b'Jurisdiction and Procedure of the Office of the\nAssistant Solicitor General\nThis memorandum summarizes the authorities and internal operating rules for the Office of the\nAssistant Solicitor General, the predecessor entity within the Department of Justice to the Office of\nLegal Counsel. Although the litigation functions have largely been shifted to other components,\nmany of the other practices and procedures described in this memorandum (in particular, preparation\nof opinions and review of executive orders) remain in place to the present day.\n\nJune 1, 1939\n\nMEMORANDUM FOR THE OFFICE OF THE ASSISTANT SOLICITOR GENERAL\nIn the belief that it will be of assistance to this office both now and in the future\nto have in written form an outline of its jurisdiction and procedure, I am setting\ndown the matters which now are assigned to it and the manner in which they are\nnow handled. Of course, hereafter the assignments to the office may be increased\nor decreased and it may be found advantageous to make changes in the present\nprocedure of the office; but a description of the present jurisdiction and practice\nwill be useful as a basis for future action\xe2\x80\x94particularly for successors to me and\nadditions to the staff of the office.\nI.\nProcedure in Handling Special Assignments\nThe act creating the office of the Assistant Solicitor General (Independent\nOffices Appropriation Act, 1934, Pub. L. No. 73-78, \xc2\xa7 16, 48 Stat. 283, 307\xe2\x80\x9308\n(June 16, 1933), codified at 5 U.S.C. \xc2\xa7 293a (1934)) provides that he is to assist\nthe Solicitor General in the performance of his duties and perform such additional\nduties as may be required of him by the Attorney General. By Departmental Order\n2507 of December 30, 1933, it was provided that the Department should consist,\namong others, of the Office of the Assistant Solicitor General, and its functions\nwere set forth in Exhibit A accompanying that order as:\n1. Such matters (including briefs and arguments in the Supreme\nCourt) as may be assigned by the Solicitor General.\n2. Executive orders.\n3. Compromises.\n4. Preparation of opinions.\n5. Special assignments by the Attorney General.\n\n421\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIt will be noted that divisions 1 and 5 comprehend assignments of any character\nupon which either the Attorney General or the Solicitor General desires assistance.\nDivisions 2 (which comprehends also proclamations), 3, and 4 are more specific\nand the procedure in handling those matters will be indicated under separate\nheadings. Because the assignments under 1 and 5 are so miscellaneous in character, it is impossible here to do more than mention some that are more or less\ntypical. In general the office procedure and mechanics indicated under the other\nheadings cover that applicable to these two.\nA standing assignment from the Solicitor General is the preparation of recommendations by this office to him for or against the taking of appeals from the\nUnited States Customs Court to the Court of Customs and Patent Appeals; this\nassignment will be handled under a separate heading hereafter. See infra Part VI.\nA standing assignment from the Attorney General is the handling of gifts,\nbequests, and devises to the United States, and this also will be handled under a\nseparate heading hereafter. See infra Part VII.\nIn April 1936 the Attorney General began sending to this office for its recommendation for or against allowance of claims presented under the Trading with the\nEnemy Act, as amended, for the return of property seized by the Alien Property\nCustodian during the World War. Since Executive Order 8136 of May 15, 1939, 3\nC.F.R. 500 (1938\xe2\x80\x931943), however, these claims rarely go through this office.\nActing Attorney General. By Departmental Order 2860 of June 20, 1936, the\nAssistant Solicitor General is Acting Attorney General in the absence of the\nAttorney General and the Assistant Attorneys General.\nActing Solicitor General. By Departmental Order 2869 of July 7, 1936, in the\nabsence of the Solicitor General, the Assistant Solicitor General is Acting Solicitor\nGeneral.\nSupreme Court Cases. From time to time the Solicitor General may assign to\nthis office the preparation and argument of cases in the Supreme Court. Generally\nthe briefs in such cases have been prepared in the division which has handled them\nin the lower courts and reviewed by a member of the Solicitor General\xe2\x80\x99s staff.\nSometimes opportunity is afforded in cases assigned to the Assistant Solicitor\nGeneral for argument to revise the briefs before they are printed, in which event\nthis office makes such changes as it deems desirable if approved by the Solicitor\nGeneral. The Assistant Solicitor General argues the cases personally unless\nassigned by the Solicitor General to a member of the staff of this office. He is\nassisted in the preparation for argument by such members of the staff of this office\nor of that of the Solicitor General\xe2\x80\x99s as he may call upon.\nIntradepartmental Opinions. Requests frequently are received from the Attorney General, the Solicitor General, or the heads of the respective divisions or\nbureaus for opinions presented in the administration of this Department. Sometimes the President may desire informal advice and either a memorandum prepared\nin this office directed to the Attorney General or in blank is transmitted to the\n\n422\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\nPresident with a covering communication from the Attorney General, or the\nAttorney General orally advises on the basis of such memorandum. When such\nmatters are received in this office, they are assigned to one or more of its attorneys\nwho prepare the required memoranda for transmission by the Assistant Solicitor\nGeneral.\nCommittees. The Assistant Solicitor General or members of his staff sometimes\nare appointed to represent the Attorney General on committees of various kinds. In\nsuch event they attend committee meetings and actively assist in their work.\nPreparation of Proposed Legislation. Sometimes the Attorney General calls\nupon this office to draft or to assist interested departments or agencies to draft\nlegislation to be submitted to the Congress.\nII.\nProcedure in Handling Proposed Executive Orders\nand Proclamations\nAuthority of the Attorney General for Considering Proposed Executive Orders\nand Proclamations. Executive Order 7298 of February 18, 1936, requires that all\nexecutive orders and proclamations be submitted to the Attorney General for his\nconsideration as to form and legality before submission to the President. This order\nsuperseded Executive Order 6247 of August 10, 1933, which contained a similar\nprovision.\nReference to the Attorney General. Paragraph 2 of the said Executive Order\n7298 provides that proposed executive orders and proclamations shall first be\nsubmitted to the Director of the Bureau of the Budget and that after he approves\nthem he shall transmit them to the Attorney General for his consideration. The\nAttorney General has assigned the function of considering proposed orders and\nproclamations to the Office of the Assistant Solicitor General.\nFile Numbers. Upon receipt of the proposed order or proclamation in the\nOffice of the Attorney General it is sent to the Division of Records, where it is\ngiven the proper file number and then transmitted to this office. If the order is\ndeemed urgent, it is sent directly to this office from the Attorney General\xe2\x80\x99s office,\nand is not given a file number until after it has been disposed of. In any event,\nhowever, the order is given preferred attention in the Division of Records and is\nsent to this office as expeditiously as possible.\nPreliminary Examination. The attorney in this office to whom the order or\nproclamation is assigned examines the order as soon as he receives it to determine\nhow expeditiously it should be handled. Frequently after it is received in the\nDepartment of Justice the presenting agency requests that it be given preferred\nattention in this Department so that it may reach the White House as soon as\npossible. All proposed orders and proclamations are handled as promptly as\npossible whether considered urgent or not.\n\n423\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nViews of Other Officers. In some cases, because of the nature or subject matter\nof the order, it is referred to another division or divisions in the Department for\ntheir views and recommendations. This is particularly true in regard to orders\ninvolving public land, such orders being occasionally referred to the Lands\nDivision. In other cases, because of doubtful legal questions involved, the head of\nthe presenting department or agency is requested to furnish an opinion of its chief\nlaw officer as to the legality of the order or proclamation.\nConsideration and Revision. In accordance with the requirements of Executive\nOrder 7298, this office considers proposed orders and proclamations as to both\nform and legality. It is first determined whether the order is legally authorized. If it\nis found to be without sufficient legal authority, the presenting agency is informally notified of the Department\xe2\x80\x99s views and consideration is given to the question\nwhether the order can be modified so as to eliminate the legal objections. If this\ncannot be done so that it is satisfactory to the presenting agency, the order is either\nwithdrawn by the presenting agency or returned with a letter of the Attorney\nGeneral setting forth the legal reasons why the order cannot be approved.\nIf the order is found to be legally unobjectionable there is for determination the\nquestion whether it should be revised as to form. It has been found that in the vast\nmajority of cases revision as to form and language is necessary, although the order\nmay be without legal objection. Section 1 of Executive Order 7298 provides that\nproposed orders and proclamations shall be prepared in accordance with certain\nformal requirements, for example, the authority under which it is issued must be\ncited, it must be typewritten on paper of a certain size, and matters of style\n(punctuation, capitalization, spelling, etc.) must conform to the Government\nPrinting Office style manual. The instrument is revised to conform to these more\nor less mechanical requirements. However, the most important function in revision\nis to give the order or proclamation the proper language and structure. The aim is\nto make it clear and unambiguous by conforming it to all the principles of good\nwriting and good composition. Generally, revisions in form are made without\nconsultation with or the consent of the presenting agency; in some cases, however,\nthe changes are so extensive that the revision is referred informally to the presenting agency for its approval. In no case is a change made in the substance of the\norder without the approval of the presenting agency.