b'Application of the Davis-Bacon Act\nto Urban Development Projects\nthat Receive Partial Federal Funding\nSection 110 o f the Housing and Com munity Developm ent Act o f 1974 requires that those\nengaged in construction work th at is financed w ith federal funds (whether in whole or in part)\nreceive wages at rates prevailing in the locality as determined by the Secretary o f Labor under\nthe Davis-Bacon Act. However, if the construction work is not financed with federal funds,\nthe Davis-Bacon Act wage rates need not be paid, even if other aspects o f the construction\nproject, such as land, fixtures, o r services, receive federal funds pursuant to the Act.\nThis question arose pursuant to a dispute between the Secretary o f Labor and the Secretary o f\nH ousing and Urban Development in the course o f exercising their respective authorities under\nthe Act. T he Office o f Legal Counsel has jurisdiction to resolve the dispute pursuant to\nE xecutive O rder No. 12146.\n\nAugust 6, 1987\nM\n\nem orandum\n\nD epa rtm en t\n\nof\n\nO p in io n\n\nH o u s in g\n\nfor th e\n\nand\n\nU\n\nSecretary,\n\nrban\n\nD evelopm ent\n\nThis memorandum responds to your request for the opinion of the Attorney\nGeneral on the proper interpretation of \xc2\xa7 110 of the Housing and Community\nDevelopment Act of 1974 (Act), 42 U.S.C. \xc2\xa7 5310. The Attorney General has\nreferred this matter to the Office of Legal Counsel for resolution.\nI. Background\nTitle I of the Act authorizes the Secretary of Housing and Urban Develop\xc2\xad\nment (HUD) to provide Community Development Block Grants (CDBG) and\nUrban Development Action Grants (UDAG) to States and localities for \xe2\x80\x9cthe\ndevelopment of viable urban communities, by providing decent housing and a\nsuitable living environment and expanding economic opportunities, principally\nfor persons of low and moderate income.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 5301(c). Section 110 of\nthe Act requires that \xe2\x80\x9c[a]ll laborers and mechanics employed by contractors or\nsubcontractors in the performance of construction work financed in whole or in\npart with assistance received under this chapter shall be paid wages at rates . . .\ndetermined by the Secretary of Labor in accordance with the Davis-Bacon\nAct.\xe2\x80\x9d 42 U.S.C. \xc2\xa75310.\n92\n\n\x0cIn 1985, the Department of Labor took the view that \xc2\xa7 110 requires payment\nof Davis-Bacon wages not only when UDAG and CDBG funds are used\ndirectly to pay for the activities commonly thought of as \xe2\x80\x9cconstruction\xe2\x80\x9d of a\nbuilding, but also when those funds are used for other activities that are\nintegrally and proximately related to that construction, even if no federal funds\nare expended directly for the construction work. The Department of Labor\nprovided three examples of the application of this standard:\nFor example, if UDAG or CDBG funds were used to acquire the\nland upon which construction was later to take place, that con\xc2\xad\nstruction should be done with Davis-Bacon wages, even if all\nUDAG or CDBG dollars had been expended before the com\xc2\xad\nmencement of the direct construction activity. .. . Other such\ncosts could include, for example, engineering and architectural\nfees, materials, and equipment or machinery to be installed as\npart of the building.\nLetter to Robert A. Georgine, President, Building & Construction Trades\nDepartment, AFL-CIO from Susan R. Meisinger, Deputy Under Secretary for\nEmployment, Department of Labor at 2 (July 31, 1985) (Labor Opinion).\nHUD disputes this interpretation on the grounds that, in HUD\xe2\x80\x99s view, it\nwould initiate a drastic departure from the consistent application of DavisBacon requirements under the Act. Accordingly, HUD requested that Labor\nreconsider the position taken in its July 31, 1985 letter. On July 21, 1987, the\nSecretary of Labor responded by withdrawing the \xe2\x80\x9cintegrally and proximately\nrelated\xe2\x80\x9d test and stating that \xe2\x80\x9cthe question must be whether the construction\nwork is federally financed,\xe2\x80\x9d and that \xe2\x80\x9cthe mere use of federal funds to finance\nthe purchase of land . . . does not trigger Davis-Bacon coverage under the\nstatute.\xe2\x80\x9d Letter to the Honorable Samuel R. Pierce, Jr., Secretary, Department\nof Housing and Urban Development, from the Honorable William E. Brock,\nSecretary, Department of Labor (July 21, 1987).\nThe Secretary of Labor\xe2\x80\x99s letter, however, reserved the question of \xe2\x80\x9cthe\napplication of Davis-Bacon requirements to projects on which UDAG/CDBG\nfunds are used to purchase equipment installed as part of the project,\xe2\x80\x9d and,\napparently, the question of the application of Davis-Bacon requirements to\nnon-federally funded construction work when federal funds are used to pay for\n\xe2\x80\x9cengineering and architectural fees.\xe2\x80\x9d Id. After reviewing the Secretary of\nLabor\xe2\x80\x99s letter, the Secretary of HUD noted that the letter \xe2\x80\x9cdoes not resolve\nother issues . .. raised [in the Labor Opinion]. In particular, whether UDAG/\nCDBG financing of architectural and engineering fees and purchase of equip\xc2\xad\nment would require prevailing wages on related private construction work is\nunanswered . . . . As your letter fails to resolve all the issues springing from the\n[Labor Opinion], I must continue to seek a comprehensive decision from the\nAttorney General.\xe2\x80\x9d Letter to the Honorable William E. Brock, Secretary,\nDepartment of Labor, from the Honorable Samuel R. Pierce, Jr., Secretary,\nDepartment of Housing and Urban Development (July 28, 1987).\n93\n\n\x0cII. Discussion\nA. Jurisdiction\n\nBefore turning to the substantive issues presented by your request, we\naddress a threshold jurisdictional matter: whether the Attorney General, and\nhence this Office, has authority to render an opinion on the proper interpreta\xc2\xad\ntion of the Housing and Community Development Act at the request of the\nSecretary of HUD. The Department of Labor has suggested that Reorganiza\xc2\xad\ntion Plan No. 14 of 1950,15 Fed. Reg. 3176 ( reprinted in 5 U.S.C. app. at 1050\n(1982) and in 64 Stat. 1267 (1950)), precludes the Attorney General from\nrendering such an opinion. In its view, the Secretary of Labor has the exclusive\nauthority to issue a ruling concerning the proper interpretation of the DavisBacon provisions of the Housing and Community Development Act. This\nview, however, misconstrues the Reorganization Plan as well as the authority\nand functions of the Attorney General and the Secretary of Housing and Urban\nDevelopment.\nSection 110 of the Act provides:\nAll laborers and mechanics employed by contractors or subcon\xc2\xad\ntractors in the performance of construction work financed in\nwhole or in part with assistance received under this chapter shall\nbe paid wages at rates not less than those prevailing on similar\nconstruction in the locality as determined by the Secretary of\nLabor in accordance with the Davis-Bacon Act, as amended (40\nU.S.C. \xc2\xa7\xc2\xa7 276a, 276a-5).. . The Secretary of Labor shall have,\nwith respect to such labor standards, the authority and functions\nset forth in Reorganization Plan Numbered 14 of 1950 (15 F.R.\n3176; 64 Stat. 1267) and section 276c of title 40.\n42 U.S.C. \xc2\xa7 5310. The Reorganization Plan, in turn, provides:\nIn order to assure coordination of administration and consis\xc2\xad\ntency of enforcement o f the labor standards provisions of each\nof the following Acts by the Federal agencies responsible for the\nadministration thereof, the Secretary of Labor shall prescribe\nappropriate standards, regulations, and procedures, which shall\nbe observed by these agencies . . . .\nReorganization Plan No. 14 of 1950, 15 Fed. Reg. 3176 (reprinted in 5 U.S.C.\napp. at 1050 (1982) and in 64 Stat. 1267 (1950)).\nLabor argues that its interpretation of \xc2\xa7 110 constitutes an appropriate stan\xc2\xad\ndard, regulation, or procedure to enforce the labor standard provisions of the\nAct. But even assuming the validity of this argument, the Reorganization Plan\nspeaks only to the respective functions of HUD and Labor in administering the\nHousing and Community Development Act. The Reorganization Plan does not\npreclude either the head of a department from seeking, or the Attorney General\n94\n\n\x0cfrom rendering, an opinion on a question of law arising in the administration of\nhis department.\nBy law, \xe2\x80\x9c[t]he head of an executive department may require the opinion of\nthe Attorney General on questions of law arising in the administration of his\ndepartment.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 512. The only limitation on the right of the head of an\nexecutive department to obtain an opinion of the Attorney General is that the\nquestion presented must be one that actually arises in the administration of his\ndepartment. See 31 Op. Att\xe2\x80\x99y Gen. 234 (1918); 31 Op. Att\xe2\x80\x99y Gen. 127 (1917);\n20 Op. Att\xe2\x80\x99y Gen. 178 (1891). Thus, the initial inquiry is whether the question\npresented by the Secretary of HUD \xe2\x80\x94 whether the acquisition of land, fixtures,\nor architectural and engineering services with federal assistance requires a\nfinding that \xe2\x80\x9cintegrally and proximately related\xe2\x80\x9d construction work paid for\nentirely with non-federal funds must be deemed financed in whole or in part\nwith federal assistance \xe2\x80\x94 is one \xe2\x80\x9carising in the administration of his depart\xc2\xad\nment\xe2\x80\x9d within the meaning of 28 U.S.C. \xc2\xa7 512.\nWe think that it clearly is. The Secretary of HUD is charged with the\nadministration of the Act. The interpretation given to \xc2\xa7 110 determines the\nnature and contents of the contracts the Secretary must enter into with state and\nlocal recipients of UDAG and CDBG funds. As the Secretary stated in his letter\nof May 13, 1987, to the Attorney General:\nThe need for a resolution of this dispute is even more urgent\nnow than when I wrote you last October: the construction season\nhas begun; our Urban Development Action Grant (UDAG) sub\xc2\xad\nmissions are due in May and July; and the majority of our\nCommunity Development Block Grant (CDBG) submissions\nwill be coming in the next two months.\nLetter to the Honorable Edwin Meese III, Attorney General, from the Honor\xc2\xad\nable Samuel R. Pierce, Jr., Secretary, Department of Housing and Urban\nDevelopment (May 13, 1987). The Reorganization Plan confirms this conclu\xc2\xad\nsion. The Plan itself recognizes that although federal agencies must observe\n\xe2\x80\x9cappropriate standards, regulations, and procedures\xe2\x80\x9d prescribed by the Secre\xc2\xad\ntary of Labor, these agencies remain responsible for the administration of the\nunderlying Acts. As the Message of the President accompanying the Reorgani\xc2\xad\nzation Plan states: \xe2\x80\x9cThe actual performance of enforcement activities . . . will\nremain the duty of the respective agencies awarding the contracts or providing\nthe Federal assistance.\xe2\x80\x9d 5 U.S.C. app. at 1050-51 (1982).\nOur conclusion that the Secretary is entitled by law to the opinion of the\nAttorney General is consistent with the analysis and conclusion of Attorney\nGeneral Levi in a situation virtually identical to this one. See 43 Op. Att\xe2\x80\x99y Gen.\nNo. 8 (Jan. 11, 1977). There, the Secretary of Commerce sought the opinion of\nthe Attorney General concerning the meaning of the phrase \xe2\x80\x9ccontractors or\nsubcontractors\xe2\x80\x9d as used in \xc2\xa7 109 of the Local Public Works Capital Develop\xc2\xad\nment and Investment Act of 1976. That section, in language virtually identical\nto that of \xc2\xa7 110, provides:\n95\n\n\x0cAll laborers and mechanics employed by contractors or subcon\xc2\xad\ntractors on projects assisted by the Secretary under this Act shall\nbe paid wages at rates not less than those prevailing on similar\nconstruction in the locality as determined by the Secretary of\nLabor in accordance with the Davis-Bacon Act, as amended (40\nU.S.C. \xc2\xa7\xc2\xa7 276a-276a-5).. . . The Secretary of Labor shall have,\nwith respect to the labor standards specified in this provision,\nthe authority and functions set forth in Reorganization Plan\nNumbered 14 of 1950 (15 F.R. 3176; 64 Stat. 1267; 5 U.S.C.