accordingly, the Court of\nFederal Claims generally would have jurisdiction under this provision of the\nTucker Act to hear such claims by Holders. Because the Tucker Act constitutes\nexpress statutory consent to the award of monetary relief against the United States,\nthe sovereign immunity of the United States would not be a bar to any such claim.\nSee United States v. Mitchell, 463 U.S. 206, 212 (1983) (\xe2\x80\x9c[T]he Tucker Act\nconstitutes a waiver of sovereign immunity.\xe2\x80\x9d); Adair v. United States, 497 F.3d\n1244, 1250 (Fed. Cir. 2007) (Tucker Act \xe2\x80\x9cwaives the government\xe2\x80\x99s sovereign\nimmunity for these claims\xe2\x80\x9d).\nWe therefore conclude that the Agreements, according to their terms, would\ncreate rights enforceable through actions brought in the Court of Federal Claims in\naccordance with the ordinary rules and procedures governing litigation in that\nCourt.\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n128\n\n\x0c'