\nSubmission to the Attorney General. After the proposed order or proclamation\nhas been properly revised, in case revision is necessary, it is submitted, with four\ncarbon copies thereof (three of which accompany the original to the White House),\nto the Attorney General by memorandum of the Assistant Solicitor General, which,\nordinarily, contains a description and explanation of the order and a citation and\ndiscussion of the law under which the order is authorized. Accompanying the\nmemorandum to the Attorney General is a draft of a transmittal letter to the\nPresident for the signature of the Attorney General if the order is approved by him.\nThis letter ordinarily contains an explanation of the order and states that it is\napproved as to form and legality.\n\n424\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\nOpinions. In a considerable number of cases where difficult points of law are\ninvolved the Attorney General in his letter to the President expresses his opinion in\nsome detail on the legality of the order\xe2\x80\x94such opinions being similar in all\nessential respects to opinions expressly requested of the Attorney General by the\nPresident. Such opinions may or may not be published, according to the general\nprinciples governing the publication and non-publication of opinions of the\nAttorney General.\nTransmission to Mail Room. When the transmittal letter to the President is\nsigned by the Attorney General, it is sent, together with the memorandum and the\nproposed order, to the mail room for proper recordation. In accordance with the\nsaid Executive Order 7298 it is then transmitted to the Division of the Federal\nRegister, National Archives, which in turn forwards it to the White House. In some\nurgent cases the proposed order is brought to this Department by a representative\nof the Bureau of the Budget, who desires to carry the order to the White House\nafter it is approved by the Attorney General and the Division of the Federal\nRegister. In such cases the order is returned to this office by the office of the\nAttorney General and then delivered to the representative of the Bureau of the\nBudget.\nPublication and Printing. In conformity with the requirements of the Federal\nRegister Act approved July 26, 1935 (Pub. L. No. 74-220, \xc2\xa7 5(a)(1), 49 Stat. 500,\n501), all executive orders and proclamations having general applicability and legal\neffect are published in the Federal Register. All other orders and proclamations are\nprinted and copies thereof furnished this office.\nFile and Index. The chief attorney of this office maintains a complete file of all\nproposed Executive orders and proclamations handled by this office, together with\ncopies of all memoranda to the Attorney General and transmittal letters to the\nPresident. Such correspondence is filed in loosely bound volumes, each volume\ncontaining the correspondence for one calendar month. In addition, the chief\nattorney maintains a separate record of all proposed executive orders and proclamations submitted by this office to the Attorney General. A topical index of all\nproposed executive orders and proclamations handled by this office is being\nprepared under the direction of, and will be maintained by, the chief attorney.\nInformal Submission to this Office. In a considerable number of cases proposed orders or proclamations are informally submitted for the consideration of\nthis office either as to form or legality, or both. As an accommodation to and for\nthe convenience of the presenting agency, an attorney of this office revises the\ndraft so submitted or suggests changes therein. In some cases, also, this office is\ninformally requested to draft or aid in the drafting of a proposed order or proclamation before its formal submission.\n\n425\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIII.\nProcedure and Jurisdiction in Handling Offers in\nCompromise\nThoroughness and Expedition. In the handling of offers in compromise the\nprimary purpose of the Department is to act for the best interests of the United\nStates. Final action on offers in compromise should be expedited as much as\npossible, always consonant, of course, with thorough and careful consideration of\nthe facts and the law involved. Expedition benefits both the government and the\ncitizen.\nOrder of Procedure. When an offer in compromise is received in the Department to pay the government an amount in satisfaction of a claim by it, or to accept\nfrom the government an amount in satisfaction of a claim against it, the offer is\nreferred to the division or bureau in the Department which handles that type of\ncase. There it is studied and further investigated if necessary. Then the offer is\ntransmitted to the Assistant Solicitor General with the file and the recommendation\nof the head of the division or bureau for acceptance or rejection of the offer. In the\noffice of the Assistant Solicitor General the case is assigned to an attorney for\ncareful review. If the case is complicated, or there is doubt respecting the recommendation, frequently it is reviewed in the Assistant Solicitor General\xe2\x80\x99s office by\nmore than one attorney. Then it is submitted to the Assistant Solicitor General with\nthe recommendation or recommendations of the reviewer or reviewers and he\neither accepts or rejects the offer or makes his recommendation to the Attorney\nGeneral, depending on the amounts involved as hereinafter noted. If within the\nfinal jurisdiction of the Assistant Solicitor General, his office then transmits it back\nto the division or bureau from which it came. If the amounts bring the case within\nthe Attorney General\xe2\x80\x99s exclusive jurisdiction, after he has acted on the Assistant\nSolicitor General\xe2\x80\x99s recommendation, the case is referred back to the division in\nwhich it originated through the Assistant Solicitor General\xe2\x80\x99s office, in order that it\nmay be advised of the action of the Attorney General.\nRecommendations of U.S. Attorneys, etc. If an offer in compromise grows out\nof a case pending in the office of a United States Attorney, it is usually referred to\nthat official for his recommendation. In war risk insurance cases the United States\nAttorney\xe2\x80\x99s recommendation is required by statute. It is also customary, with the\nexception of war risk insurance cases, to refer the case to the department or bureau\nin which it originated for comment on the offer. Although this Department is not\nbound by the recommendations of other departments or bureaus, careful consideration is given to their recommendations.\nTenders with Offers. In any case involving a claim in favor of the United\nStates, the amount offered in compromise should be submitted with the offer.\nOccasionally the Department accepts an offer which is to be paid on the installment basis. In such cases it is desirable that the installment payments should not be\n\n426\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\nextended over a period of more than one year. Unless the full amount of an offer is\npaid at the time of acceptance, suits are not dismissed and judgments are not\nentered as satisfied on the record until the full amount of the offer has been paid.\nJurisdiction of the Assistant Solicitor General. By Departmental Order 2873\nof July 14, 1936, the Attorney General authorized the Assistant Solicitor General\nto take final action on offers in compromise in cases involving claims in favor of\nthe United States not exceeding $50,000 and in cases involving claims against the\nUnited States where the amount of the proposed settlement does not exceed\n$10,000. By the same order the Attorney General authorized United States\nAttorneys to compromise directly Indian claims and security and farm credit loan\nclaims in cases not exceeding $500 upon the recommendation of the Superintendent of the local Indian agency or the local representative of the administration\nwhich made the loan, respectively. In all other cases action by the Attorney\nGeneral is required.\nAttorney General\xe2\x80\x99s Compromise Power. The authority of the Attorney General\nto compromise claims in favor of and against the United States is derived in part\nfrom statutes and in part from the inherent power in the office. The power to\ncompromise granted to the Secretary of the Treasury and other officers under the\nprovisions of such statutes as sections 3229 and 3469 of the Revised Statutes\n(2d ed. 1878), 18 Stat. pt. 1, at 620, 688 (repl. vol.); section 617 of the Tariff Act\nof June 17, 1930, Pub. L. No. 71-361, 46 Stat. 590, 757; and section 9 of the Suits\nin Admiralty Act of March 9, 1920, Pub. L. No. 66-156, 41 Stat. 525, 527\xe2\x80\x9328, was\ntransferred to the Attorney General in connection with any case referred to the\nDepartment of Justice by Executive Order 6166 of June 10, 1933. Thus, once a\ncase is referred to the Department of Justice for action, the power to compromise\nthat case is vested in the Attorney General regardless whether some other officer\nhad power to compromise it prior to the reference. The Attorney General has direct\nstatutory power to compromise yearly term war risk insurance cases after suit has\nbeen instituted under the Act of June 16, 1933, Pub. L. No. 73-78, 48 Stat. 283,\n302, as amended by the Act of February 24, 1938, 52 Stat. 81 (codified at 38\nU.S.C. \xc2\xa7 445(b)), and also suits brought under the Public Vessels Act, Pub. L. No.\n68-546, 43 Stat. 1112 (codified at 46 U.S.C. \xc2\xa7 786). The Attorney General under\nhis broad primary power also has authority to compromise any case which has\nbeen referred to him for litigation and matters germane thereto. See Compromise of\nClaims Under Sections 3469 and 3229 of the Revised Statutes\xe2\x80\x94Power of the\nAttorney General in Matters of Compromise, 38 Op. Att\xe2\x80\x99y. Gen. 98 (1934)\n(Cummings, A.G.).\nBasis for Acceptance. Claims in favor of or against the United States cannot be\ncompromised unless there is a sufficient basis for such action. Mere considerations\nof equity, hardship, sympathy, etc. do not furnish such a basis. In cases involving\nclaims by the United States to justify compromise it must be shown (1) that a\njudgment in all probability cannot be recovered, or (2) that a judgment, if recovered, in all probability cannot be collected. The question whether a judgment can\n\n427\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nbe recovered usually depends upon legal or factual considerations. If the law as\nlaid down by the courts is contrary to the government\xe2\x80\x99s contentions or if the\ngovernment does not have the requisite testimony to prove its case within a\nreasonable certainty, there is sufficient doubt as to the ability of the government to\nrecover a judgment to justify compromise. If there is little or no doubt that the\ngovernment can recover a judgment, compromise can only be made when it\nappears improbable that more than the amount offered can be collected. In cases\ninvolving insolvent defendants, the government has the right of priority under the\nprovisions of section 3466 of the Revised Statutes (2d ed. 1878), 18 Stat. pt. 1, at\n687 (repl. vol.), and if the defendant\xe2\x80\x99s property is not covered by prior liens, the\ngovernment under its right of priority may be able to collect even though he is\ninsolvent. However, as against insolvent banks, the government may not collect\ntax claims if to do so will diminish the assets necessary to pay the depositors. See\n12 U.S.C. \xc2\xa7 570.