\n\xc2\xa7\xc2\xa7 133z-15), and section 2 of the Act of June 13, 1964, as\namended (40 U.S.C. \xc2\xa7 276c).\nThe Secretary of Labor took the position that the phrase included state and\nlocal governments who performed construction work with their own work\nforce. The Secretary of Commerce disagreed, contending that the terms \xe2\x80\x9ccon\xc2\xad\ntractors or subcontractors\xe2\x80\x9d could refer only to those who contracted with\nlaborers and mechanics to perform the work. The Attorney General rejected the\nLabor Department\xe2\x80\x99s claim that he was without authority to render the requested\nopinion, finding that \xe2\x80\x9cthe Secretary of Commerce\xe2\x80\x99s administrative responsibil\xc2\xad\nity for implementation of the Local Public Works Act at least requires him to\nsatisfy himself concerning any doubts he may have regarding the lawfulness of\nthe Secretary of Labor\xe2\x80\x99s determination, and permits him to seek my advice for\nthat purpose.\xe2\x80\x9d 43 Op. Att\xe2\x80\x99y Gen. No. 8, at 3. The opinion continued:\nThis conclusion will be seen as particularly appropriate when it\nis recognized that, as will be discussed below, the present con\xc2\xad\ntroversy does not involve a uniform interpretation which the\nSecretary of Labor seeks to apply to the Davis-Bacon Act and all\nrelated acts, but rather a special rule applicable to the Local\nPublic Works Act. To the extent the outcome hinges upon the\npeculiar text or peculiar circumstances of that law, the policy\nconsiderations supporting an assertion of exclusive cognizance\nin the Secretary of Labor become less persuasive, and the issue\nbecomes more appropriate for \xe2\x80\x94 if not resolution by the Secre\xc2\xad\ntary of Commerce \xe2\x80\x94 at least examination by the Attorney\nGeneral at the Secretary\xe2\x80\x99s instance.\nId. at 3\xe2\x80\x944. This passage applies with equal force to the present request.\n\nExecutive Order No. 12146, concerning the resolution of interagency legal\ndisputes, does not alter this conclusion. Executive Order No. 12146 provides in\npertinent part:\n1\xe2\x80\x94401. Whenever two or more executive agencies are unable to\nresolve a legal dispute between them, including the question of\nwhich has jurisdiction to administer a particular program or to\nregulate a particular activity, each agency is encouraged to\nsubmit the dispute to the Attorney General.\n96\n\n\x0c1-402. Whenever two or more Executive agencies whose heads\nserve at the pleasure of the President are unable to resolve such a\nlegal dispute, the agencies shall submit the dispute to the Attor\xc2\xad\nney General prior to proceeding in any court, except where there\nis specific statutory vesting of responsibility for a resolution\nelsewhere.\nSection 1-401 authorizes and encourages executive agencies to submit their\nlegal disputes to the Attorney General. This provision applies not only to the\nexecutive departments, but also to all other agencies in the Executive Branch.\nExecutive Order No. 12146 thus expands the authority of the Attorney General\nto render legal opinions beyond his statutory obligation to render opinions at\nthe request of the heads of executive departments on questions of law arising in\nthe administration of their departments. See 28 U.S.C. \xc2\xa7 512.1\nIn addition, when the heads of the agencies serve at the pleasure of the\nPresident, \xc2\xa7 1-402 requires the agencies to submit legal disputes they are\nunable to resolve to the Attorney General \xe2\x80\x9cexcept where there is specific\nstatutory vesting of responsibility for a resolution elsewhere.\xe2\x80\x9d Labor contends\nthat the exception precludes resolution of the current dispute by the Attorney\nGeneral. Even assuming, however, that Reorganization Plan No. 14 of 1950 \xe2\x80\x94\ndirecting the Secretary of Labor to prescribe appropriate labor-related stan\xc2\xad\ndards, regulations, and procedures \xe2\x80\x94 constitutes \xe2\x80\x9cspecific statutory vesting of\nresponsibility for a resolution\xe2\x80\x9d of the present dispute within the Secretary of\nLabor, the reorganization legislation\xe2\x80\x99 in no sense affects the authority of the\nhead of an executive department to seek, or the Attorney General to render, an\nopinion under 28 U.S.C. \xc2\xa7 512 on questions of law that arise in the administra\xc2\xad\ntion of his department. Rather, under the above assumption, Reorganization\nPlan No. 14 of 1950 at most would mean that \xc2\xa7 1-402 of Executive Order No.\n12146 does not require the Secretaries of HUD and Labor to submit this legal\ndispute to the Attorney General.\nThus, Executive Order No. 12146 is not fully apposite to the present request.\nNeither Reorganization Plan No. 14 of 1950 nor Executive Order No. 12146\npurport in any way to preclude the head of an executive department from\nrequesting the opinion of the Attorney General on questions of law arising in\nthe administration of his department. Since 1789, it has been the duty of the\nAttorney General \xe2\x80\x9cto give his advice and opinion upon questions of law .. .\n1 U nder 28 U.S.C. \xc2\xa7 512, A ttorneys General have felt constrained to decline requests for legal opinions\nfrom executive agencies not w ithin one o f the executive departm ents. See, e.g., 37 Op. A tt\xe2\x80\x99y Gen. 488, 490\n(1934) (declining to give an opinion at the request o f the Reconstruction Finance C orporation on the ground\nthat \xe2\x80\x9cthe Attorney G eneral is authorized to render opinions only upon the request o f the P resident or the head\no f an executive departm ent\xe2\x80\x9d); 20 Op. A tt\xe2\x80\x99y Gen. 312, 313 (1892) (stating that the \xe2\x80\x9cCivil S ervice C om m ission\nis not included w ithin any o f the great D epartm ents o f G overnm ent\xe2\x80\x9d and that \xe2\x80\x9c [ujntil the Com m ission shall\nrequest the President, to whom they are directly responsible, to present the question o f law arising in the\ndischarge o f their duties to the A ttorney General, he is not called upon to give, and should not under the law\ngive, his opinion\xe2\x80\x9d ). W ith the prom ulgation o f Executive O rder No. 12146, the President has authorized all\nexecutive agencies to request the opinion o f the A ttorney G eneral w henever a legal dispute arises between\nsuch agencies.\n\n97\n\n\x0cwhen requested by the heads of any of the departments, touching any matters\nthat may concern their departments.\xe2\x80\x9d Judiciary Act of 1789, ch. 20, \xc2\xa7 35,1 Stat.\n73, 93. Accordingly, by law, the heads of executive departments may require\nthe opinion of the Attorney General, regardless o f whether a dispute exists on\nthe question within the Executive Branch. See 28 U.S.C. \xc2\xa7 512. All that is\nrequired is that the question presented be one arising in the administration of\nthe department whose head requests the opinion. Thus, even if HUD had never\ndisagreed with Labor\xe2\x80\x99s interpretation of \xc2\xa7 110 the Secretary of HUD would be\nentitled to request and receive the opinion of the Attorney General on that\nquestion. It goes without saying, therefore, that the Secretary of Labor\xe2\x80\x99s\nwithdrawal of the Labor Department\xe2\x80\x99s prior interpretation of \xc2\xa7 110 in no way\nrelieves the Attorney General of his statutory authority \xe2\x80\x94 indeed, his responsi\xc2\xad\nbility \xe2\x80\x94 to provide the Secretary of HUD with his opinion.2 The presence or\nabsence of a contrary or consistent Labor Department interpretation is simply\nirrelevant to the Secretary\xe2\x80\x99s statutory right \xe2\x80\x9cto require the opinion of the\nAttorney General.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 512. Because the Secretary of HUD has not\nwithdrawn his request, the Attorney General\xe2\x80\x99s legal obligation is to render an\nopinion on the question presented.\nFinally, the Attorney General\xe2\x80\x99s authority to give his opinion at the request of\nthe Secretary is also confirmed by 28 U.S.C. \xc2\xa7 516 and 5 U.S.C. \xc2\xa7 3106. The\nformer reserves generally to the Attorney General the conduct of all litigation\nin which the United States, an agency, or officer thereof is a party. The latter\ngenerally prohibits the head of an Executive department from employing an\nattorney for the conduct of litigation in which the United States, an agency, or\nan employee thereof is a party, requiring instead that the matter be referred to\nthe Department of Justice. Both provisions admit of exceptions only when\n\xe2\x80\x9cotherwise authorized by law.\xe2\x80\x9d Although Congress has established \xe2\x80\x9ca solicitor\nfor the Department of Labor,\xe2\x80\x9d 29 U.S.C. \xc2\xa7 555, the solicitor has no general\nlitigating authority; his authority is narrowly drawn, see 29 U.S.C. \xc2\xa7 663\n(representation of the Secretary of Labor in occupational safety and health\nlitigation); 29 U.S.C. \xc2\xa7 1852(b) (litigation for the protection of migrant and\nseasonal workers); 30 U.S.C. \xc2\xa7 822 (representation of the Secretary of Labor in\nmine safety and health litigation), and nevertheless \xe2\x80\x9csubject to the direction\nand control of the Attorney General.\xe2\x80\x9d Id. The Attorney General\xe2\x80\x99s authority to\nconduct litigation on behalf of the United States necessarily includes the\nexclusive and ultimate authority to determine the position of the United States\non the proper interpretation of statutes before the courts. Thus, because this\nquestion of the proper interpretation of \xc2\xa7 110 is the subject of pending litigation\nto which the Secretary of HUD is a party, see D airy Development Ltd. v.\nP ierce, Civ. Action No. 86-1353-R (W.D. Okla.), the Attorney General has\nboth the authority and the obligation to decide the question presented by the\nSecretary of HUD.\n2 See 2 O p. A tt\xe2\x80\x99y G en. 31 1 (1830), in w hich Attorney G eneral B errien observed \xe2\x80\x9cthat it is made my duty to\ngive my opinion on all questions referred to me by the heads o f departm ents \xe2\x80\x98touching any matters that may\nconcern th eir d ep artm en ts.\xe2\x80\x99\xe2\x80\x9d Id. at 3 1 1.\n\n98\n\n\x0cB. Substantive Issues\n\nSection 110 of the Act provides:\nAll laborers and mechanics employed by contractors or sub\xc2\xad\ncontractors in the performance of construction work financed in\nwhole or in part with assistance received under this chapter shall\nbe paid wages at rates not less than those prevailing on similar\nconstruction in the locality as determined by the Secretary of\nLabor in accordance with the Davis-Bacon Act, as amended (40\nU.S.C. \xc2\xa7 276a, 276a-5): Provided, That this section shall apply\nto the rehabilitation of residential property only if such property\nis designed for residential use for eight or more families. The\nSecretary of Labor shall have, with respect to such labor stan\xc2\xad\ndards, the authority and functions set forth in Reorganization\nPlan Numbered 14 of 1950 (15 F.R. 3176; 64 Stat. 1267) and\nsection 276c of title 40.\n42 U.S.C. \xc2\xa7 5310.\nWe adhere to the well-established principle that \xe2\x80\x9c[statutory construction\nmust begin with the language employed by Congress and the assumption that\nthe ordinary meaning of that language accurately expresses the legislative\npurpose.\xe2\x80\x9d Park \xe2\x80\x98n Fly, Inc. v. D ollar Park and Fly, Inc., 469 U.S. 189, 194\n(1985); see American Tobacco Co. v. Patterson, 456 U.S. 63,68 (1982); 2A N.\nSinger, Sutherland\xe2\x80\x99s Statutory Construction \xc2\xa7 46.04 (4th ed. 1984). The opera\xc2\xad\ntive language of \xc2\xa7 110 is \xe2\x80\x9cconstruction work financed in whole or in part with\nassistance received under this chapter.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 5310. The narrow question\nis whether the use of CDBG or UDAG funds to pay for the land, fixtures, or\nservices \xe2\x80\x94 but not for the construction work \xe2\x80\x94 associated with a particular\nproject means that the construction work is \xe2\x80\x9cfinanced in whole or in part with\xe2\x80\x9d\nsuch funds within the meaning of the Act. We think the language used in \xc2\xa7 110\nindicates that it is not.