\nWith reference to claims against the United States, the only question to be\nconsidered is whether the United States can successfully defend, since in such\ncases there is no question of collectibility. Claims against the United States may\nnot be compromised without express statutory authority unless there is an appropriation available to pay them. Ordinarily claims against the United States are not\ncompromised by the Department until suit has been instituted. The statutes which\nexpressly authorize the Attorney General to compromise so provide. In other cases\nthe claims are not referred here until suit has been instituted. See Annual Report of\nthe Attorney General, 1938, at 77.\nCriminal Cases. Criminal cases may not be compromised without express\nstatutory authority. The only class of criminal cases which Congress has authorized government officers to compromise are those arising under the Internal\nRevenue laws. See section 3229 of the Revised Statutes; section 7 of the Federal\nAlcohol Administration Act, Pub. L. No. 74-401, 49 Stat. 977, 985\xe2\x80\x9386 (codified at\n27 U.S.C. \xc2\xa7 207). In connection with income, gift, and estate tax cases, the policy\nof the Department is not to accept money in compromise of criminal liability. If\nthe case is one where successful prosecution is unlikely, the case may be compromised by payment of an amount not less than the government could otherwise\ncollect. If the case is one wherein prosecution is likely to be successful, the\nDepartment will accept only the maximum amount of the taxes, penalties, and\ninterest which the taxpayer can pay, together with a plea of guilty or nolo contendere. After compromise the case is submitted to the court by the United States\nAttorney without any recommendation for or against leniency. In connection with\nminor liquor tax violations, the Department accepts amounts of money in compromise of criminal liability in appropriate cases. See Annual Report of the\nAttorney General, 1938, at 76, 92, 200.\nWar Risk Insurance Cases. As heretofore stated, the Attorney General is authorized by law to compromise any suit brought under the provisions of the World\nWar Veterans\xe2\x80\x99 Act, 1924, Pub. L. No. 68-242, 43 Stat. 607 (as amended), on a\n\n428\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\ncontract of yearly renewable term insurance, upon the recommendation of the\nUnited States Attorney charged with the defense, for sums within the amount\nclaimed to be payable. The maximum face value of such a contract is $10,000.\nThis authority does not extend to suits brought on converted policies. The Veterans\nAdministration\xe2\x80\x99s files in cases recommended by the United States Attorney for\nacceptance are referred to the Bureau of War Risk Litigation for use of the\nDirector in preparing his recommendation to the Assistant Solicitor General upon\nthe merits of the claim. Since the plaintiffs in these suits are entitled to trial by\njury, each case is examined, after investigation by the Federal Bureau of Investigation, to determine whether plaintiff has sufficient evidence to make a prima facie\ncase for a jury and whether such evidence is sufficient to support a verdict. In\nthose cases where it appears that plaintiff can get his case to a jury and it seems\nprobable that a verdict would be returned in his favor, the compromise offer, if\nreasonable, is accepted. Action by the Assistant Solicitor General for the Attorney\nGeneral is final, unless the amount to be paid out exceeds (as is rarely the case)\n$10,000. Where acceptance is indicated, the Assistant Solicitor General signs a\nwritten consent to enter judgment. The case is then referred back to the United\nStates Attorney for entry of judgment against the United States. See Annual Report\nof the Attorney General, 1938, at 202.\nNote. Assistant Solicitor General Bell discussed the general subject of compromise before a conference of United States Attorneys in Washington on April\n21, 1939. That discussion is to be printed and reference may be made to what was\nthen said by him and the heads of other divisions and bureaus on the subject.\nIV.\nProcedure in Handling Opinions\nPrime Purpose. In the preparation and publication of opinions requested by the\nPresident and the heads of the executive departments, including the Veterans\nAdministration, the following steps ordinarily are taken in the order in which they\nare set forth; but this detail and routine is not permitted to interfere with the\naccomplishment of the prime purpose\xe2\x80\x94the prompt preparation of well considered\nopinions.\nWeekly Report. The weekly report of this office to the Attorney General should\nshow file numbers and (l) all opinions completed and sent to the Attorney General\nduring the week; (2) all opinions transmitted to the Chief Clerk for publication;\nand (3) all opinion requests pending, from whom and when received, when\nacknowledged, present status and the estimated date of completion. (For form see\nprevious weekly reports.)\nFile Numbers. Requests for opinions are routed to the Assistant Solicitor General, sometimes directly from the Attorney General\xe2\x80\x99s office and sometimes\nthrough the Division of Records. In the latter case, file numbers are assigned by\n\n429\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nthe Division of Records. If no file number has previously been assigned, the papers\nare forwarded to the Division of Records for this purpose.\nAcknowledgment. If an opinion is to be rendered but cannot immediately be\nprepared because of the necessity for study, etc., an acknowledgment of the\nrequest should be made without delay.\nUnauthorized Requests. If the request is from an officer or other person not\nauthorized by law to require opinions of the Attorney General, a letter is prepared\nacknowledging the request and then stating, with such variations as the case and\ncourtesy may require:\nThe Attorney General is authorized by statute to give opinions only\nto the President and the heads of the executive departments. He\nwould like to be of service to you but I am sure you will feel, as he\ndoes, that he ought not depart from the prevailing practice.\nIt is the practice, however, to supply any helpful information that may be available, particularly if the request is from a member of the Congress; and if the request\nis from the head of an independent establishment other than the Veterans Administration (which is authorized by law to obtain opinions) the suggestion is often\nmade, either within the letter or otherwise informally, that under established\npractice opinions required for the guidance of the independent establishments may\nbe requested by the President, if he deems it proper, upon suggestion from the\nagency concerned.\nQuestions upon Which Opinions Not Rendered. If the request is from an\nofficer authorized to obtain opinions it is considered and determined, under the\nprinciples laid down by the Attorneys General regarding the non-rendition of\nopinions in certain circumstances, whether the question is moot, pending in court,\netc. The circumstances may be such, moreover, as to require an opinion showing\nthe reasons why the opinion asked should not be rendered. A controlling principle\nin this connection, however, is that if the officer is charged or confronted with the\nduty of taking some present step or making some present determination he is\nentitled to whatever advice the Attorney General can furnish to guide him,\nalthough it may not amount to a categorical opinion upon the precise question of\nlaw involved. (For illustrations, see Exhibit A annexed.)\nViews of Chief Law Officer. If additional information is required or if the\nviews of the chief law officer of the affected department have not been furnished\nin accordance with the established practice, this information is requested in the\nletter of acknowledgment. The practice is reflected by the following: letters of\nOctober 15, 1906, signed by Acting Attorney General Purdy, and September 15,\n1924, signed by Attorney General Stone, addressed to the heads of the executive\ndepartments and independent establishments; printed \xe2\x80\x9cinstructions\xe2\x80\x9d (not dated)\nissued from the White House in 1918, addressed \xe2\x80\x9cto those who (though otherwise\nnot entitled to an opinion) have asked the President to secure an opinion from the\n\n430\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\nAttorney General,\xe2\x80\x9d directing that \xe2\x80\x9cif there is a law clerk or officer, or person acting\nas such, for the officer or board seeking the submission, his opinion, covering the\nentire subject, with complete data . . . should accompany the inquiry.\xe2\x80\x9d Special\nOpinion Rules, Dep\xe2\x80\x99t File No. 19-012. Also see the more recent letter of March 6,\n1939, addressed to the Administrator of Veterans Affairs. Dep\xe2\x80\x99t File No. 19-33-64.\nViews of Other Officers. It is also considered at this time whether the views of\nany other department or officer are necessary or would be helpful; if so, letters to\nthem asking their views are prepared and the officer requesting the opinion so\nadvised. Frequently the requesting officer or his staff is orally consulted for further\nlight on the request.\nA memorandum is also prepared requesting the views of the Assistant Attorney\nGeneral or other officer of this Department concerned in the subject matter or\napparently in a position to afford helpful assistance.\nPreliminary Study. Study in this division of the question involved is undertaken as promptly as possible, and is not deferred pending receipt of views and\ninformation requested as above pointed out save only when and to the extent that\nthe exigencies require. In some cases tentative drafts of opinions are prepared in\nadvance of the receipt of such information and views.\nPreparation of Opinion. As promptly as possible the attorney to whom the\nmatter has been assigned prepares (in rough draft or final form, depending upon\nthe exigencies) a completed draft of an opinion. In connection therewith he may,\nand frequently does, consult the Assistant Solicitor General and other members of\nthe staff. When the draft is completed it is turned over to the Assistant Solicitor\nGeneral and by him carefully studied and subjected to such revision as he finds\nproper. Frequently, and particularly in connection with questions that are difficult\nor of major import, the Assistant Solicitor General obtains the independent views\nof several or all the members of the staff. At times tentatively finished drafts may\nbe submitted to officers of the Department and other divisions for their comments\nor suggestions. In some cases the general views of the Attorney General are\nobtained preliminarily through the submission of memoranda, rough drafts or\nconferences.\nAvoidance of Conflicts with Briefs. Special effort is made to avoid conflicts\nwith positions taken by the Department in briefs filed in the courts. The Solicitor\nGeneral and members of his staff are consulted informally to such extent as the\nexigencies warrant and in particular cases the completed draft of the opinion is\nsubmitted to the Solicitor General before it is forwarded to the Attorney General.\nAlso, the Solicitor General is furnished a copy of the weekly report with redpenciled references to the completed and pending opinions listed therein.\nUniformity in Citations, Capitalization, etc. In order to achieve greater uniformity and to obviate changes in the copy for the printer, all attorneys and\nstenographers have been instructed to adhere rigidly to the Government Printing\nOffice style manual in the matter of capitalization, punctuation, etc., and to\n\n431\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nobserve prescribed uniform methods of citing the United States Code, the Statutes\nat Large, opinions of the Attorney General, the reported cases, etc. The Printing\nOffice has also been requested to make any necessary changes in the matter of\ncapitalization and punctuation (e.g., placing of commas and periods in connection\nwith quotation marks, etc.).\nRecommendation re Publication. If it is considered that the opinion should be\nwithheld from publication a memorandum embodying such recommendation and\naddressed to the Attorney General accompanies the opinion. It is prepared by the\nattorney to whom the opinion was assigned and is signed by the Assistant Solicitor\nGeneral. It provides on the bottom thereof a place for the Attorney General\xe2\x80\x99s\nindication of approval or disapproval of the recommendation.\nIf it is considered that the opinion should be published it is accompanied by a\nletter for the Attorney General\xe2\x80\x99s signature and directed to the officer to whom the\nopinion is addressed, asking whether or not he perceives any objection to publication.\nOpinions ordinarily are published, as provided by law (5 U.S.C. \xc2\xa7 305), unless\nthey relate to matters deemed confidential or amount to mere practical suggestions\nor informal advice of little or no value as a precedent.\nSubmission to the Attorney General. The proposed opinion with such recommendation or letter respecting publication is transmitted with the complete file\nrelating to the matter to the Attorney General bearing a printed tag requesting\nreturn to this office when acted upon.\nWhen the proposed opinion reaches the Attorney General he subjects it to such\nconsideration and to such revision as he deems proper. It is perhaps a tribute to the\ncare displayed in the preparation of these drafts that they are usually approved and\nsigned by the Attorney General without revision.\nOpinion Returned to Assistant Solicitor General. If the opinion is signed by\nthe Attorney General it is returned to this division in order that proper entries in\nour records (i.e., record book in Assistant Solicitor General\xe2\x80\x99s office and card index\nin opinion section) may be made.\nOpinion Transmission to Mail Room. Immediately after such entries have\nbeen made the opinion is transmitted to the mail room for dispatch by messenger\nto the addressee. The papers accompanying the opinion, together with a carbon\ncopy of the letter, are required by departmental rules to be sent with the opinion to\nthe mail room, where they are properly stamped\xe2\x80\x94indicating the time that the\nopinion leaves the Department\xe2\x80\x94and thence go to the Division of Records for\nrecording and preparation of the file.\nFile Returned by Division of Records. The file, together with a carbon of the\nrecord card, is transmitted by the Division of Records to this division.\nOpinion Files Confidential. The opinion files are regarded as confidential and\nthere is affixed to each file in the Division of Records a pink label bearing the\nfollowing legend:\n\n432\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\nUnpublished letters and memoranda in the opinion files must not be\ncited or made public without approval by the Attorney General.\nQuestions relating thereto should be handled with the Assistant Solicitor General.\nAdditional Verification if Publication Recommended. If publication of the\nopinion has been recommended, the file copy of the opinion is now again verified\nand citations and quotations checked against original sources.\nSyllabi. Headnotes and title are prepared, and are approved or revised by the\nAssistant Solicitor General.\nReference to Other Divisions. If the opinion affects or is of apparent interest to\nother divisions or officers of this Department, including the Solicitor General, the\nfile is referred to them for noting and prompt return to this office.\nResponse to Letter re Publication. When response is received from the officer\nto whom the opinion was addressed regarding publication his recommendation is\nordinarily followed as a matter of course. If he objects to publication the opinion\nusually is not published, although this lies in the discretion of the Attorney\nGeneral. If he requests that it be withheld temporarily note is made to that effect\nand the matter followed up by inquiry from time to time until publication.\nCopies for Publicity Section and Law Week. If the opinion is to be published a\ncarbon copy is now sent to the United States Law Week and another to the\nPublicity Section of the Attorney General\xe2\x80\x99s office.\nMimeographed Copies. Mimeographed copies are prepared under the supervision of this division if required by the Publicity Section or if the matter is of such\nnature that some immediate distribution is desirable or immediate requests for\ncopies appear imminent.\nCopies to Chief Clerk for Printing. When released for publication a carbon\ncopy of the opinion with title and headnotes is transmitted by memorandum from\nthis division to the Chief Clerk with the request that he arrange for printing and\ndistribution.\nVerification of Proof. The opinion is printed at the Government Printing Office\nin pamphlet form. The proof is read and verified against the carbon copy of the\nopinion in the office of the Chief Clerk, and is referred to this division for approval\nbefore being returned to the Printing Office.\nDistribution and Mailing List. Seven hundred twenty-five copies are ordinarily\nprinted. Approximately 650 copies are distributed to persons on the mailing list,\nwhich is kept in the Chief Clerk\xe2\x80\x99s Office but subject to supervision of this office\xe2\x80\x94\nleaving approximately 75 copies on hand to supply future needs and to fill requests\nfrom persons (ordinarily officials) who are not upon the mailing list or require\ncopies additional to those ordinarily sent.\nA separate mailing list for these opinions is also kept by the Superintendent of\nDocuments at the Government Printing Office, comprising largely private persons\n\n433\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n(who pay a small fee), and libraries and other depositaries designated by statutes\nwhich relate to official publications generally.\nBound Volumes and Digests\nSame Type Used. The type used in printing the pamphlet is kept standing at the\nGovernment Printing Office for eventual use in the printing of the bound volumes\nof the opinions of the Attorney General\xe2\x80\x94with such changes and corrections as\nmay subsequently be found necessary.\nAdditions and Corrections. The printed pamphlet opinion is carefully examined in this office and is verified against the carbon copy of the opinion as an\nadditional precaution against appearance of errors in the bound volume; also at\ntimes it appears advisable to indicate some minor change or the addition of a\ncitation or footnote in the bound volume.\nSetting up Type for Bound Volumes. From time to time copies of the pamphlet\nopinions with running headlines and with such eliminations, additions and\ncorrections as may be necessary are transmitted by this office to the Government\nPrinting Office for setting up in paged form as they will appear in the bound\nvolume. The frequency with which this is done is dependent in part upon the\nnumber of opinions, bearing in mind also that the effect of setting up the type for\nthe bound volume is to make impracticable the obtaining of any additional copies\nin pamphlet form\xe2\x80\x94an exigency which occasionally arises. Also the temporary\nwithholding of opinions for publication, or delay in obtaining approval of publication by the head of the Department affected, has bearing upon this.\nOpinions Temporarily Withheld from Publication. An opinion withheld from\npublication beyond the time when the opinions for that period are set up for the\nbound volume must be (for reasons of practicability and economy) inserted in the\nvolume out of its ordinary order with respect to time. Formerly such opinions were\nplaced in the volumes as of the approximate time of their release for publication. It\nhas now been determined, however, that such delayed opinions will hereafter be\nplaced at the end of the volume, with proper notations.\nIndices and Digests. As the printed pamphlet copies of opinions are received\nfrom the Government Printing Office they are digested and indexed on cards (in\nduplicate) and the cards filed in proper alphabetical order for use in printing the\nindex digest in the bound volume.\nWhen the work of preparing the bound volumes, digests, etc., was transferred to\nthis office a little over a year ago it was assigned to Mr. Fowler for supervision and\nexecution with such assistance as should be found necessary and available. Some\nchanges in method and arrangement have been devised and approved.\nSupplement to General Digest. It is contemplated that a supplement to the\ngeneral digest (now in course of preparation) will be issued as promptly as\npossible after Volume 39 is completed, and that thereafter attention will be given\nto the question of reissuance of the entire digest.\n\n434\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\nUnpublished Opinions\nAll opinions determined to be withheld from publication are carefully examined\nand if they appear to be worthy of preservation as precedents copies are made and\nbound with appropriate headnotes and indices for confidential use in this office.\nThis work is being performed by Mr. Arthur Robb, who is on the payroll of the\nAdministrative Division but has been assigned to the supervision of this office for\nthis purpose.\nImportant memoranda and opinions (intradepartmental) prepared by this office\nfor the assistance of the Attorney General and others, upon questions arising in this\nDepartment or otherwise, are similarly preserved, bound and indexed, by Mr.\nRobb under the supervision of this office. All such items since the establishment of\nthe office of the Assistant Solicitor General (January 1, 1934), and including in\naddition some such memoranda and opinions prepared previously thereto in the\noffice of the Assistant Attorney General, Admiralty and Civil Division, have been\ncollected and are now in course of preparation for binding and indexing.\nV.