\nConstruction work that is part of a project receiving federal funds to pay for\nnon-construction activities of the project is, of course, benefited indirectly by\nsuch funds because the federal funds reduce the total amount of nonfederal\nfunds needed to finance the project. Nevertheless, the construction work itself\nis not financed with the federal funds that are used to pay for the project\xe2\x80\x99s other\nactivities. The ordinary meaning of the verb, \xe2\x80\x9cfinance,\xe2\x80\x9d is \xe2\x80\x9cto raise or provide\nfunds or capital for\xe2\x80\x9d or \xe2\x80\x9cto furnish with necessary funds.\xe2\x80\x9d W ebster\xe2\x80\x99s Ninth New\nC ollegiate D ictionary 463 (1986). Because the funds used to finance the\nconstruction work are nonfederal, the only way to conclude that the statute\napplies is, in effect, to substitute \xe2\x80\x9cconstruction project\xe2\x80\x9d for \xe2\x80\x9cconstruction\nwork.\xe2\x80\x9d Such a construction, however, conflicts with both the statutory lan\xc2\xad\nguage and its history.\n99\n\n\x0cThe language of \xc2\xa7 110, requiring the payment of Davis-Bacon wages when\n\xe2\x80\x9cconstruction work\xe2\x80\x9d is financed with federal funds,3 contrasts sharply with the\nbroader, project-oriented approach of several other federal statutes. For ex\xc2\xad\nample, the labor standards section of the Public Works and Economic Develop\xc2\xad\nment Act of 1965 provides that \xe2\x80\x9c[a]ll laborers and mechanics employed by\ncontractors or subcontractors on projects assisted by the Secretary under this\nchapter shall be paid [Davis-Bacon] wages.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 3222 (emphasis\nadded). Similarly, a 1974 amendment to the United States Housing Act of 1937\nstates that \xe2\x80\x9c[a]ll laborers and mechanics employed by contractors or subcon\xc2\xad\ntractors in housing or development a ctivities assisted under this section shall be\npaid [Davis-Bacon] wages.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 1440(g) (emphasis added).\nThe latter provision is particularly significant because it was enacted as part\nof the Housing and Community Development Act of 1974, see Pub. L. No. 93383, \xc2\xa7 802(g), 88 Stat. 633,724, the same Act that contains the provision under\nconsideration here. See id. \xc2\xa7 110, 88 Stat. at 649. Sections 110 and 802(g) of\nthe Act are identical in all material respects except that the former is triggered\nby federal funding of \xe2\x80\x9cconstruction work\xe2\x80\x9d and the latter by federal assistance to\n\xe2\x80\x9chousing or development activities.\xe2\x80\x9d By its terms, \xc2\xa7 802(g) requires more\nexpansive Davis-Bacon coverage than \xc2\xa7 110. Thus, the argument that \xc2\xa7 110\nrequires the payment of Davis-Bacon wages whenever any activity associated\nwith a particular project (such as the acquisition of land, fixtures, or architec\xc2\xad\ntural and engineering services) is financed with federal funds, even though the\nproject\xe2\x80\x99s construction work is not, negates the distinction between the effect of\nthe two provisions, in contravention of the clear and unambiguous language of\nthe Act.\nThe conclusion that \xc2\xa7 110 requires payment of Davis-Bacon wages only\nwhen construction work is financed with federal funds is also suggested by the\nhistory of the Act. The version of the Act considered initially by the Senate\nwould have required the payment of prevailing wages to \xe2\x80\x9c[a]ll laborers and\nmechanics employed by contractors and subcontractors in the performance of\nwork on any construction p ro je c t fin a n ced in whole or in part with funds\nreceived under this chapter.\xe2\x80\x9d S. 3066, 93d Cong., 2d Sess. 314 (1974) (empha\xc2\xad\n\nsis added). A \xe2\x80\x9cconstruction project\xe2\x80\x9d necessarily encompasses all activities\nneeded in order to undertake and complete the project, most notably, the\npurchase of land, equipment, and raw materials, as well as actual construction.\nThus, under the Senate bill, federal funding of any activity associated with a\nconstruction project would constitute partial federal financing of the project\nand trigger the requirement that prevailing wages be paid to all laborers and\nmechanics employed by contractors and subcontractors in the performance of\nwork on the project. The report accompanying the Senate bill acknowledges\nthe breadth of the Senate proposal, stating that the Senate bill would require the\npayment of prevailing wages \xe2\x80\x9cwith respect to all multifamily housing projects\n3 Accord 49 U .S.C. app. \xc2\xa7 1609(a) (requiring the paym ent o f D avis-Bacon wages to \xe2\x80\x9claborers and mechanics em ployed by contractors or subcontractors in the perform ance o f construction work financed with the\nassistance o f loans o r g rants under this chapter\xe2\x80\x9d) (em phasis added).\n\n100\n\n\x0c.. . , health facilities, and land development projects.\xe2\x80\x9d S. Rep. No. 693, 93d\nCong., 2d Sess. 36 (1974).\nThe House bill, by contrast, would have required payment of prevailing\nwages to laborers and mechanics employed by contractors and subcontractors\nonly \xe2\x80\x9cin the performance of construction work financed in whole or in p a rt\nwith assistance received under this chapter.\xe2\x80\x9d H.R. 15361, 93d Cong., 2d Sess.\n110 (1974) (emphasis added). As discussed, construction work is merely one\nelement of a construction project. The specific inquiry under the House provi\xc2\xad\nsion, then, is whether federal funds are used to finance construction work.\nWhether federal funds are used to finance any other activity associated with the\nconstruction project is immaterial. The House Report reiterates the specific\nfocus of the House provision, stating that the House bill would require the\npayment of prevailing wages to workers employed on \xe2\x80\x9cconstruction funded\nunder this title.\xe2\x80\x9d H.R. Rep. No. 1114, 93d Cong., 2d Sess. 55 (1974). Thus,\nwhereas the Senate bill would have required payment of prevailing wages\nwhenever federal funds were used to finance any part of a construction project\n(including construction work), the House bill would have required the payment\nof such wages only when the activity financed with federal funds was construc\xc2\xad\ntion work.\nWith minor changes not relevant here, the Conference Committee adopted\nthe labor standards provision of the House bill. As the Conference Report\nstates, \xe2\x80\x9c[t]he conference report contains the House provision with a technical\namendment.\xe2\x80\x9d H.R. Conf. Rep. No. 1279, 93d Cong., 2d Sess. 133 (1974). As\nfinally enacted, \xc2\xa7 110 applied only to \xe2\x80\x9cconstruction work financed in whole or\nin part with grants received under this title.\xe2\x80\x9d\nWe recognize that neither the Conference Report nor the floor debates\ncontain an explanation of the conference decision to adopt the \xe2\x80\x9cconstruction\nwork\xe2\x80\x9d language of the House bill instead of the \xe2\x80\x9cproject\xe2\x80\x9d approach of the\nSenate bill.4 This lack of legislative discussion hardly yields a conclusion that\n4 The Conference R eport explains:\nThe Senate bill applied the prevailing wage requirem ents o f the Davis-Bacon Act to residential\nconstruction involving 12 o r more units and to rehabilitation involving 8 or more units The\nH ouse am endm ent applied such requirem ents only to the construction o f 8 or more units without\nreference to rehabilitation. The conference report contains the House provision with a technical\nam endm ent m aking it clear that the requirem ent applies only to rehabilitation, since construction\no f residential structures is not a perm issible use o f com m unity developm ent funds.\nH.R. Conf. Rep. No. 1279, 93d Cong., 2d Sess. 133 (1974). Contrary to L abor\xe2\x80\x99s suggestion, this discussion\ndoes not necessarily reveal the exclusive reason for C ongress\xe2\x80\x99 adoption o f the H ouse provision. The selection\no f the H ouse provision was consistent with Congress* desire to carry forward the D avis-Bacon coverage o f\nthe H ousing Act o f 1949. Under the 1949 Act, Davis- Bacon wage requirem ents applied only to the\n\xe2\x80\x9cundertakings and activities o f a local public agency in an urban renewal area.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 1460 (1976).\nThus, all privately undertaken construction and activity, even though part o f a project receiving federal\nassistance, w as exem pt from D avis-Bacon requirem ents. Section 105 o f the 1974 Act, delineating the\nactivities eligible fo r CDBG funding, specifically includes \xe2\x80\x9cpaym ent o f the cost o f com pleting a project\nfunded under title I o f the Housing Act o f 1949 " 42 U.S.C. \xc2\xa7 5305(a)(10). By choosing the labor standards\nprovision o f the H ouse bill. C ongress ensured that the use o f CDBG funds to com plete outstanding projects\nw ould not result in expanding D avis-Bacon coverage to the privately funded construction w ork associated\nw ith such projects because such work is not financed in whole o r in part with federal funds. The Senate bill,\nC ontinued\n\n101\n\n\x0cCongress intended Davis-Bacon coverage to be less restrictive than the choice\nof the House provision would suggest. Such an anomalous conclusion would\nignore the best evidence of congressional intent \xe2\x80\x94 the language adopted. That\nlanguage is clear, and evinces an unambiguous intent to require less DavisBacon coverage than the Senate bill.5\nBecause there have been numerous, inconsistent interpretations of \xc2\xa7 110 to\nvarious activities in the past, we pause to consider several applications of \xc2\xa7 110\nin light of our interpretation of the Act. For example, HUD has previously\nagreed with Labor that the use of CDBG or UDAG funds to purchase equip\xc2\xad\nment may require the payment of prevailing wages with respect to the installa\xc2\xad\ntion of the equipment when such installation involves \xe2\x80\x9cmore than an incidental\namount\xe2\x80\x9d of construction work. See Letter to John S. Selig, Esq., Mitchell,\nWilliams, Selig, Jackson & Turner, from Justin L. Logsdon, Assistant to the\nSecretary for Labor Relations, Department of Housing and Urban Develop\xc2\xad\nment (Dec. 1, 1986) (advising that Davis-Bacon requirements do not apply to\nthe installation of federally funded equipment where the cost of installation is\nonly 1.5 percent of the cost of the equipment). Assuming that installation of\nequipment constitutes or requires \xe2\x80\x9cconstruction work,\xe2\x80\x9d6 we believe that \xc2\xa7 110\ndoes not require the payment of prevailing wages with respect to installation\nwhere federal funds are provided exclusively for the purchase of equipment\nand not for its installation. Thus, to the extent that Labor and HUD have\nadopted a contrary interpretation of \xc2\xa7 110, they have misconstrued the Act.\n4 (. . . continued)\nby contrast, w ould have required the paym ent o f prevailing wages for construction work exem pt under the\n1949 Act. T h is is so because construction work is part o f a construction project, and the Senate bill would\nhave required the paym ent o f Davis-Bacon wages w henever \xe2\x80\x9cany construction project is financed in w hole or\nin part w ith [federal] fu n d s.\xe2\x80\x9d\nM oreover, w e w ish to stress that C ongress need not ex p ress an intent that clear language means what it\nsays. Indeed, legislative history tending to contradict the p lain meaning o f a statute is often discounted. Here,\nw here we have no expression in the legislative history o f a congressional intent contradicting the plain\nlanguage o f \xc2\xa7 110, the statutory language necessarily controls.\n5 T his conclusion is consistent with th e subsequent am endm ents to the Act authorizing the Urban D evelop\xc2\xad\nm ent A ction G rant program See 42 U .S.C . \xc2\xa7 5318 The UD A G program authorizes grants to cities and urban\nareas experiencing severe economic distress to help stim ulate econom ic developm ent activity. Id. \xc2\xa7 5318(a).\nU nder the program , the Secretary (1) m u st determ ine that there is a strong probability that without the grant,\nthe nonfederal investm ent in the project w ould not be m ade, id. \xc2\xa7 5318(j), and (2) \xe2\x80\x9cassure that the am ount of\nthe grant is the least necessary to m ake the project feasib le.