\nProcedure in Handling Gifts, Bequests, and Devises\nUnconditional gifts and bequests of personal property are accepted by the Secretary of the Treasury and other administrative officers without express statutory\nauthority under a practice which has prevailed, with knowledge of and apparent\napproval by the Congress, since the earliest days of the government. A few\nstatutes, mostly of recent origin, authorize acceptance of gifts, bequests and\ndevises by particular agencies. There is no general statute, but the enactment of\nsuch a statute has recently been recommended by this Department. See Dep\xe2\x80\x99t File\nNo. 103-01-1.\nAs cases arise and are brought to the attention of this Department (by other\ndepartments of the government, or by United States Attorneys, or executors, or\ncounsel for executors, etc.) the United States Attorneys are instructed by letters or\ntelegrams prepared in this office to enter appearances on behalf of the government\nto protect its interests. United States Attorneys when first confronted with a will\ninvolving a bequest to the government are sometimes at a loss as to how to\nproceed and it becomes necessary for this office to instruct them, pointing out the\napplicable principles and practice, and at times to assist them in preparing\narguments in support of the government\xe2\x80\x99s position. For some typical precedents,\nsee Dep\xe2\x80\x99t File Nos. 103-11-1; 103-16-A; 103-9-1; 103-32-2; 103-51-10; 103-51-4.\nIn connection with gifts inter vivos this Department extends assistance only as\nrequested by the head of the department or agency concerned.\n\n435\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nVI.\nProcedure in Handling Customs Cases\nAppeals. The United States Customs Court has jurisdiction of cases involving\nthe classification and reappraisement of merchandise imported into the United\nStates. The decisions of the Customs Court are appealable to the Court of Customs\nand Patent Appeals and may be taken from the latter court to the Supreme Court\non a writ of certiorari. These cases are handled by the Assistant Attorney General\nin charge of the Customs Division located in New York City. In any case where\nthe decision is against the government and where the Assistant Attorney General\nin charge of the Customs Division is of the opinion that an appeal should be taken,\nhe prepares a recommendation to that effect and transmits it to the Solicitor\nGeneral.\nSuch cases are referred by the Solicitor General to the Assistant Solicitor General where they are assigned to an attorney to prepare a recommendation for or\nagainst the taking of an appeal. The case is then forwarded to the Solicitor General\nwho finally decides whether an appeal shall be taken. Such cases are briefed and\nargued by representatives of the office of the Assistant Attorney General in charge\nof customs matters. Cases wherein the plaintiff takes an appeal are not referred to\nthis office.\nPetitions for Writs of Certiorari. Petitions for writs of certiorari filed by importers in the Supreme Court are referred to the Customs Division in New York\nwhere a tentative brief in opposition is prepared and forwarded to the Solicitor\nGeneral. These cases are then assigned to the Assistant Solicitor General who\nrevises the briefs and submits them to the Solicitor General before they are sent to\nthe Government Printing Office for printing. In cases wherein the government\nmight desire to petition the Supreme Court for a writ of certiorari, the Customs\nDivision in New York transmits the case to the Solicitor General with a recommendation either for or against the filing of the petition. The Assistant Solicitor\nGeneral then prepares a recommendation to the Solicitor General who finally\ndecides whether or not a petition shall be filed.\nConstitutional and Treaty Questions. All cases in the Customs Court wherein\nthere arises a question involving the constitutionality of a statute or the interpretation of a treaty or international agreement are referred to this office for consideration before they are tried. If the case involves a treaty it is referred to the State\nDepartment for its views with respect to the defenses to be imposed. If the case\ninvolves a constitutional question it is carefully considered here in order that a\nproper record may be made and all pertinent questions presented to the court in the\nevent the case should reach the Supreme Court of the United States. If the case is\nan important one, this office actively assists the Assistant Attorney General in\ncharge of customs matters in the preparation of the brief.\n\n436\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\nVII.\nOffice Procedure and Mechanics\nThe staff of the office of the Assistant Solicitor General is not sufficiently large\nto present any substantial problems of administration such as exist in divisions\nhaving larger personnel, like the Lands Division, the Tax Division, etc. Therefore,\nit will be necessary only briefly to indicate the manner in which the more or less\nmechanical business of the office is carried on.\nCare is taken to see that the general departmental orders respecting the handling\nof files, correspondence, etc. are observed. Particular care is exercised to see that\nin all official matters, copies of all correspondence, memoranda, etc. go into the\ngeneral files of the Department, whatever copies may be retained in this office.\nThe required and customary usage in these matters is observed.\nCorrespondence\xe2\x80\x94Form. Where possible and when not in conflict with any\ngeneral departmental order, undue formality in the form of correspondence is\navoided: for instance, in the salutation it is generally preferable to say \xe2\x80\x9cDear Mr.\nBlank\xe2\x80\x9d rather than \xe2\x80\x9cDear Sir\xe2\x80\x9d or \xe2\x80\x9cGentlemen\xe2\x80\x9d; in closing, similarly, it is generally\npreferable to use \xe2\x80\x9cSincerely yours,\xe2\x80\x9d \xe2\x80\x9cCordially yours,\xe2\x80\x9d etc. rather than \xe2\x80\x9cYours\ntruly,\xe2\x80\x9d etc.\nMessenger\xe2\x80\x94Library\xe2\x80\x94Supplies. The library of this office is very small, and it\ndepends primarily upon the main departmental library. The library is managed, as\nare the office supplies of this office, by its messenger who performs the customary\nduties of that position in securing books for members of the staff, furnishing them\nwith supplies, receiving and transmitting the mail, memoranda, etc.\nIncoming Matter. All incoming official matter\xe2\x80\x94mail, memoranda, compromises, etc. (sometimes routed directly from the Attorney General\xe2\x80\x99s office,\nsometimes through the Division of Records, or in the case of intradepartmental\nmemoranda, from the various divisions and bureaus of the Department)\xe2\x80\x94is\nreceived in the head office of the Assistant Solicitor General, where it is stamped\nin as of the date it is received and a written record made in various record books\nwhich have been set up for the purpose. After such records have been made, the\nmail is then routed to the Assistant Solicitor General and by him assigned to the\nseveral attorneys in the division.\nOutgoing Matter. All outgoing letters, memoranda, compromises, etc., in fact\nall official matter leaving the division, is routed by the attorneys to the head office\nof the Assistant Solicitor General. A written record is there made indicating the\ndate on which the matter is transferred from the attorney to the Assistant Solicitor\nGeneral. After being acted on by the Assistant Solicitor General, a further record is\nmade indicating the date on which the matter finally leaves the division. In order\nthat complete information may be available in the office, the practice has been\nestablished whereby compromise cases requiring the approval of the Attorney\nGeneral and all opinions, which of course require his signature, are returned to this\n\n437\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\noffice after being approved and signed by him and a record is made of the date of\nhis approval and signature.\nOffice Record Books\nAssignment Book. On Monday morning of each week a typewritten assignment\nsheet is made up for each attorney in the division. This sheet shows all official\nmatters pending with each attorney, the date on which assigned to him and their\ngeneral status. For each succeeding day of the week a pen-written record is kept\nwhich shows assignments completed by, and new assignments to, each attorney in\nthe division. In this way a current record of the work being handled by each\nattorney is available at all times.\nOpinion Book. The opinion record book contains a separate typewritten sheet\nfor every official request for an opinion of the Attorney General, which, of course,\nmeans requests from the President or the head of an executive department of the\ngovernment. The data kept on each such request is as follows:\n1. Department of Justice file number.\n2. By whom requested and date of request.\n3. Subject matter of the request.\n4. Date received in this office.\n5. Name of attorney in this division to whom preparation of opinion\nis assigned and date assigned.\n6. Date on which draft of opinion is submitted to Attorney General.\n7. Date opinion is signed by the Attorney General.\nExecutive Order & Proclamation Book. The executive order and proclamation\nrecord book contains data similar to that kept in the opinion book and is as\nfollows:\n1. Department of Justice file number.\n2. Executive order number (available after Order is printed in the\nFederal Register).\n3. Subject matter and by whom order is presented.\n4. Date received in this office.\n\n438\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\n5. Name of attorney in this Division to whom assigned and date assigned.\n6. Date on which order with proposed letter of transmittal to the\nPresident is submitted to Attorney General for approval.\nCompromise Books. Compromise cases are referred to this office from the\nseveral divisions and bureaus in the Department and separate data is kept in record\nbooks according to the particular division or bureau from which they emanate.\nGenerally the following information is noted for the records of this office:\n1. Title of case.\n2. Date received in this office.\n3. Whether claim is for or against the government.\n4. Amount involved.\n5. Amount offered in compromise.\n6. Acceptance or rejection of offer by Assistant Solicitor General and\ndate such action taken.\nWhen offers in compromise require final action by the Attorney General upon the\nrecommendation of the Assistant Solicitor General, notation is made of the date on\nwhich they are submitted to the Attorney General. When final action has been\ntaken by the Attorney General, the cases are returned to this office where a record\nis made of his action in the matter and of the date on which he acted. The cases are\nthen returned to the respective divisions or bureaus from which they originated.\nCustom Appeals Book. As one of the regular assignments of this office is to\nmake recommendations to the Solicitor General as to whether appeals should be\ntaken in customs cases, a record book is maintained containing the following\ninformation respecting each case submitted:\n1. Title of case.\n2. Date received in this office.\n3. Date on which appeal expires.\n4. Date on which recommendation of Assistant Solicitor General for\nor against appeal is submitted to Solicitor General.\n5. Date on which Solicitor General acts on above recommendation.\n\n439\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n6. Date of letter to the Assistant Attorney General, in charge of Customs matters, New York, advising of the Solicitor General\xe2\x80\x99s decision\nin each case.\nReports to the Attorney General\nAnnual. At the end of each fiscal year an annual report of the work performed\nby each division and bureau of the Department is submitted to the Attorney\nGeneral for inclusion in his annual report to the Congress. The report for the\ndivision of the Assistant Solicitor General is prepared in narrative form and under\nheadings which show the type and amount of work performed by the office. See\nAnnual Report of the Attorney General, 1938, at 26.\nQuarterly. Commencing with July 1 of each fiscal year quarterly reports are\nprepared for the Attorney General. These reports are purely statistical in form and\nare divided into two parts, the first showing, under the proper headings, the\nnumber of assignments completed during the year up to and including the date\nending the quarter; and the second showing the number of assignments pending as\nof the date ending the quarter. Such quarterly reports facilitate the preparation of\nthe annual report. (See those heretofore made.)\nWeekly. A report of completed and pending assignments is submitted to the\nAttorney General at the close of every week during the year. This report, like the\nquarterly reports, is divided into two parts, the first showing matters completed\nduring the week; and the second showing matters pending at the end of the week.\nThe data contained in the weekly report is grouped under five main headings, as\nfollows:\n1. Executive orders and proclamations.\n2. Opinions.\n3. Compromises.\n4. Special Assignments from the Attorney General.\n5. Special Assignments from the Solicitor General.\nEvery assignment completed during the week is listed under one of the above\nheadings so that by consulting the report the amount and type of work performed\nby the division for any given week can easily be determined; in the same way, the\namount and type of matter pending in the division at the end of any given week\ncan easily be determined. (See those heretofore made.)\nGOLDEN W. BELL\nAssistant Solicitor General\n\n440\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\nEXHIBIT A\nStatutory Limitation on the Power of the Attorney\nGeneral to Render Opinions\nSection 35 of the Act of September 24, 1789, ch. 20, provides, in part:\nAnd there shall also be appointed a meet person, learned in the law,\nto act as attorney-general for the United States, who shall be sworn\nor affirmed to a faithful execution of his office; whose duty it shall\nbe . . . to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by\nthe heads of any of the departments, touching any matters that may\nconcern their departments . . . .\n1 Stat. 73, 92\xe2\x80\x9393.\nThe provisions of the above statute were brought forward in sections 354 and\n356 of the Revised Statutes (2d ed. 1878), 18 Stat. pt. 1, at 60 (repl. vol.), and later\nin sections 303 and 304 of title 5, U.S. Code.\nFor more than a hundred years the above-quoted statute has been construed by\nthe Attorneys General as limiting their power to render opinions. In an opinion\ndated June 12, 1818, Attorney General Wirt said:\nUnder this law, which is the only one upon the subject, I do not think\nmyself authorized to give an official opinion in any case, except on\nthe call of the President, or some one of the heads of departments;\nand I should consider myself as transcending the limits of my commission in a very unjustifiable manner, in attempting to attach the\nweight of my office to any opinion not authorized by the law which\nprescribes my duties.\nOffice of Attorney General, 1 Op. Att\xe2\x80\x99y Gen. 211, 212 (1818).\nAgain, in an opinion dated September 14, 1821, Mr. Wirt said:\nThis act limits me to questions of law propounded by the President\nand heads of departments; . . . no officer should be permitted to\nstretch his authority and carry the influence of his office beyond the\ncircle which the positive law of the land has drawn around him.\nOffice of Attorney General, 1 Op. Att\xe2\x80\x99y Gen. 492, 492\xe2\x80\x9393 (1821).\nSubsequent Attorneys General have generally followed the rule thus laid down\nby Mr. Wirt. That the Congress has considered this the correct interpretation of the\nstatute is evidenced by the fact that, in 1924, it expressly authorized the Attorney\nGeneral to render opinions to the Director of the United States Veterans Bureau on\n\n441\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nquestions of law arising in the administration of the Bureau, Act of June 7, 1924,\nPub. L. No. 68-242, \xc2\xa7 9, 43 Stat. 607, 610 (codified at 38 U.S.C. \xc2\xa7 433), but has\notherwise declined to follow recommendations of several Attorneys General to\nextend the opinion jurisdiction.\nFollowing the rule thus laid down in the early days of the statute the Attorneys\nGeneral have consistently held that the law does not permit them to render\nopinions except to the President and to the heads of the departments (including,\nsince 1924, the Director of the United States Veterans Bureau), and to them only\nupon questions of law which have arisen and are still pending in their respective\ndepartments and requiring future determination. They have consistently held that\ntheir opinions are limited to such as will aid an administrative officer entitled\nthereto in determining what administrative action he should take in connection\nwith a particular matter pending and undetermined in his department.\nIn this connection the Attorneys General have held that the Attorney General\n\xe2\x80\x9cpossesses no jurisdiction under the law to revise a conclusion already reached and\nabout which the official presenting the question merely desires my confirmatory\nopinion.\xe2\x80\x9d Jurisdiction of the Attorney General\xe2\x80\x94Certain Cases in Which the\nAttorney General Will Not Render an Opinion, 38 Op. Att\xe2\x80\x99y Gen. 149, 150 (1934);\nAttorney-General, 20 Op. Att\xe2\x80\x99y Gen. 440 (1892). In other words, where an officer\nof the United States authorized to administer a statute has without securing the\nopinion of the Attorney General adopted thereunder a practice satisfactory to\nhimself, the Attorney General is without authority to question this practice, and\nwill not do so, unless and until it is made to appear that such officer or his\nsuccessor entertains some doubt as to the correctness thereof and for that reason\nseeks the advice of the Attorney General in connection therewith. Speaking on this\nsubject, Attorney General Butler, in an opinion dated February 12, 1836, said:\nI cannot undertake to give an official opinion on the question proposed to me, without assuming that this office possesses a revisory\njurisdiction not conferred upon it by law.\nDuties of Attorney General, 3 Op. Att\xe2\x80\x99y Gen. 39, 40 (1836).\nThe Attorneys General have also generally held that under the statutes the\nAttorney General is not authorized to render opinions to, or for the benefit of, the\nCongress or its committees. In an opinion dated March 26, 1937, which discusses\nat some length the Attorney General\xe2\x80\x99s authority to render opinions, the present\nAttorney General called attention to the ruling of his predecessors in this respect,\nRendition of Opinions on Constitutionality of Statutes\xe2\x80\x94Federal Home Loan Bank\nAct, 39 Op. Att\xe2\x80\x99y Gen. 11, 12\xe2\x80\x9313 (1937), and in a footnote to the opinion referred\nto 80 Cong. Rec. 4370\xe2\x80\x9371 (1936), where a list of some of the opinions of prior\nAttorneys General on the subject will be found, id. at 13 n.1.\nNot only have Attorneys General declined to render opinions on direct requests\nof the Congress or its committees, or members thereof, but they have also\n\n442\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\nconsidered it beyond their authority to render opinions to administrative officers\nwhere it appeared that the purpose for which the opinions were requested was their\nuse by the Congress or committees thereof. On this question Attorney General\nMitchell, in an opinion dated April 25, 1932, said, in part:\nUnder date of January 28, 1820, the House of Representatives entered an order requesting the opinion of Attorney General Wirt respecting a matter in which the House was interested. In declining to\ngive the opinion the Attorney General, among other things, said:\nThe Attorney General is sworn to discharge the duties of his office according to law. To be instrumental in enlarging the sphere\nof his official duties beyond that which is prescribed by law\nwould, in my opinion, be a violation of this oath. (1 Op. [Att\xe2\x80\x99y\nGen.] 336.)\nThat opinion has stood unquestioned for one hundred and twelve\nyears and has been repeatedly followed in later rulings. Under date of\nDecember 17, 1884, Attorney General Brewster felt obliged to decline compliance with a resolution passed by the House of Representatives requesting his opinion on the application of a section of\nthe Revised Statutes (18 Op. [Att\xe2\x80\x99y Gen.] 87). Having failed to obtain the opinion by direct request, the House of Representatives\npassed another resolution requesting the Postmaster General to ask\nfor the Attorney General\xe2\x80\x99s opinion, and the Postmaster General\ntransmitted the request to the Attorney General who again refused to\ngive the opinion on the ground that he had no authority to give it to\nthe House of Representatives and the Postmaster General did not\nneed it on any question pending in his Department.\nUnder date of February 14, 1929, my immediate predecessor declined the request of the House Committee on Expenditures in the\nexecutive departments for an opinion, and on June 3, 1930, I felt\nobliged to decline an opinion requested by the Judiciary Committee\nof the Senate.\nCongress has accepted this long standing interpretation of the law\nand has never attempted by law to enlarge the powers or duties of the\nAttorney General so as to require him to give opinions to either\nHouse of Congress or to committees thereof. Having in mind the\nconstitutional separation of the functions of the legislative, executive,\nand judicial branches of the Government, there has always been a serious question whether the principle of that separation would be violated by a statute attempting to make the Attorney General a legal\n\n443\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nadviser of the legislative branch, and as a matter of governmental\npolicy the wisdom of constituting as legal adviser of either House of\nCongress an official of the executive department, who sits in the\nPresident\xe2\x80\x99s Cabinet and acts as his legal adviser, has always been\nopen to doubt.