\xe2\x80\x9d Id. \xc2\xa7 5318(k). Thus, the UDAG program is\ndesigned to encourage and leverage nonfederal investm ent in depressed urban areas. In fact, the average\nU D A G project has involved six nonfederal dollars for ev ery dollar o f UDAG funds. Significantly, Congress\ndid not change the \xe2\x80\x9cconstruction work\xe2\x80\x9d focus o f Section 110 in adding the UDAG program to the Act. This\nm eans that if UD A G funds are used exclusively to finance the non-construction work activities of a particular\nproject (as they often are), Davis-Bacon w ages need not be paid. A conclusion that Section 110 required the\npaym ent o f prevailing w ages under these circum stances w ould substantially impair the intended effect o f the\nprogram . B ecause the program is designed to minim ize the amount o f federal funds necessary to cause a\np ro ject to go forw ard, a requirement th a t Davis-Bacon w ages be paid w ith respect to the entire project could\nsignificantly increase (conceivably in excess o f the total federal investm ent) the am ount o f nonfederal funds\nneeded for the project. G iven the language o f Section 110 and the general, although adm ittedly not wholly\nconsistent, p ractice o f H U D to require th e paym ent o f D avis-Bacon w ages only when federal funds are used\nto finance construction w ork, it is reasonable to conclude that C ongress added the UDAG program with this\nunderstanding in mind. A construction o f Section 110 expanding its traditional scope, therefore, could\nsignificantly underm ine the program in term s o f its cost and effect.\n6 If in a given case installation does not entail construction work, then \xc2\xa7 110 is inapplicable in any event.\n\n102\n\n\x0cSimilarly, we agree with Labor\xe2\x80\x99s position that \xe2\x80\x9cUDAG or CDBG financing\nof certain \xe2\x80\x98soft costs\xe2\x80\x99 would not, in and of itself, trigger Davis-Bacon coverage\nfor building construction when there was no direct UDAG or CDBG financing\nof the actual construction.\xe2\x80\x9d Labor Opinion at 2. Labor gave as examples of\nsuch \xe2\x80\x9csoft costs\xe2\x80\x9d legal services and tenant allowances for purchasing furniture\nor obtaining business licenses. See id. In short, we do not believe that \xc2\xa7 110\nrequires payment of Davis-Bacon wages when federal funds are used to pay for\nany activity other than construction work. So long as no part of the cost of\nconstruction work is paid for with UDAG or CDBG funds, \xc2\xa7 110 does not apply.\nConclusion\nGiven the language of \xc2\xa7 110 and Congress\xe2\x80\x99 contemporaneous rejection of\nalternative language that expressly would have required the payment of DavisBacon wages for all work associated with any \xe2\x80\x9cconstruction project,\xe2\x80\x9d not just\n\xe2\x80\x9cconstruction work,\xe2\x80\x9d we conclude that the Act requires the payment of prevail\xc2\xad\ning wages only when federal funds are used to pay for construction work. The\nmere use of federal funds to acquire the land upon which that work is to take\nplace does not constitute federal financing of the construction work.\nSimilarly, the use of federal funds either to purchase materials, equipment,\nmachinery, or other fixtures installed during the construction work or to pay for\nthe architectural and engineering services rendered prior to that work, does not\ntrigger Davis-Bacon coverage when no federal funds are used to pay for the\nconstruction work itself.\nC harles\n\nJ.\n\nC ooper\n\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n103\n\n\x0c'


b'Constitutionality of the Social Security Act\nAmendments of 1983\nAn amendment to the Social Security Act repealing the exemption for nonprofit organizations,\nincluding religious organizations, thereby requiring such organizations to pay and withhold\ntax with respect to the Social Security Fund, does not violate the First Am endment\xe2\x80\x99s Free\nExercise or Establishm ent Clauses.\nAssuming the tax payment and withholding requirement conflicts with the free exercise of\nreligion in some cases, the government nevertheless has an overriding interest in securing the\nfinancial solvency of the fund and making sure that its coverage is comprehensive.\nThe repeal of the exemption does not violate the Establishment Clause because it has a clear\nsecular purpose, does not inhibit or advance religion because it is neutral in its general\napplication, and does not excessively entangle the government with religion. Social Security\ntaxes are like other business and income taxes to which religious organizations are already\nsubject.\n\nFebruary 14, 1984\nM\n\nem orandum\n\nO p in io n\nO f f ic e\n\nfor t h e\nof\n\nA s s is t a n t A t t o r n e y G e n e r a l ,\n\nL e g is l a t iv e A f f a ir s\n\nThis responds to the request for our opinion whether \xc2\xa7 102 of the Social\nSecurity Amendments of 1983 (Act), Pub. L. No. 98- 21, 97 Stat. 65 (1983),\nviolates the First Amendment. We do not believe that \xc2\xa7 102 violates either the\nFree Exercise Clause or the Establishment Clause of the First Amendment.\nI. Background\nThe Act was passed in 1983 primarily in an effort to address certain financial\nproblems facing the social security system. Section 102 of the Act, 97 Stat. 70,\nrepealed the existing exemption applicable to employees of non-profit organi\xc2\xad\nzations, 42 U.S.C. \xc2\xa7 410(a)(8)(B) and 26 U.S.C. \xc2\xa7 3121(b)(8)(B), including\n\xe2\x80\x9creligious\xe2\x80\x9d organizations such as churches.1 As a result, payment of social\n1 Prior to the repeal, 42 U.S.C. \xc2\xa7 410(a)(8)(B ) and 26 U .S.C. \xc2\xa7 3121(b)(8)(B ) exem pted service fo r taxexem pt organizations described in 26 U.S.C. \xc2\xa7 501(c)(3) from the definition o f em ploym ent. However, the\nlaw perm itted such non- profit organizations to w aive their im m unity voluntarily so that they could p artici\xc2\xad\npate in the system if they wished. An estim ated 80 percent o f the non-profit organizations to w hich the\nexem ption applied had determ ined to participate in the system at the time the A ct was being considered. H.R.\nRep. No. 25, Part 1,9 8 th Cong., 1st Sess. 15 (1983). Once an organization join ed the system , it had to rem ain\nContinued\n\n23\n\n\x0csecurity taxes by these institutions for most of their employees is now manda\xc2\xad\ntory rather than voluntary. Congress made this change because it was \xe2\x80\x9cdeeply\nconcerned\xe2\x80\x9d that more and more non-profit organizations were terminating their\nvoluntary inclusion in the system, thereby threatening the retirement benefits\nof their employees. H.R. Rep. No. 25, Part I, 98th Cong., 1st Sess. 16-17\n(1983). A larger concern, applicable generally to the coverage and financing\nprovisions of the Act, was the restoration of the financial soundness of the Old\nAge and Survivor Insurance Program. Id. at 3,13. The mandatory inclusion of\nthe non-profit organizations, for example, is expected to raise $2.3 billion\ndollars over the next two years, about half of which will come from religious\norganizations. Written Statement of John E. Chapoton, Assistant Secretary for\nTax Policy, Department of the Treasury, Before the Senate Finance Committee\n(Dec. 14, 1983).\nThere was very little debate over \xc2\xa7 102, beyond its inclusion in summaries of\nthe Act\xe2\x80\x99s provisions. See, e.g., 129 Cong. Rec. 4496 (1983) (statement of Rep.\nRostenkowski); id. at 5470 (statement of Sen. Dole).2 The House Report,\nhowever, did note that Congress had made coverage voluntary when it ex\xc2\xad\ntended the system to non-profit organizations in 1950 because of concerns by\nreligious groups over \xe2\x80\x9cFederal influence over religious activities\xe2\x80\x9d and \xe2\x80\x9csepara\xc2\xad\ntion of church and State.\xe2\x80\x9d H.R. Rep. No. 25, Part I, supra, at 16. These concerns\nhad been addressed by at least one of the commissions examining reform of the\nsystem. R eport o f the Universal Social Security Coverage Study Group on the\nD esirability an d Feasibility o f Social Security Coverage fo r Employees of\nFederal, State, and Local Governments a n d Private, Nonprofit Organizations\n\n258-59 (1980).3 Because the House Report noted that these concerns had been\nraised when optional coverage was extended to these groups in 1950 and then\nwent on to explain the policy reasons for including the non-profit organization\nemployees in the Act, we must assume that Congress was aware of the First\nAmendment considerations and issues which would be raised, but determined\nthat the proposal was not unconstitutional.\n\n1 (. . . continued)\nin it fo r a m inim um o f ten years before it could term inate coverage fo r its employees. Id. The Act did not\nrepeal the exem ption available for m inisters o r m embers o f religious orders. 42 U.S.C. \xc2\xa7 410(a)(8); 26 U.S.C.\n\xc2\xa7 3121(b)(8). T hese classes o f persons m ay file for an exem ption from coverage for their self employment\nearn in g s, a choice they m ust generally m ake w ithin two years o f ordination. Only individuals w ho are neither\nm inisters n o r m em bers o f religious orders are covered by the change in the Act.\n2 T h e re w as a short debate on what th e effective date o f \xc2\xa7 102 should be. See 129 Cong. Rec. 6914-16\n(1983).\n3 T h is R eport, in turn, relied in part on an opinion from Professor N orm an Dorsen o f New York University\nLaw School. Id. at 2 6 1 -6 5 . Both the R eport and Professor D orsen concluded that an Establishm ent Clause\nattack w ould probably fail. However, P rofessor Dorsen d id not believe that protecting the financial security\no f the system w as a sufficiently compelling state interest to overcom e the Free Exercise interests o f those who\nhad co n scien tio u s religious objections to paying into the system , id. a t 265, and therefore felt that an\nexem ption fo r those holding contrary relig io u s beliefs had to be included to prevent a violation of the Free\nE xercise C lause. H ow ever, the Suprem e C ourt has subsequently m ade it clear that Professor D orsen\xe2\x80\x99s\nevaluation o f the w eight that would be accorded the g o v ern m en t\'s interest in a strong social security system\nw as incorrect. See United States v. Lee, 4 5 5 U.S. 252 (1982) (discussed below).\n\n24\n\n\x0cWhenever called upon to judge the constitutionality of an Act\nof Congress \xe2\x80\x94 \xe2\x80\x9cthe gravest and most delicate duty that this\nCourt is called upon to perform,\xe2\x80\x9d B lodgett v. Holden, 275 U.S.\n142,148 (1927) (Holmes, J.) \xe2\x80\x94 the Court accords \xe2\x80\x9cgreat weight\nto the decisions of Congress.\xe2\x80\x9d Columbia Broadcasting System,\nInc. v. D em ocratic National Committee, 412 U.S. 94,102 (1973).\nThe Congress is a coequal branch of government whose Mem\xc2\xad\nbers take the same oath we do to uphold the Constitution of the\nUnited States. As Justice Frankfurter noted in Joint Anti-Fascist\nRefugee Committee v. McGrath, 341 U.S. 123,164 (1951) (con\xc2\xad\ncurring opinion), we must have \xe2\x80\x9cdue regard to the fact that this\nCourt is not exercising a primary judgment but is sitting in\njudgment upon those who also have taken the oath to observe\nthe Constitution and who have the responsibility for carrying on\ngovernment.\xe2\x80\x9d The customary deference accorded the judgments\nof Congress is certainly appropriate when, as here, Congress\nspecifically considered the question of the Act\xe2\x80\x99s constitutionality.\nRostker v. Goldberg, 453 U.S. 57, 64 (1981).\n\nThe constitutionality of \xc2\xa7 102 has been raised in the discussion of S. 2099, a\nbill to postpone the effective date of \xc2\xa7 102 for two years, that was introduced by\nSenator Jepsen and is now under consideration by the Senate Finance Commit\xc2\xad\ntee. We discuss below the two possible First Amendment grounds of attack on\n\xc2\xa7 102. We agree with Congress\xe2\x80\x99 sub silentio conclusion that \xc2\xa7 102 is constitutional.\nII. Free Exercise Clause\nThe Constitution provides that \xe2\x80\x9cCongress shall make no law . . . prohibiting\nthe free exercise\xe2\x80\x9d of religion. U.S. Const, amend. I, \xc2\xa7 1. Section 102 has been\nattacked, see 129 Cong. Rec. 32611-12 (1983), on the grounds that mandating\ncontributions by individuals and organizations whose sincere religious beliefs\nprohibit participation in the social security system violates the free exercise of\ntheir religious beliefs. The Supreme Court has recently articulated the analyti\xc2\xad\ncal framework for this question in United States v. Lee, 455 U.S. 252 (1982).