\nWhen pending legislation affecting the Department of Justice has\nbeen referred to Attorneys General for comment or suggestion, it has\nbeen their practice to suggest such legal points as are pertinent and\nwhich ought to receive consideration by committees, but that practice\nhas never properly involved any formal legal opinions from Attorneys General and has no resemblance to a request for an opinion as\nto the effect of an existing statute.\nRequest of Senate for Attorney General\xe2\x80\x99s Opinion on Railroad Mergers, 36 Op.\nAtt\xe2\x80\x99y Gen. 532, 534\xe2\x80\x9335 (1932).\nThe general question of opinions of the Attorney General, their functions, and\nthe practice relating to the rendition thereof are discussed at some length by\nCummings and McFarland in Federal Justice. For reference to the places where\ndifferent phases of the question are discussed, see Homer Cummings & Carl\nMcFarland, Federal Justice: Chapters in the History of Justice and the Federal\nExecutive 571 (1937) (under heading \xe2\x80\x9cOpinions of the Attorneys General\xe2\x80\x9d).\nIn an opinion to the Secretary of the Treasury dated January 30, 1911, Attorney\nGeneral Wickersham said in part:\nIt appears that the questions presented involve the legality of certain orders issued by the Commissioner of Internal Revenue, the purpose of which is to prohibit the reclamation of spirits from such\npackages in the absence of affirmative proof that such spirits had\nbeen properly tax-paid. The papers in the case show that these orders\nwere issued under your direction and that the Commissioner and the\nSolicitor of Internal Revenue, as well as yourself, are fully satisfied\nthat your action in the premises is correct, the questions referred to\nbeing presented for my consideration merely because of the request\nof counsel for the parties interested.\nThere are numerous precedents to the effect that the AttorneyGeneral is precluded from rendering opinions under such circumstances. In an opinion of August 17, 1892 (20 Op. [Att\xe2\x80\x99y Gen.] 440),\nit appeared that the Treasury Department had reached conclusions\nupon certain questions which had arisen or might arise therein under\na statutory provision, and that an opinion was desired as the \xe2\x80\x9ccorrectness of the interpretations and applications of said law.\xe2\x80\x9d In declining to accede to this request it was said (id. at 441\xe2\x80\x9342):\n\n444\n\n\x0cJurisdiction and Procedure of the Office of the Assistant Solicitor General\n\nIt is required not only that the question must be one arising in the\nadministration of a department, but it must be one which is still\npending. A matter which has been considered and decided is not\nnow a \xe2\x80\x9cquestion\xe2\x80\x9d upon which the head of a Department may require an opinion of the head of the Department of Justice.\nAn opinion reported in 3 Op. [Att\xe2\x80\x99y Gen.] 39 likewise decides\nthat the Attorney General does not possess the power to revise the\ndecisions of an executive department, deliberately made and entirely\nsatisfactory to the Secretary thereof.\nIt appears, moreover, that a proper determination of the questions\npresented can not be accomplished without considerable difficulty,\nand that the questions are essentially judicial in their nature. There is\nalso every reason to believe that if an opinion should be rendered\nsustaining the validity of the orders in question, parties interested\nwould resort to the courts for the purpose of having the matter judicially investigated and determined. That it is not proper for the Attorney-General to express an opinion upon a question which must ultimately be decided by the courts has been settled by numerous and\nunequivocal precedents (Digest Op. 46\xe2\x80\x9348).\n....\nUnder all the circumstances, it seems clear that it would not be\nproper to attempt to give you the advice requested.\nInternal Revenue\xe2\x80\x94Reclamation of Alcohol from the Staves of Empty Spirit\nPackages\xe2\x80\x94Attorney-General, Opinions, 28 Op. Att\xe2\x80\x99y Gen. 596, 596\xe2\x80\x9397, 598\n(1911).\nIn an opinion to the Administrator of Veterans Affairs dated November 30,\n1934, Attorney General Cummings said in part:\nIt appears from your letter that I am not called upon to give an\nopinion upon a question of law now pending and undetermined in the\nVeterans\xe2\x80\x99 Administration but am asked to give an opinion upon a\nquestion which you have already considered and decided. It has been\nheld by my predecessors that this Department possesses no jurisdiction under the law to revise a conclusion already reached and about\nwhich the official presenting the question merely desires my confirmatory opinion, (20 Op. [Att\xe2\x80\x99y Gen.] 440). Furthermore, I am advised that a similar question is now before the United States District\nCourt for the District of Nebraska in the case of Mrs. Emma Thomas,\nAdministratrix of the Estate of James A. Hakel, deceased v. United\n\n445\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nStates, involving a claim for insurance benefits under Section 309 of\nthe World War Veterans\xe2\x80\x99 Act, as amended. This Department has\nheretofore followed the practice of declining to render opinions upon\nquestions contemporaneously pending before the courts for determination and which are within their competency to decide.\nStatus of Employees Affected by McKellar Proviso in the Emergency Appropriation Act, Fiscal Year 1935, 38 Op. Att\xe2\x80\x99y Gen. 139, 150 (1934).\nIn an opinion to the Secretary of the Treasury dated March 3, 1921, Attorney\nGeneral Palmer said in part:\nIt appears that at least the first of the questions submitted by you\nhas been passed upon by Judge Hazel, of the United States District\nCourt for the Western District of New York, and that an appeal from\nhis decision is now pending. The answers to the other questions are\nnecessarily dependent upon the answer to the first. I regret that under\nthese circumstances I can not comply with your request, as it has\nlong been the settled rule of this Department not to render an opinion\nupon any question whose answer may bring it into conflict with a judicial tribunal, especially while the question is under consideration\nby the courts.\nRailway Companies\xe2\x80\x94Extra Compensation for Customs Officers\xe2\x80\x94Attorney General\xe2\x80\x99s Opinion, 32 Op. Att\xe2\x80\x99y Gen. 472, 473 (1921) (citing Attorney-General, 20\nOp. Att\xe2\x80\x99y Gen. 618 (1893); Attorney-General\xe2\x80\x94Legacy Tax, 23 Op. Att\xe2\x80\x99y Gen. 221\n(1900); Returning Chinese Laborers\xe2\x80\x94Treasury Regulations, 23 Op. Att\xe2\x80\x99y Gen.\n582, 585 (1901); Attorney-General\xe2\x80\x94Opinion, 24 Op. Att\xe2\x80\x99y Gen. 59 (1902);\nAttorney-General\xe2\x80\x94Opinion, 25 Op. Att\xe2\x80\x99y Gen. 369 (1905)).\nIn an opinion to the Secretary of the Treasury dated September 7, 1900, Attorney General Griggs said:\nIt is not the practice of this Department to give an opinion in a matter\nwhere the question involved is disputable and is the subject of a\npending suit and awaiting judicial determination.\nAttorney-General\xe2\x80\x94Legacy Tax, 23 Op. Att\xe2\x80\x99y Gen. 221, 221\xe2\x80\x9322 (1900).\n\n446\n\n\x0c'


b'Presidential Implementation of Emergency Powers Under the\nInternational Emergency Economic Powers Act\nT h e P re sid en t m ay issue a single ex ecu tiv e o r d e r.in v o k in g the re m a in d e r o f his p o w e rs\nu n d e r th e In te rn a tio n a l E m e rg e n c y E c o n o m ic P o w e rs A c t, in response to th e situation\nin Iran , w h ich w o u ld perm it him to block th e p ro p e rty o f Iran ian citizen s as w ell as\nth at o f th eir g o v e rn m e n t, an d to effect a c o m p le te tra d e em b arg o . T h e P re sid en t m ay\nd e le g a te th e ex ercise o f all im p lem en tin g p o w e rs to th e S e c re ta ry o f the T reasu ry .\nS u ch an o rd e r need n ot d e c la re a n e w em e rg e n c y , but c o u ld sim ply find th at th e\nu n d e rly in g e m e rg e n c y co n tin u es, an d su ch an o r d e r n eed n ot be acco m p an ied by an\nim m ed iate rep o rt to C o n g ress.\n\nN ovem ber 21, 1979\nM E M O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L\nThis responds to your question o f N ovem ber 14, 1979, w hether\nfuture actions under the International Em ergency E conom ic Powers\nA ct (IE E P A ) (50 U.S.C. \xc2\xa7\xc2\xa7 1701-06 (Supp. I 1977)) that are not within\nthe scope o f Executive O rder No. 12,170 3 C .F.R . 457 (1979) can be\nauthorized by a single executive order invoking all the statute\xe2\x80\x99s powers\nand granting the Secretary o f the T reasury discretion to take any\nparticular action, or w hether there must be a separate executive order\nfor each increm ental step. Executive O rder No. 12,170, \xe2\x80\x9cBlocking Ira\xc2\xad\nnian G overnm ent P roperty,\xe2\x80\x9d confines itself to blocking the property of\n\xe2\x80\x9cthe G overnm ent o f Iran, its instrumentalities and controlled entities\nand the C entral Bank o f Iran.\xe2\x80\x9d T he IE E P A also includes authority to\nlimit or prohibit any transfer o f property subject to U.S. jurisdiction in\nw hich a foreign national has an interest. \xc2\xa7 1702(a). This w ould author\xc2\xad\nize blocking the property o f Iranian citizens as well as that o f their\ngovernm ent, and a com plete trade em bargo.1 If the President deter\xc2\xad\nmines that the authority to make these rather basic policy decisions\nshould be delegated to the Secretary o f the Treasury, we believe that\ndelegation could be legally accom plished by issuing a single executive\norder authorizing use o f the IE E P A \xe2\x80\x99s remaining provisions, and that a\nblanket delegation o f implementing authority to the Secretary w ould be\nconsistent w ith the statute.\n\xe2\x80\x98T h e legislative history o f the Export A dm inistration A ct o f 1979, Pub. L. No. 96-72, 93 Stat. 503,\n50 U.S.C. A pp. \xc2\xa7 2401 et seq., makes clear that total trade em bargoes are to be accom plished under the\nIE E P A , rath er than by export controls. See the conference report, 125 Cong. Rec. 26,593 (1979).\nPartial em bargoes can, o f course, be accom plished through export control.\n\n146\n\n\x0cT w o prelim inary points should be made. First, there should be no\nneed for further declarations of national em ergency while the present\ncrisis exists. T he IE E P A allows the exercise o f \xe2\x80\x9cany authority\xe2\x80\x9d under\nits substantive grants in \xc2\xa7 1702 once an em ergency is declared to deal\nwith an external threat to the national security, but requires a new\ndeclaration for a \xe2\x80\x9cnew threat.\xe2\x80\x9d \xc2\xa7 1701. This reflects purposes the\nIE E P A shares with the National Em ergencies Act, 50 U.S.C. \xc2\xa7 160151, to prevent the indefinite duration o f national emergencies and to\nprovide Congress an opportunity to term inate any particular em ergency\nby concurrent resolution. S. Rep. No. 466, 95th Cong., 1st Sess. 2\n(1977). T he statute and its history provide little help in defining what is\na \xe2\x80\x9cnew threat\xe2\x80\x9d requiring a new declaration o f em ergency, beyond the\ngeneral purpose o f preventing emergencies from surviving long past\ntheir initiating cause. T he situation in Iran seems clearly to constitute a\nsingle, continuing em ergency.