\nThe Lee opinion makes clear that the government\xe2\x80\x99s interest in assuring manda\xc2\xad\ntory and continuous participation in and contribution to the social security\nsystem is extraordinarily high. In Lee, an Amish farmer refused to withhold\nsocial security taxes from his Amish employees or to pay the employer\xe2\x80\x99s share\nof such taxes because he believed that payment of the taxes and receipt of the\nbenefits would violate the Amish faith.4 Id. at 254\xe2\x80\x9455. He claimed, and the\nCourt accepted his argument, that imposition of social security taxes violated\nhis First Amendment free exercise rights and those of his Amish employees. Id.\nat 255, 257.\n4 \xe2\x80\x98T h e Amish believe that there is a religiously based obligation to provide for their fellow mem bers the\nkind o f assistance contem plated by the social security system .... We therefore accept appellee\'s contention\nthat both paym ent and receipt o f social security benefits is forbidden by the Amish faith." Id. at 257.\n\n25\n\n\x0cThe conclusion that there is a conflict between the Amish faith\nand the obligations imposed by the social security system is only\nthe beginning, however, and not the end of the inquiry. Not all\nburdens on religion are unconstitutional. See, e.g., Prince v.\nM assachusetts, 321 U.S. 158 (1944); Reynolds v. United States,\n98 U.S. 145 (1879). The state may justify a limitation on reli\xc2\xad\ngious liberty by showing that it is essential to accomplish an\noverriding governmental interest.\nId. at 257-58. The Court then identified the government\xe2\x80\x99s compelling interest\n\nassuring \xe2\x80\x9cmandatory and continuous participation in and contribution to the\nsocial security system:\xe2\x80\x9d\nThe social security system in the United States serves the\npublic interest by providing a comprehensive insurance system\nwith a variety of benefits available to all participants, with costs\nshared by employers and employees. . . . The design of the\nsystem requires support by mandatory contributions from cov\xc2\xad\nered employers and employees. This mandatory participation is\nindispensable to the fiscal vitality of the social security system.\n. . . Moreover, a comprehensive national social security system\nproviding for voluntary participation would be almost a contra\xc2\xad\ndiction in terms and difficult, if not impossible, to administer.\nId. at 258-59 (footnotes omitted). A remaining inquiry in the Lee case was\n\nwhether accommodating the Amish belief would unduly interfere with fulfill\xc2\xad\nment of the governmental interest. The Court focused on the fact that the social\nsecurity contributions are a tax and that in the area of taxation, religious practices\nmust yield to the government\xe2\x80\x99s interest in maintaining an organized society.\nThe tax system could not function if denominations were\nallowed to challenge the tax system because tax payments were\nspent in a manner that violates their religious belief. See , e.g.,\nLull v. Commissioner, 602 F.2d 1166 (CA4 1979), cert, denied,\n444 U.S. 1014 (1980); Autenrieth v. Cullen, 418 F.2d 586 (CA9\n1969), cert, denied, 397 U.S. 1036 (1970). Because the broad\npublic interest in maintaining a sound tax system is of such a\nhigh order, religious belief in conflict with the payment of taxes\naffords no basis for resisting the tax.\nId. at 260.5 The Lee decision was decided by the Supreme Court in a unanimous\njudgment.6 The Court held that compelling an individual to participate in the\n5 T hus, cases involving application o f taxes are distinguishable from those involving less com pelling\ngovernm ent interests such as education, see Wisconsin v. Yoder, 406 U.S. 205 (1972), or labor m anagement\nrelatio n s. Catholic Bishop v. NLRB, 5 5 9 F.2d 1112 (7th Cir. 1977), a ffd on statutory grounds, 440 U .S. 506\n(1979). See Parker v. Commissioner, 365 F.2d 792, 795 (8th Cir. 1966), cert, denied, 385 U.S. 1026 (1967).\nSee also Jaggard v. Commissioner, 582 F.2d 1189 (8th Cir. 1978), cert, denied, 440 U.S. 913 (1979); Graves\nC ontinued\n\n26\n\n\x0csocial security system is not an impermissible interference with that individual\xe2\x80\x99s\nconstitutional right to the free exercise of his religion.7\nTurning to \xc2\xa7 102, we assume, as the Court did in Lee, that there are religious\norganizations whose tenets would be offended by payments on behalf of\nemployees into the social security system. Because this is \xe2\x80\x9conly the beginning,\nhowever, and not the end of the inquiry,\xe2\x80\x9d id. at 257, the next issue is whether\nthere is a compelling governmental interest that will overcome the imposition\non the religious liberty of those individuals who would have conscientious\nobjections to mandatory coverage by the system. We have little difficulty in\nconcluding that the courts will find that the same interest at stake in Lee was\nimplicated in passage of \xc2\xa7 102. Congress, in discussing \xc2\xa7 102, emphasized\nboth its concern that employees of non-profit organizations not \xe2\x80\x9cforfeit the\nadvantages of a nearly universal social insurance system,\xe2\x80\x9d H.R. Rep. No. 25,\nsupra, at 16, and the need to protect the solvency of the system by spreading the\ncoverage as broadly as possible to gain extra revenue. S. Rep. No. 23, 98th\nCong., 1st Sess. 12 (chart detailing revenue gain).8 If the stability of the social\nsecurity system and the administrative advantages of universal coverage were\nsufficient in 1982 to overcome free exercise rights as the Court determined in\nthe Lee case, we believe that those interests have, if anything, become stronger\ngiven the broadly based and bipartisan consensus in 1983 that without the Act\nthe financial soundness of the entire system was in jeopardy.\nFinally, we believe that a court would conclude, as in Lee, that accommoda\xc2\xad\ntion of those individuals and organizations with religious objections, while\nmandating coverage of others, including religious organizations, with no reli\xc2\xad\ngious objection to the social security system, would unduly interfere with\nfulfillment of the governmental interest. The Supreme Court recognized that\nCongress grants exemptions to various taxing schemes, including the social\nsecurity system. In fact, in Lee the Court noted that Congress had provided an\nexemption from the system for self employed Amish because of their religious\nobjections. 26 U.S.C. \xc2\xa7 1402(g). The Court stated that this was a reasonable\naccommodation,9 but did not draw from this conclusion any rule that Congress\n5 ( . . . continued)\nv. Commissioner, 579 F.2d 392 (6th Cir. 1978), cert, denied, 440 U.S. 946 (1979); Winters v. Commissioner,\n468 F.2d 778, 781 (2d C ir. 1972), Basic Unit Ministry v. United States, 511 F. Supp. 166, 169(D .D .C . 1981),\na ffd , 670 F.2d 1210 (D.C. C ir. 1982); Varga v. United States, 467 F. Supp. 1113, 1118 (D. Md. 1979), a ff d\nmem., 618 F.2d 106 (4th Cir. 1980). Cf. Ward v. Commissioner, 608 F.2d 599 (5th Cir. 1979), cert, denied,\n446 U.S. 918 (1980).\n6 Justice Stevens wrote a separate opinion concurring in the judgm ent. Id. at 261.\n7 See also Olsen v. Commissioner, 709 F.2d 278 (4th Cir. 1983) (se lf em ploym ent lax); Victory Baptist\nTemple, Inc. v. Industrial Comm\'n, 422 N.E.2d 819, 2 O hio App. 3d 418 (Ct. App.) (w orkm en\xe2\x80\x99s com pensa\xc2\xad\ntion), cert, denied, 459 U.S. 1086 (1982).\n8 M oreover, \xc2\xa7 102 is located in Title I o f the Act which is entitled "Provisions A ffecting the Financing of\nthe Social Security System.\xe2\x80\x9d 97 Stat. 65. C ongress\xe2\x80\x99 o v em d in g interest in expanding coverage, such as by\nincluding em ployees o f nonprofit groups and new federal em ployees and by preventing term inations by State\nand local governm ents, to new sources o f revenue in o rder to shore up the system is evident in all three\nreports. H.R. Rep. No. 47, 98th Cong., 1st Sess. 118-19 (1983); S. Rep. No. 23, 98th Cong., 1st Sess. 1, 12\n(1983); H.R. Rep. No. 25, Part I, 98th Cong., 1st Sess. 3, 13 (1983).\n9 \xe2\x80\x9cC onfining the \xc2\xa7 1402(g) exem ption to the self em ployed provided for a narrow category which was\nreadily identifiable.\xe2\x80\x9d United States v. Lee, 455 U.S. at 261.\n\n27\n\n\x0cwas compelled to extend the exemption to all other Amish. Rather, the Court\nconcluded the opinion by saying:\nCongress and the courts have been sensitive to the needs flow\xc2\xad\ning from the Free Exercise Clause, but every person cannot be\nshielded from all the burdens incident to exercising every aspect\nof the right to practice religious beliefs. Granting an exemption\nfrom social security taxes to an employer operates to impose the\nemployer\xe2\x80\x99s religious faith on the employees . . . . The tax\nimposed on employers to support the social security system\nmust be uniformly applicable to all, except as Congress provides\nexplicitly otherwise.\n455 U.S. at 261. Because of the government\xe2\x80\x99s overwhelming interest in a social\nsecurity system which is as uniform as possible, the Free Exercise Clause does\nnot prohibit the non-discriminatory application of a standard tax to a religious\norganization or its employees. We therefore believe that the elimination by\n\xc2\xa7 102 of the exemption for non-profit organizations, including religious ones,\nis permissible even if it does offend the religious convictions of some who will\nbe required to participate.\nIII. Establishment Clause\nThe Constitution also provides that \xe2\x80\x9cCongress shall make no law respecting\nan establishment of religion.\xe2\x80\x9d U.S. Const, amend. I, \xc2\xa7 1. Section 102 has been\nattacked on the grounds that compelling the participation of churches will\ninevitably entangle the government in the affairs of the churches, thereby\nviolating the Establishment Clause.\nWhether a statute violates the Establishment Clause is frequently analyzed\nunder the three-part test articulated in Lemon v. Kurtzman, 403 U.S. 602, 612\xe2\x80\x94\n13 (1971). First, the challenged statute must have a secular purpose. Section\n102 has at least two bona f id e secular purposes: providing income security for\nworkers and their families by insuring that they are protected by the social\nsecurity system and providing money to the underfunded system\xe2\x80\x99s trust funds.\nSecond, the primary effect o f the challenged statute must be one that neither\nadvances nor inhibits a particular religion. The Social Security tax\xe2\x80\x99s primary\npurpose raising revenue does not inhibit religion. Cf. United States v. Lee, 455\nU.S. 252, 263 (1982) (Stevens, J., concurring) (concluding that \xe2\x80\x9cthere is\nvirtually no room for a \xe2\x80\x98constitutionally required exemption\xe2\x80\x99 on religious\ngrounds from a valid tax law that is entirely neutral in its general application\xe2\x80\x9d).\nThird, the statute must not foster excessive government entanglement with\nreligion. Excessive entanglement involves some of the principal evils at which\nthe Establishment Clause was aimed: government sponsorship, financial sup\xc2\xad\nport or active involvement by the sovereign in a religion. Lemon v. Kurtzman,\n403 U.S. at 612. For example, in Lemon the Supreme Court struck down a\nstatute providing reimbursement to parochial schools for the salaries of teach\xc2\xad\n28\n\n\x0cers who taught non religious subjects. The Court held that the very effort by the\nstate to ensure that the money was properly spent would require a degree of\noversight and surveillance that would entangle the government. Id. at 619-20.\nThe churches would no longer be the exclusive judges of the teachers\xe2\x80\x99 conduct.\nThus, courts must examine whether enforcement of the law will impinge on the\nchurch\xe2\x80\x99s substantive decisionmaking power or intrude on questions of church\ndoctrine.\nWe do not believe that the mere transmission to the government of money\nfor social security taxes will involve excessive entanglement of the churches\nand the federal government.10Churches must presently pay some federal taxes,\nsuch as excise taxes on telephones and income taxes on unrelated business\nincome. Moreover, they already are obligated to withhold income taxes from\ntheir employees. See Eighth Street Baptist Church, Inc. v. United States, 295 F.