\nSecond, the Em ergencies A ct requires the President to specify \xe2\x80\x9c the\nprovisions of law under w hich he proposes that he, or other officers\nwill act.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1631. Such a specification is to be made in the\n* declaration o f em ergency or in \xe2\x80\x9cone or more contem poraneous or\nsubsequent executive orders published in the Federal Register and\ntransm itted to Congress.\xe2\x80\x9d Id. Invocation o f em ergency powers other\nthan those in the IE E P A to deal with Iran would thus require a new\nexecutive order specifying the statutes involved.\nThe IE E P A appears to assume that the President will take a series of\nimplementing actions under a single declaration of national em ergency,\nand that not all o f these need be done by executive order. First, under\n\xc2\xa7 1701(a), \xe2\x80\x9cany authority\xe2\x80\x9d granted by \xc2\xa7 1702 may be exercised to deal\nwith a particular threat. Second, the pow ers granted in \xc2\xa7 1702 are\nphrased in a fashion that contem plates a series o f different actions: \xe2\x80\x9c the\nPresident may, under such regulations as he may prescribe, by means of\ninstructions, licenses, or otherw ise [take authorized substantive ac\xc2\xad\ntions].\xe2\x80\x9d Third, the requirem ent in \xc2\xa7 1703(b) to report to Congress on\nthe exercise o f \xe2\x80\x9cany o f the authorities\xe2\x80\x9d o f the A ct is clearly tied to the\ninitial declaration o f an em ergency, and is followed in \xc2\xa7 1703(c) by a\nrequirem ent for follow-up reports at least each six months, describing\nactions taken under the statute and im portant new information. F ourth,\n\xc2\xa7 1704 delegates broad pow er to the President to \xe2\x80\x9cissue such regula\xc2\xad\ntions, . . . as may be necessary\xe2\x80\x9d to implement the Act. And fifth, the\nEm ergencies A ct, 50 U.S.C. \xc2\xa7 1641, requires the President to keep a file\nof his significant orders, \xe2\x80\x9cincluding executive orders,\xe2\x80\x9d and requires\neach executive agency to keep a file o f its rules, issued pursuant to an\nemergency. These are then to be transm itted prom ptly to Congress.\n\xc2\xa7 1641(b).\nT he Em ergencies A ct contem plates subdelegation o f presidential\nfunctions in tw o provisions mentioned above (\xc2\xa7\xc2\xa7 1631, 1641(a-b)). T he\n147\n\n\x0cIE E P A does not explicitly authorize subdelegation, but there is implicit\nsupport for it in the existence o f rulem aking pow er and in references to\na num ber o f im plementing actions (e.g., \xe2\x80\x9clicenses\xe2\x80\x9d in \xc2\xa7 1702(a)(1)).\nN othing in the statute or its history suggests the unavailability o f the\nPresident\xe2\x80\x99s general pow ers o f subdelegation under 3 U.S.C. \xc2\xa7\xc2\xa7 301\xe2\x80\x9402,\nw hich allow delegation o f \xe2\x80\x9cany function w hich is vested in the Presi\xc2\xad\ndent by law \xe2\x80\x9d to a cabinet m em ber (\xc2\xa7 301), \xe2\x80\x9cif such law does not\naffirm atively prohibit delegation. . . .\xe2\x80\x9d (\xc2\xa7 302.)\nW e therefore conclude that the President may issue a single execu\xc2\xad\ntive o rd er invoking the rem ainder o f his pow ers under the IE E P A , and\ndelegating their exercise to the Secretary o f the Treasury. Such an\no rd er could find that the underlying em ergency continues and necessU\ntates the invocation o f all pow ers remaining under the IE E P A . It could\nthen restate the penultim ate sentence o f Executive O rder No. 12,170,\nw ith the appropriate changes (italicized here): \xe2\x80\x9cT he Secretary is au\xc2\xad\nthorized to em ploy all pow ers granted to me by the International\nEm ergency Econom ic Pow ers A ct regarding the property o f Iran or\nIranian nationals. \xe2\x80\x9d It does not appear to be necessary to accom pany o\nsuch an order with an immediate report to Congress, for reasons stated\nabove.\nJo\n\nhn\n\nM.\n\nH\n\narm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n148\n\n\x0c'


b'February 6, 1978\n\n78-92\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE PRESIDENT\nRecess Appointments\xe2\x80\x94 Constitution (Article II, \xc2\xa7 2,\ncl. 3)\xe2\x80\x94 Legal Services Corporation\xe2\x80\x94Effect of Stat\xc2\xad\nutory Holdover Provisions\n\nThis responds to your inquiry w hether the holdover provisions o f the Legal\nServices Corporation Act preclude the President from making recess appoint\xc2\xad\nments to its board o f directors after the terms o f the members have expired but\nwhile they were serving as holdovers. It is our conclusion that these provisions\ndo not affect the President\xe2\x80\x99s power.\nSection 2 of the Legal Services Corporation Act o f 1974, Pub. L. 93-355, 88\nStat. 379, 42 U .S.C . \xc2\xa7 2996c(b) (1976) provides that the term o f office o f the\nmembers o f the board o f directors of the Corporation is 3 years, except that 5 of\nthe members first appointed have a term o f 2 years.* The subsection continues:\n\xe2\x80\x9c Each member of the Board shall continue to serve until the successor to such\nmember has been appointed and qualified.\xe2\x80\x9d The President appointed five\nmembers of the Board for terms of 2 years beginning on July 14, 1975; the\nterms expired on July 13, 1977. No new appointments were made by the\nPresident during the first session of the 95th Congress. On January 19, 1978,\nprior to the opening o f the second session o f the 95th Congress, the President\nmade recess appointments to those positions pursuant to Article II, \xc2\xa7 2, cl. 3, of\nthe Constitution. That clause provides in pertinent part:\nThe President shall have Power to Fill up all Vacancies that may\nhappen during the Recess o f the Senate . . . .\nThe exercise o f the power to make recess appointments thus presupposes the\nexistence o f a vacancy. One o f the directors replaced by the President asserts\nthat despite the expiration o f his 2-year term on July 13, 1977, the position was\nnot vacant because under the statute he continued to serve until his successor\nhas been appointed and qualified.\n\n*The m em bers o f the Board are appointed by the President with the advice and consent of the\nSenate. 42 U .S .C . \xc2\xa7 2996c(a) (1976).\n\n398\n\n\x0cIt has been the view o f this Department, going back to the Attorney\nGeneral\xe2\x80\x99s opinion of 1880 (16 Op. Atty. Gen. 538), that where the statutory\nterm of an officer has expired, the interim filling of his position, either by a\ncourt appointment (United States Attorney) or by a holdover provision, does\nnot fill a vacancy in the constitutional sense.\nThere are various methods designed to provide for the temporary perform \xc2\xad\nance of the duties of an officer after he has resigned or his term has expired.\nAmong them are the temporary appointments by the courts as in the case of\nU.S. Attorneys and Marshals (28 U .S.C. \xc2\xa7\xc2\xa7 546, 565) (1976), or holdover\nclauses as in the cases of United States Attorneys and Marshals (28 U .S.C .\n\xc2\xa7\xc2\xa7 541(b), 561(b) (1976)), of territorial judges (48 U .S.C . \xc2\xa7\xc2\xa7 1424(b), 1614\n(1976)), and of most, if not all, regulatory commissions. Such a temporary per\xc2\xad\nformance after the expiration of the incumbent\xe2\x80\x99s statutory term, however, does\nnot \xe2\x80\x9c fill\xe2\x80\x9d the vacancy. The office remains vacant and the President has the\npower to make appointments to it during a recess of the Senate. Were it other\xc2\xad\nwise the Senate could perpetuate in office one serving under a holdover provi\xc2\xad\nsion by failing to confirm his successor. Moreover, Congress could deprive the\nPresident of his constitutional power to make recess appointments by the pass\xc2\xad\nage of legislation providing for the interim filling of the office. See, Peck v.\nUnited States, 39 Ct. Cl. 125, 134 (1904).\nIn 1880, the Attorney General ruled that the President had the power to make\na recess appointment to the office of a United States Attorney although the\nposition was then being temporarily filled by a court appointment pursuant to\nwhat is now 28 U .S.C . \xc2\xa7 546 (1976). The Attorney General stated:\n. . . The authority given to fill the office to the circuit justice is an\nauthority only to fill it until action is taken by the President. The\noffice in no respect ceases to be vacant in the sense of the\nConstitution because of this appointment, for the reason that the\nappointment itself contemplates only a temporary mode of having the\nduties of the office performed until the President acts by an\nappointment.\n\n. . . The office is not the less vacant, so far as his power of\nappointment is concerned, when the only power conferred upon any\none else is a power to make an appointment which shall entitle the\nappointee to serve until an appointment is made by the President, and\nno longer. [16 Op. A. G. 539-540 (1880).]\nIn an analogous situation arising at the same time in another judicial district,\nMr. Justice Woods, sitting in circuit, came to the same conclusion as the\nAttorney General. In re F arrow , 3 Fed. 112, 116-117 (C.C. N.D. G a., 1880).\nThe Department has consistently held that holdover provisions do not fill a\nvacancy but merely provide for a temporary method of ensuring the perform\xc2\xad\nance of the functions o f the office after the expiration of the term <pf the\n399\n\n\x0cincumbent; hence, they do not prevent the President from exercising his\nconstitutional authority to make recess appointments. In 1950, the Deputy\nAttorney General advised that the President had the power to make recess\nappointments to the Interstate Commerce Commission and the Reconstruction\nFinance Corporation, although the officials whose terms had expired were\nserving under holdover provisions. The Departm ent\xe2\x80\x99s analysis in 1960 of bills\ncontaining holdover provisions with respect to several independent agencies\nconcluded that those provisions would not interfere with the President\xe2\x80\x99s power\nto make recess appointments. Again, in 1972, the Department advised the\nInterstate Commerce Commission that the holdover provisions o f the Interstate\nCommerce Act did not preclude the President from making recess appoint\xc2\xad\nments.\nPeck v. U nited States, 39 Ct. Cl. 125, supra, cited by the General Counsel of\nthe Legal Services Corporation, does not hold to the contrary. It stands only for\nthe proposition that where there is no present vacancy one cannot be created by\na recess appointment. The Presidential practice is fully in accord. For example,\na United States Attorney cannot be removed during his statutory term by giving\na recess appointment to a successor, the reason being that there is no vacancy to\nbe filled. Accordingly, the President must first remove the incumbent. Where,\nhowever, a United States Attorney holds over, or serves under a court\nappointment, a vacancy exists. The President therefore can make a recess\nappointment that has the effect of removing an incumbent who is merely\nserving on a temporary basis. That rule governs here.\nL eon U\n\nlm an\n\nD epu ty A ssistant A ttorney G eneral\nOffice o f L egal Counsel\n\n400\n\n\x0c'