\nSupp. 1400 (D. Kan. 1969), a ffd , 431 F.2d 1193 (10th Cir. 1970) (per curiam).\nWe are not aware of any case successfully challenging this essentially adminis\xc2\xad\ntrative duty as excessively entangling for the churches. The Act will not force\nthe churches to share their decisionmaking power: they are free to allocate their\nresources as they see fit after they pay their taxes. Because it is permissible for\nCongress to impose non-discriminatory and uniform taxes on churches on the\nsame basis as other entities and since churches already are required to withhold\nincome taxes for their lay employees, we do not believe that requiring churches\nto pay the employer\xe2\x80\x99s portion of applicable social security taxes or to withhold\nthe employee\xe2\x80\x99s portion violates the Establishment Clause.11\nConclusion\nSection 102 of the Act violates neither the Free Exercise Clause nor the\nEstablishment Clause of the First Amendment. We will be glad to discuss this\nmatter with you if you have any further questions.\nT h eo d o r e B. O lso n\n\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n10 Walz v. Tax Comm \'n, 397 U.S. 664 (1970), is not to the contrary. In Walz, the Court upheld a state\xe2\x80\x99s tax\nexem ption for church property against an Establishm ent C lause challenge. The Court pointed out that\nrem oving the tax exem ption m ight lead to more church entanglem ent with the governm ent since liens,\nforeclosures and law suits w ould arise if the property were taxed. 397 U.S. at 674. A lthough som e com m enta\xc2\xad\ntors have argued that this m eans that exem ptions are constitutionally required, see Note, Tax Exemptions,\nSubsidies and Religious Freedom After Walz v. Tax Commission, 45 N.Y.U. L. Rev. 876 (1970), the Supreme\nC ourt\xe2\x80\x99s summary distinguishing o f the exem ption for self-em ployed Amish in United States v. Lee , 455 U.S.\n252, 261 (1982), lends little credence to this argum ent. Rather, Walz should be read for the proposition that\ntax exem ptions them selves are not unconstitutional.\n11 It is also instructive that over the years a large num ber o f churches have opted into the system voluntarily,\nsee supra note 1, w ithout any evidence o f im perm issible entanglem ent.\n\n29\n\n\x0c'


b'Protective Assertion of Executive Privilege Regarding White\nHouse Counsel\xe2\x80\x99s Office Documents\nExecutive privilege may properly be asserted with respect to the entire set of W hite House Counsel\xe2\x80\x99s\nOffice documents currently being withheld from the Committee on Government Reform and Over\xc2\xad\nsight o f the House o f Representatives, pending a final Presidential decision on the matter. This\nwould be a protective assertion of executive privilege designed to ensure the President\xe2\x80\x99s ability\nto make a final decision, after consultation with the Attorney General, as to which specific docu\xc2\xad\nments are deserving o f a conclusive claim o f executive privilege.\n\nMay 8, 1996\n\nTHE PRESIDENT\nTHE W HITE HOUSE\nMy Dear M r. President: You have requested my legal advice as to whether\nexecutive privilege may properly be asserted in response to a subpoena issued\nto the Counsel to the President by the Committee on Government Reform and\nOversight of the House of Representatives.\nThe subpoena covers a large volume of confidential White House Counsel\xe2\x80\x99s\nOffice documents. The Counsel to the President notified the Chairman of the Com\xc2\xad\nmittee today that he was invoking the procedures of the standing directive gov\xc2\xad\nerning consideration of whether to assert executive privilege, President Reagan\xe2\x80\x99s\nmemorandum of November 4, 1982, and that he specifically requested, pursuant\nto paragraph 5 of that directive, that the Committee hold its subpoena in abeyance\npending a final Presidential decision on the matter. Memorandum for the Heads\nof Executive Departments and Agencies, Re: Procedures Governing Responses\nto Congressional Requests fo r Information at 2 (Nov. 4, 1982). This request was\nnecessitated by the deadline imposed by the Chairman, the volume of documents\nthat must be specifically and individually reviewed for possible assertion of privi\xc2\xad\nlege and the need under the directive to consult with the Attorney General, on\nthe basis of that review, before presenting the matter to the President for a final\ndetermination. The Chairman rejected the request and indicated that he intends\nto proceed with a Committee vote on the contempt citation tomorrow.\nBased on these circumstances, it is my legal judgment that executive privilege\nmay properly be asserted with respect to the entire set of White House Counsel\xe2\x80\x99s\nOffice documents currently being withheld from the Committee, pending a final\nPresidential decision on the matter. This would be a protective assertion of execu\xc2\xad\ntive privilege designed to ensure your ability to make a final decision, after con\xc2\xad\nsultation with the Attorney General, as to which specific documents are deserving\nof a conclusive claim of executive privilege.\nSincerely,\nJANET RENO\nAttorney General\n\n1\n\n\x0c'


b'Authority to Pay State and Local Taxes on Property\nAfter Entry of an Order of Forfeiture\n\nT h e A tto rn e y G en eral h a s d isc re tio n a ry a u th o rity to m a k e p a y m e n ts o f sla te an d lo c a l tax claim s\na g ain st c iv illy fo rfeited p ro p erty a fte r a fo rfe itu re o rd e r h as b e en issu e d , b a se d o n h e r e q u ita b le\nd is c re tio n to a d m in ister civ illy fo rfe ite d p ro p e rty , u n d e r 21 U S C\n\n\xc2\xa7 8 8 l(b ) -(e ) a n d 28 U .S .C .\n\n\xc2\xa7 5 2 4 (c )(1 )\n\nT h e A tto rn e y G e n eral has d is cretio n to p ay state an d lo cal tax c la im s a g ain st c rim in a lly fo rfe ite d p ro p \xc2\xad\nerty , u n d e r th e a u th o rity in those sta tu te s to \xe2\x80\x9c ta k e an y o th e r a ctio n to p ro te c t the rig h ts o f in n o c e n t\np e rso n s w h ic h is in th e in te re sts o f ju s tic e .\xe2\x80\x9d\n\nD e c e m b e r 9, 1993\n\nM e m o r a n d u m O p in io n f o r t h e D ir e c t o r a n d C h ie f C o u n s e l\nE x e c u t i v e O f f ic e f o r A s s e t F o r f e i t u r e ,\nand the\n\nD e p u t y D ir e c t o r\n\nA s s e t F o r f e i t u r e O f f i c e , C r i m i n a l D iv is i o n\n\nY o u have requested advice on two matters: a proposed Directive from the Ex\xc2\xad\necutive Office for Asset Forfeiture (\xe2\x80\x9cDirective\xe2\x80\x9d) that would authorize payment of\nstate and local taxes on some civilly forfeited property for which the court had no\xc2\xad\ntice of a state or local tax claim before the court entered an order of forfeiture, and\na draft Memorandum from the Asset Forfeiture Office, Criminal Division, to the\nAttorney General (\xe2\x80\x9cAG Memo\xe2\x80\x9d) concluding that the Attorney General may pay\nstate and local taxes on criminally forfeited property (and proposing an Attorney\nGeneral Order to delegate such authority to the Director of the Asset Forfeiture\nOffice). The proposed Directive and the draft AG Memo both raise the question of\nthe Attorney General\xe2\x80\x99s discretionary authority to pay taxes, for the period from the\noffense giving rise to forfeiture to the entry of an order of forfeiture, on property\nfor which a court has already entered an order of forfeiture.\nThe focus of our previous opinion, to which the Directive and the AG Memo\nboth refer, was the liability of the United States for payment of such taxes on prop\xc2\xad\nerty for which a court had not yet entered a forfeiture order. See Liability o f the\nUnited States fo r State and Local Taxes on Seized and Forfeited Property, 17 Op.\nO.L.C. 104 (1993) (\xe2\x80\x9cCopeland Memorandum\xe2\x80\x9d). Accordingly, that opinion, which\nreconsidered an earlier Office of Legal Counsel (\xe2\x80\x9cOLC\xe2\x80\x9d) opinion in light of United\nStates v. 92 Buena Vista Ave., 507 U.S. 111 (1993) (\xe2\x80\x9cBuena Vista\xe2\x80\x9d), did not spe\xc2\xad\ncifically address the circumstances at issue in the Directive and the AG Memo. We\nnow conclude that payment of taxes on civilly forfeited property on the terms set\nforth in the proposed Directive would not be inconsistent with the civil forfeiture\n\n159\n\n\x0cO pinions o f the O ffice o f Legal C ounsel\n\nstatute and would not exceed the Attorney General\xe2\x80\x99s equitable discretion under the\ncivil forfeiture laws. We also conclude that payment of taxes on criminally for\xc2\xad\nfeited property in the circumstances apparently envisioned by the draft AG Memo\nwould not be unlawful under the criminal forfeiture laws or beyond the Attorney\nGeneral\xe2\x80\x99s equitable, discretionary authority under such laws. In addition, we de\xc2\xad\nscribe revisions to the draft AG Memo necessary to ensure accuracy in its descrip\xc2\xad\ntion of OLC advice.\nI.\nThe proposed Executive Office for Asset Forfeiture Directive provides, in rele\xc2\xad\nvant part:\nThis directive . . . permits the payment of taxes upon civilly for\xc2\xad\nfeited properties: (1) which have not yet been sold, or (2) which are\nthe subject of pending litigation regarding payment of taxes, pro\xc2\xad\nvided, however, that a tax claim was filed with the federal district\ncourt prior to entry of the order of forfeiture, or that a valid lien had\nbeen recorded among the pertinent land records giving the federal\ndistrict court notice of the tax claim prior to entry of the order of\nforfeiture.\nDirective at 2.[l1\nWhere an appeal from an order of forfeiture is no longer available or was un\xc2\xad\nsuccessful, a state or locality asserting a tax claim has no legal right and no judicial\nremedy under the civil forfeiture statute\xe2\x80\x99s \xe2\x80\x9cinnocent owner\xe2\x80\x9d provision as inter\xc2\xad\npreted in Buena Vista. See Copeland Memorandum, 17 Op. O.L.C. at 106-07,\n113 n.13. Nonetheless, a permissible interpretation of the statutes governing civil\nforfeitures would authorize payment of the taxes described in the Directive as an\nexercise of the Attorney General\xe2\x80\x99s equitable discretion in administering civilly\nforfeited property. See 21 U.S.C. \xc2\xa7881 (b)-(e); 28 U.S.C. \xc2\xa7 524(c)(1) (Attorney\nGeneral\xe2\x80\x99s authority in administering civil forfeiture laws); Chevron U.S.A., Inc. v.\nNatural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984) (deference\nto reasonable agency construction of statute it administers, so long as not contrary\nto clearly expressed congressional intent); Fertilizer Inst. v. EPA, 935 F.2d 1303,\n1309 (D.C. Cir. 1991) ( Chevron principles apply to agency interpretations that are\nnot full \xe2\x80\x9clegislative\xe2\x80\x9d rules); General Motors Corp. v. Ruckelshaus, 742 F.2d 1561,\n1565 (D.C. Cir. 1984) (same), cert, denied, 471 U.S. 1074 (1985).\nTwo related arguments support this conclusion. First, a reasonable construction\nof the civil forfeiture statute could consider the tax liens described in the Directive\n1\nYou hav\'e in fo rm ed us, and the fo llo w in g analysis assum es, that the m odifying language follow ing\n\xe2\x80\x9cp r o v id e d , h o w e v e r ,\' applies to both en u m erated categories o f civilly forfeited property\n\n160\n\n\x0cA u th o rity to P ay State and L ocal Taxes on P roperty A fter E ntry o f an O rder o f F orfeiture\n\nto be the equivalent of a pre-offense ownership interest, or other interest, that could\nbe forfeited to the United States and that the Attorney General subsequently could\nrestore, after a court order of forfeiture, to the person who previously held such an\ninterest.\nAs interpreted by the Supreme Court in Buena Vista, the civil forfeiture statute\nprotects the property of an \xe2\x80\x9cowner\xe2\x80\x9d who \xe2\x80\x9cprove[s],\xe2\x80\x9d before the entry of an order of\nforfeiture, \xe2\x80\x9cthat [he or] she is an innocent owner.\xe2\x80\x9d Buena Vista, 507 U.S. at 127\n(plurality opinion); 21 U.S.C. \xc2\xa7 881(a)(6), (7) (commonly referred to as the\n\xe2\x80\x9cinnocent owner\xe2\x80\x9d provision, stating that \xe2\x80\x9cno property shall be forfeited under this\nparagraph, to the extent of the interest of an owner, by reason of any act or omis\xc2\xad\nsion established by that owner to have been committed or omitted without the\nknowledge or consent of that owner\xe2\x80\x9d); id. \xc2\xa7 881(h) (commonly referred to as the\n\xe2\x80\x9crelation back\xe2\x80\x9d provision, stating that \xe2\x80\x9c[a]ll right, title, and interest in property\ndescribed in [section 881(a)] shall vest in the United States upon commission of\nthe act giving rise to forfeiture\xe2\x80\x9d). As the Copeland Memorandum explains, a state\nor locality holding a tax lien against a property is an \xe2\x80\x9cowner\xe2\x80\x9d of that property, and\nin almost all cases, there will be no doubt that the state or locality will satisfy the\nstatute\xe2\x80\x99s \xe2\x80\x9cinnocence\xe2\x80\x9d requirement. See Copeland Memorandum, 17 Op. O.L.C. at\n106; cf. Directive at 1.\nIn light of these considerations, it would not be unreasonable to conclude that\nnotice to the federal district court of the tax claim before the entry of an order of\nforfeiture can constitute the showing or proof required by the statute, in light of\nBuena Vista.2 While an unappealed or unsuccessfully appealed forfeiture order in\nsuch a case would have the effect of vesting the taxing authority\xe2\x80\x99s interest in the\nUnited States, retroactive to the date of the offense giving rise to forfeiture, the\ntaxing authority still would have demonstrated a protected innocent ownership in\xc2\xad\nterest that the court merely failed to recognize before issuing its order. On this\nanalysis, the affirmed or unchallenged forfeiture order would have effected a for\xc2\xad\nfeiture of that interest to the United States, one which the Attorney General could\nremit or mitigate after the conclusion of the forfeiture proceedings. See 21 U.S.C.\n\xc2\xa7 881(d) (laws relating to seizure and forfeiture of property, including mitigation\nand remission of forfeiture, under the customs laws generally apply to civil forfei\xc2\xad\nture under \xc2\xa7 881, except that the Attorney General and her delegees are substituted\nfor the Secretary of the Treasury and customs authorities); 19 U.S.C. \xc2\xa7 1618\n(authority of Secretary of the Treasury, customs officials to \xe2\x80\x9cremit or mitigate\xe2\x80\x9d\nforfeiture upon a finding that the \xe2\x80\x9cforfeiture was incurred without willful negli\xc2\xad\n\n2\nThis con clu sio n is consistent with our discussion in the C opeland M em orandum o f the A ttorney G e n \xc2\xad\ne ra l\xe2\x80\x99s discretionary authority under 28 U S C. \xc2\xa7 524 U nder the analysis em ployed in this M em orandum and\nunder the standards adopted in the D irective, a state or locality w ould still have to have \xe2\x80\x9ce s ta b lis h e d ]\xe2\x80\x9d that it\nis an \xe2\x80\x9c innocent o w n e r\xe2\x80\x9d (w ith the aid o f the presum ption o f \'\xe2\x80\x98innocence\xe2\x80\x9d that is set forth in the D irective and\nthat is consistent w ith the C opeland M em o ran d u m \'s conclusion that the \' \xe2\x80\x9c innocence requirem ent" w ould be\n\xe2\x80\x9ceasy to satisfy in m ost cases\xe2\x80\x9d) for the A ttorney G eneral or her d elegees to make a discretionary paym ent of\npost-offense tax c la im s C opeland M em orandum , 17 O p O L .C at 113 n 13\n\n161\n\n\x0cOpinions o f the O ffice o f Legal C ounsel\n\ngence or without any intention on the part of the petitioner . . . to violate the law\xe2\x80\x9d\nor that there exist \xe2\x80\x9csuch mitigating circumstances as to justify the remission or\nmitigation\xe2\x80\x9d); 28 U.S.C. \xc2\xa7 524(c)(1)(E) (authority of Attorney General to make\n\xe2\x80\x9cdisbursements authorized in connection with remission or mitigation procedures\nrelating to property forfeited under any law enforced or administered by the De\xc2\xad\npartment of Justice\xe2\x80\x9d).3\nA contrary conclusion \xe2\x80\x94 that the entry of an order of forfeiture, by operation of\nthe relation back doctrine, results in the taxing authorities\xe2\x80\x99, in effect, never having\nhad any interest in the property, despite the evidence before the court that they had\nan innocently held ownership interest \xe2\x80\x94 would forge an extremely tight, and rather\nodd, link between the prior existence of a substantive interest (whether or not such\ninterest may be asserted or protected in court proceedings) and the course of sub\xc2\xad\nsequent judicial proceedings. Neither the civil forfeiture statute nor the opinions in\nBuena Vista appear to require such a link.\nSecond, although a forfeiture order may deprive holders of the tax claims de\xc2\xad\nscribed in the Directive only of something less than the type of interest at issue in\nconventional proceedings for remission or mitigation of civil forfeiture (i.e., those\ninvolving petitioners who had an interest in the property prior to its use in the of\xc2\xad\nfense giving rise to forfeiture), the Attorney General\xe2\x80\x99s equitable authority to reduce\nthe harsh impact of forfeiture still can be construed to extend sufficiently beyond\nordinary remission and mitigation to include the discretionary payment of tax\nclaims contemplated by the Directive (as well as the discretionary denial of poten\xc2\xad\ntially eligible requests for relief, if any, that are not covered by the Directive).\nCourts and Congress have stressed that the Attorney General has broad and gener\xc2\xad\nally unreviewable discretion in exercising his or her lawful authority in this area.\nSee, e.g., United States v. Reckmeyer, 836 F.2d 200, 207 (4th Cir. 1987) (granting\nof a proper petition for \xe2\x80\x9crelief or mitigation\xe2\x80\x9d of forfeiture was \xe2\x80\x9ca matter solely\nwithin the unreviewable discretion of the Attorney General\xe2\x80\x9d); United States v.\n$2,857.00, 754 F.2d 208, 214 (7th Cir. 1985) (Attorney General has \xe2\x80\x9cvirtually un\xc2\xad\nreviewable discretion to ameliorate the harshness of forfeiture statutes in appropri-\n\n1\nT h is in te rp retation o f the remedial sch e m e under the civil forfeiture law s also derives su pport from its\nsim ilarity lo the structure C o n g ress contem plated in enacting the \xe2\x80\x9cbona fide purchaser\xe2\x80\x9d provision in crim inal\nforfeitu re statu tes\nSee. e.g , 21 U.S C \xc2\xa7 8 5 3 (n )(6 ); 18 U S.C . \xc2\xa7 1963(/)(6). U nder those provisions, a\nclaim an t w h o estab lish es his bona fide p u rch aser status in co u rt proceedings ancillary to the forfeiture pro\xc2\xad\nceed in g s has a legally p rotected interest m th e property. A valid court order may not forfeit that interest and\nthe A tto rn ey G e n e ra l\xe2\x80\x99s reco g n itio n of such an in terest would n o t be discretionary. Such a bona fide pur\xc2\xad\nc h ase r is in the sam e positio n as a claim ant in civil forfeiture proceedings w ho establishes his innocent\now n er statu s prior to the c o u rt\xe2\x80\x99s entry of an o rd e r o f forfeiture See C opeland M em orandum , 17 Op. O L C\nat 109-11\nT he leg islativ e history o f the bona fide p u rc h a se r provision indicates that C ongress assum ed that a c la im \xc2\xad\nant w ho \xe2\x80\x9c fails to o b tain relief under the . . an cillary hearing provision [w hich enables such a claim ant \xe2\x80\x98in\nessence\n. [to] ch allenge[] the validity\' o f a forfeiture order] . . . may [still] seek equitable re lie f from the\nA ttorney G e n eral." S Rep. No 98-225, at 2 0 8 -0 9 (1983), rep rin te d in 1984 U .S.C C .A N 3 1 8 2 ,3 3 9 1 -9 2\nT he D irectiv e w ould provide equivalent re lie f to som e c laim an ts w ho failed to obtain relief in court pro\xc2\xad\nceed in g s u n d e r th e innocent o w n er provision in the civil forfeiture statute\n\n162\n\n\x0cAuthority to P ay State an d Local Taxes on P roperty A fter E ntry o f an O rder o f F orfeiture\n\nate cases\xe2\x80\x9d); United States v. One 1973 Buick Riviera , 560 F.2d 897, 900 (8th Cir.\n1977) (\xe2\x80\x9coverwhelming weight of authority\xe2\x80\x9d supports the view that \xe2\x80\x9cdenial of [a]\npetition for remission\xe2\x80\x9d is \xe2\x80\x9cnot subject to judicial review on the merits\xe2\x80\x9d); United\nStates v. One 1961 Cadillac , 337 F.2d 730, 732-33 (6th Cir. 1964) (similar);\nS. Rep. No. 98-225, at 207-08 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,\n3390, 3392 (noting that petitions for remission or mitigation of forfeiture \xe2\x80\x9care most\nfrequently filed as the result of civil forfeiture actions\xe2\x80\x9d and that the Attorney Gen\xc2\xad\neral\xe2\x80\x99s decisions with respect to such requests for \xe2\x80\x9cequitable relief\xe2\x80\x99 \xe2\x80\x9c[traditionally\xe2\x80\x9d\nhave been \xe2\x80\x9cviewed entirely as a matter of discretion and not subject to judicial re\xc2\xad\nview u s).4\nIn the draft AG Memo, the first full paragraph on page three could be revised to\nreflect the advice given in this part of this Memorandum, and should be revised to\nmake clear that payment of liens for post-offense taxes where a state or local tax\nlien-holder establishes its \xe2\x80\x9cinnocent ownership\xe2\x80\x9d status to the court\xe2\x80\x99s satisfaction\nbefore the entry of a judgment of forfeiture is not (as the AG Memo\xe2\x80\x99s use of the\nphrase \xe2\x80\x9cis permitted to pay\xe2\x80\x9d appears to suggest) an exercise of the Attorney Gen\xc2\xad\neral\xe2\x80\x99s discretion.\nII.\nThe draft Attorney General Memorandum concludes:\n[T]he statutory language [in 21 U.S.C. \xc2\xa7 853(i)(l), 18 U.S.C.\n\xc2\xa7 1963(g)(1) and other criminal forfeiture statutes containing, or\nadopting by reference, identical provisions] that permits the Attor\xc2\xad\nney General to \xe2\x80\x9ctake any other action to protect the rights of inno\xc2\xad\ncent persons which is in the interest of justice\xe2\x80\x9d provides the\nnecessary statutory authority to make payments of state and local\ntaxes on property forfeited under the criminal forfeiture laws as a\ndiscretionary matter.\n\nAG Memo at 3. As the AG Memo correctly indicates, holders of state and local\nlax claims against such property for the period after the commission of the act\ngiving rise to forfeiture have no legal right and no judicial remedy under the crimi\xc2\xad\nnal forfeiture laws. There is no equivalent to the civil forfeiture statute\xe2\x80\x99s \xe2\x80\x9cinnocent\n\n4\nBui see also LaC hance v. DEA, 672 F Supp 76, 7 9 -8 0 (E D N .Y . 1987) ( \'\xe2\x80\x98form alized invariable policy\no f denying petitions\xe2\x80\x9d and failure \xe2\x80\x9c to give any reason for d enial\xe2\x80\x9d is basis for lim ited ju dicial intervention \xe2\x80\x9cto\ndirect [an] agency to exercise u s ju risd ictio n " to decide the petition), M em orandum for Leland E. Beck,\nS enior Counsel, O ffice o f Policy D evelopm ent, from R osem ary Hart, A cting D eputy A ssistant A ttorney\nG eneral, O ffice o f Legal C ounsel, Re S ta tu to ry A u th o riza tio n f o r the P roposed R e g ulations G overning the\nR em ission or M itigation o j F orfeited P ro p erty (M ar 25, 1993) (interpreting civil forfeiture statute rem ission\nand m itigation authority as not authorizing transfers to persons w ho had no prior interest in the forfeited\nproperty but who were victim s o f the offense giving rise to forfeiture).\n\n163\n\n\x0cO pinions o f the O ffice o f Legal C ounsel\n\nowner\xe2\x80\x9d provision in the criminal forfeiture statutes, and the \xe2\x80\x9cbona fide purchaser\xe2\x80\x9d\nexception is unavailable to such claimants. See Copeland Memorandum, 17 Op.\nO.L.C. at 112. A permissible construction of the \xe2\x80\x9crights of innocent persons\xe2\x80\x9d pro\xc2\xad\nvision, however, would authorize discretionary payment of such taxes.5\nIt would be difficult to base the authority to grant such equitable and discretion\xc2\xad\nary relief on the analysis offered in Part I of this Memorandum to support the post\xc2\xad\nforfeiture order payment of claims for post-offense taxes in the civil forfeiture\ncontext. Because the criminal statutes contain no innocent owner provision, any\n\xe2\x80\x9cshowing\xe2\x80\x9d or \xe2\x80\x9cp ro o f\xe2\x80\x99 with respect to such a tax claimant\xe2\x80\x99s innocent ownership\n(short of the \xe2\x80\x9cbona fide purchaser\xe2\x80\x9d showing which taxing authorities cannot make)\nwould appear to be irrelevant and not to provide a basis for the Attorney General to\nremit or mitigate any forfeited interest. The logic of Buena Vista would seem to\ndictate that the relation back doctrine, see, e.g., 18 U.S.C. \xc2\xa7 1963(c); 21 U.S.C.\n\xc2\xa7 853(c); c / 21 U.S.C. \xc2\xa7 881(h) (civil provision, identical in relevant part), will\nhave operated to leave a tax lien-holder as, in effect, never having held any\n\xe2\x80\x9cinterest of an owner,\xe2\x80\x9d 21 U.S C. \xc2\xa7 881(a)(6), (7), in the property with regard to\npost-offense taxes. On this reasoning, there will have been no ownership interest\nforfeited and, thus, nothing for the Attorney General to remit or mitigate. Cf.\nCopeland Memorandum, 17 Op. O.L.C. at 113 n.13.\nThe better argument derives discretionary and equitable authority of the Attor\xc2\xad\nney General to lessen the impact of forfeiture on the claimants for post-offense\ntaxes from the \xe2\x80\x9crights of innocent persons\xe2\x80\x9d provisions cited in the AG Memo, and\ndepends on a construction of \xe2\x80\x9crights of innocent persons\xe2\x80\x9d that is broader than\n\xe2\x80\x9cinnocent ownership.\xe2\x80\x9d We believe that adopting such a construction would not be\nunlawful and would be within the Attorney General\xe2\x80\x99s authority to interpret and\nadminister the criminal forfeiture statutes. See, e.g., 18 U.S.C. \xc2\xa7 1963(e)-(g);\n21 U.S.C. \xc2\xa7 853(g)-(j) (Attorney General\xe2\x80\x99s authority in administering criminal for\xc2\xad\nfeiture laws and disposing of property seized under criminal forfeiture laws); Chev\xc2\xad\nron U.S.A., Inc., 467 U.S. at 843-44.\nFirst, the statutory language is compatible with such a view. Criminal forfeiture\nstatutes explicitly confer upon the Attorney General the authority to \xe2\x80\x9ctake any\nother action to protect the rights of innocent persons,\xe2\x80\x9d in addition to the authority\nto remit or mitigate forfeitures (and the obligation to recognize the interests of\n3\nT o b e elig ib le for d iscret.o n ary relief u n d e r these p rovisions, it w ould appear to be sufficient for state\nand local tax in g au th o rities 10 be \xe2\x80\x9c innocent o w n e rs,\xe2\x80\x9d w ithin the m eaning o f that term under the civil forfei\xc2\xad\nture pro v isio n s \xe2\x80\x94 a stan d ard th at all or nearly all tax in g au th o rities will meet, cj. C opeland M em orandum ,\n17 O p. O L.C . at 106 ( \'\xe2\x80\x98a state o r locality h o ld in g a lax lien can be an \xe2\x80\x98o w n e r\'\xe2\x80\x9d and \xe2\x80\x9c[t]he \xe2\x80\x98innocence\xe2\x80\x99 re \xc2\xad\nq u irem en t . . . w ould seem to he easy to satisfy in m ost cases \xe2\x80\x99); D irective at 1 (\xe2\x80\x9cin d u lg in g ] a presum ption o f\nin n o c e n ce \xe2\x80\x9d o f taxing a u th o rities under the civil fo rfeitu re statu te \' \xe2\x80\x98in the absence o f exceptional circu m \xc2\xad\nstan c e s\xe2\x80\x9d) W e h ave found n o th in g in the statu to ry language, legislative history or judicial interpretations to\nsug g est that the w ord \xe2\x80\x9c in n o cen t\xe2\x80\x9d in the crim in al fo rfeitu re s ta tu te \'s phrase \xe2\x80\x9cinnocent persons\xe2\x80\x9d is narrow er\nthan the ph rase in the civil forfeiture statute th at c o u rts and C o n g ress have sum m arized as \xe2\x80\x9c innocent\xe2\x80\x9d (in the\nphrase \xe2\x80\x9c in n o cen t o w n e r\xe2\x80\x9d ). S ee S Rep. No. 98-225, at 215, rep rin te d in 1984 U.S C C A.N at 3398, Buena\nVista, 507 U S 111. If \xe2\x80\x9c rig h ts\xe2\x80\x9d is construed as d escrib ed in this M em orandum , the term is b roader than\n\xe2\x80\x9co w n e rsh ip \xe2\x80\x9d or \xe2\x80\x9c in terest o f an o w n e r"\n\n164\n\n\x0cA uthority to P ay State a n d L ocal Taxes on Property A fte r E ntry o f an O rder o f F orfeiture\n\nbona fide purchasers and holders of senior vested interests).\n18 U.S.C.\n\xc2\xa7\xc2\xa7 1467(h)(1), 1963(g)(1), 2253(h)(1); 21 U.S.C. \xc2\xa7 853(i)(l) (emphasis added).\nConstruing the quoted language as more than surplusage requires a conclusion that\nthe Attorney General\xe2\x80\x99s authority is broader than that exercised in ordinary remis\xc2\xad\nsion and mitigation proceedings. Also, the use of the term \xe2\x80\x9crights o f innocent per\xc2\xad\nsons\xe2\x80\x9d in these provisions, but \xe2\x80\x9cright, title, and interest in property\xe2\x80\x9d the forfeiture of\nwhich is subject to remission and mitigation in the civil and criminal forfeiture\nstatutes, 19 U.S.C. \xc2\xa71618; 21 U.S.C. \xc2\xa7 881(a), (h); 18 U.S.C. \xc2\xa7 1963(a)-(c);\n21 U.S.C. \xc2\xa7 853(a)-(c) (emphasis added), and \xe2\x80\x9cinterest o f an owner" in the inno\xc2\xad\ncent owner provisions of the civil forfeiture statute, 21 U.S.C. \xc2\xa7 881(a)(6), (7)\n(emphasis added), suggests a lesser claim on the property, or a looser connection\nbetween the claimant and the property, in the former context. Cf. Black\xe2\x80\x99s Law\nDictionary 812, 1324 (6th ed. 1990) (defining \xe2\x80\x9cinterest\xe2\x80\x9d as \xe2\x80\x9c[t]he most general\nterm . . . to denote a right, claim, title, or legal share in something\xe2\x80\x9d; defining\n\xe2\x80\x9cright,\xe2\x80\x9d in its \xe2\x80\x9cnarrower signification \xe2\x80\x9d as \xe2\x80\x9can interest or title in an object of prop\xc2\xad\nerty\xe2\x80\x9d and, more generally, as \xe2\x80\x9c[t]hat which one person ought to have or receive\nfrom another.\xe2\x80\x9d) (emphasis added). This contrast offers some support for the view\nthat the criminal statutes give the Attorney General discretionary authority to rec\xc2\xad\nognize, after forfeiture, claims that are broader than ownership interests, including\nclaims for taxes for the period after the offense giving rise to forfeiture.\nSecond, the legislative history of two principal criminal forfeiture provisions, 21\nU.S.C. \xc2\xa7 853(i) and 18 U.S.C. \xc2\xa7 1963(g) (provisions that the other criminal forfei\xc2\xad\nture statutes cited in the AG Memo incorporate by reference or replicate), suggests\nthat the Attorney General\xe2\x80\x99s authority is broad enough to include payment of the\ntaxes described in the AG Memo. The description of these provisions states that a\nclaimant who could have raised a bona fide purchaser defense in a hearing ancil\xc2\xad\nlary to a criminal forfeiture proceeding, but who failed to do so, still \xe2\x80\x9cmay seek\nequitable relief from the Attorney General.\xe2\x80\x9d S. Rep. No. 98-225, at 208-09, re\xc2\xad\nprinted in 1984 U.S.C.C.A.N. at 3391-92 (describing, somewhat loosely, this eq\xc2\xad\nuitable relief as being available through a \xe2\x80\x9cremission and mitigation process\xe2\x80\x9d).\nHaving foregone an available legal remedy for protecting an interest acquired after\nthe offense that rendered the property subject to forfeiture, such a claimant would\nseem to be, after the final forfeiture order and the operation of the relation back\ndoctrine, in essentially the same position as an \xe2\x80\x9cinnocent\xe2\x80\x9d state or locality asserting\na tax claim for the post-offense period. Given that Congress\xe2\x80\x99s view was that the\nequitable remedy of petitioning the Attorney General was clearly available to the\npotential bona fide purchaser claimant under existing law prior to the enactment of\nthe bona fide purchaser defense, there would seem to be no reason to infer that\nCongress meant to restrict the remedy only to claimants who could have raised a\nsuccessful bona fide purchaser defense to forfeiture in court proceedings, but were\ntoo slothful or too poorly advised to do so. See id. at 193, reprinted in 1984\nU.S.C.C.A.N. at 3376 (under \xe2\x80\x9c[pjresent [f]ederal [l]aw . . . . [a] party who does not\n165\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\nhave legal basis for defeating the forfeiture, but who has an equitable basis for re\xc2\xad\nlief, may petition the Attorney General.\xe2\x80\x9d).\nThird, judicial interpretations also provide some support for the position taken\nin the AG Memo. The most relevant opinion we have found construes 21 U.S.C.\n\xc2\xa7 853(i)(l) as conferring upon the Attorney General extremely broad equitable\nauthority to do what is \xe2\x80\x98\xe2\x80\x9cfair and ju st,\xe2\x80\x99\xe2\x80\x9d and concludes that a claimant whose claim\nagainst forfeited property arose after the offense giving rise to forfeiture, but whose\ninterest was not that of a bona fide purchaser, could petition the Attorney General\nfor equitable relief to \xe2\x80\x9crecoup some of its losses from [the] forfeited property.\xe2\x80\x9d\nUnited States v. Lavin, 942 F.2d 177, 185 & n.10, 187 (3d Cir. 1991). The opin\xc2\xad\nion does not state which provision in the statutory subsection is relevant. We be\xc2\xad\nlieve that the better argument, and perhaps the only lawful conclusion, is that the\nauthority to grant relief is that provided by the statutory mandate to \xe2\x80\x9ctake any other\naction to protect the rights of innocent persons which is in the interest of justice.\xe2\x80\x9d\n21 U.S.C. \xc2\xa7 853(i)(l); see also United States v. Mandel, 505 F. Supp. 189, 191-92\n(D. Md. 1981) (describing predecessor to current 18 U.S.C. \xc2\xa7 1963 as both\n\xe2\x80\x9cvestfing] the Attorney General\xe2\x80\x9d with \xe2\x80\x9cauthority to make provisions for the remis\xc2\xad\nsion or mitigation of forfeitures\xe2\x80\x9d and \xe2\x80\x9ccharging] him with the obligation of pro\xc2\xad\ntecting the rights of innocent persons\xe2\x80\x9d; suggesting that the latter authority is the\nlikely basis for recognizing claim by third party that he, not defendant, owned\nproperty that court ordered forfeited), aff\xe2\x80\x99d 705 F.2d 446 (4th Cir. 1983); S. Rep.\nNo. 98-225, at 207 n.44, reprinted in 1984 U.S.C.C.A.N. at 3390 (citing Mandel\nas authority for the equitable, discretionary relief process to be retained after the\nenactment of current 18 U.S.C. \xc2\xa7 1963(g)(1) and 21 U.S.C. \xc2\xa7 853(i)( 1)).\nFinally, two references in the draft AG Memo to OLC\xe2\x80\x99s views are, at this stage,\ninappropriate. We believe that the draft AG Memo goes too far in concluding, at\npages 3-4, that the procedure proposed in the AG Memo is \xe2\x80\x9cfully consistent with\nthe letter and spirit\xe2\x80\x9d of the Copeland Memorandum. As this memorandum has\nindicated, the Copeland Memorandum did not address these issues, and a conclu\xc2\xad\nsion that such payments are permissible depends on an analysis that the Copeland\nMemorandum did not pursue or evaluate. If a statement similar to that contained\nin the draft AG Memo is to be retained, it should go no further than a statement\nthat the proposed procedure is \xe2\x80\x9ccompatible\xe2\x80\x9d or \xe2\x80\x9cnot inconsistent\xe2\x80\x9d with the\nCopeland Memorandum. Also, this Office has not yet reviewed the legality of the\ndelegation that the proposed order attached to the draft AG Memo would effect.\nAccordingly, the next to last paragraph of the draft AG Memo (stating that OLC\nhas confirmed that the delegation is permissible) cannot be included at this time.\nOrdinarily, this Office addresses such issues at a later stage, as part of a review of a\nproposed Attorney General order for form and legality.\n\n166\n\n\x0cA uthority to Pay Stale an d Local T axes on P roperty A fter E ntry o f an O rder o f F orfeiture\n\nIII.\nFor the reasons set forth above, we conclude that it would not be unlawful for\nthe Attorney General (or those to whom her authority is properly delegated, see\n28 U.S.C. \xc2\xa7\xc2\xa7 509, 510) to pay, in an exercise of equitable discretion, the taxes on\ncivilly forfeited property as described in the proposed Directive from the Executive\nOffice for Asset Forfeiture, and the taxes on criminally forfeited property as de\xc2\xad\nscribed in the draft Memorandum to the Attorney General from the Office for As\xc2\xad\nset Forfeiture.\nExercise of the Attorney General\xe2\x80\x99s equitable discretion to pay tax claims must,\nof course, comply with any applicable regulations, unless and until such regula\xc2\xad\ntions are lawfully modified. See, e.g., 28 C.F.R. \xc2\xa7\xc2\xa7 9.1-9.7 (1993). See generally\nUnited States v. Nixon, 418 U.S. 683, 694-95 (1974); United States ex rel. Accardi\nv. Shaughnessy, 347 U.S. 260 (1954).\n\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n167\n\n\x0c'