Section 543 of the National Defense Authorization Act for Fiscal Year 2008 does not automatically advance incumbent Judge Advocates General to a three star general officer grade, but rather such promotion requires a separate appointment by the President, by and with the advice and consent of the Senate.

The incumbent Judge Advocates General may continue to serve out their full terms in their present two star grades, though the President may nominate them for promotion to the higher grade at any time, if he so chooses.

April 14, 2008

The authority of the Office of Government Ethics to administer the Executive Branch ethics program under the Ethics in Government Act of 1978 and other statutes does not extend to the Smithsonian Institution or its personnel.

February 29, 2008

The statute authorizing the H-1B visa program does not waive the federal Government’s sovereign immunity. Therefore, an administrative award of back wages to alien physicians hired by the Department of Veterans Affairs under the program is barred by sovereign immunity.

February 11, 2008

Under 26 U.S.C. § 7803 (2000), the five-year term of the Commissioner of Internal Revenue runs from the date of appointment and is not calculated from the expiration of his predecessor’s term.

December 4, 2007

A member of a uniformed service appointed to a civilian position while on terminal leave pending retirement from the service is entitled to credit for his years of active military service only for the duration of his terminal leave.

Once the employee retires from the uniformed service, he no longer is entitled to credit for his years of active military service unless he satisfies certain statutory exceptions detailed in 5 U.S.C. § 6303(a) or (e). The employee’s leave-accrual rate must be recalculated upon his retirement to reflect his reduced years of creditable service.

October 16, 2007

October 16, 2007

October 10, 2007

The President may designate an Acting Attorney General under the Vacancies Reform Act, 5 U.S.C. §§ 3345-3349d, even if an officer of the Department otherwise could act under 28 U.S.C. § 508, which deals with succession to the office of the Attorney General.

September 17, 2007

A member of the Federal Bureau of Investigation Director’s Advisory Board does not hold an “Office of Profit or Trust” under the Emoluments Clause of the Constitution.

June 15, 2007

A “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9) is limited to those offenses of which the use or attempted use of physical force or the threatened use of a deadly weapon is an element—that is, a factual predicate specified by law and required to support a conviction.

Where the legal definition of the crime at issue contains a disjunctive element (which requires proof of only one of multiple specified factual predicates), only one subpart of which requires the use or attempted use of physical force or the threatened use of a deadly weapon, application of the prohibition in section 922(g)(9) will turn on whether the factfinder found that the subpart meeting the “misdemeanor crime of domestic violence” definition had been proved (or whether the defendant pleaded guilty to that subpart). The answer to that question may be gleaned from the record of conviction or the supporting record of proceedings in the court of conviction. Police reports cannot answer that question.

The above interpretations also govern background checks by the Federal Bureau of Investigation for firearms transfers under the National Instant Background Check System, but additional materials, including police reports, may be relied upon by the NICS for certain limited purposes.

May 17, 2007

A position to which is delegated by legal authority a portion of the sovereign powers of the federal Government and that is "continuing" is a federal office subject to the Constitution's Appointments Clause. A person who would hold such a position must be properly made an "Officer[] of the United States" by being appointed pursuant to the procedures specified in the Appointments Clause.

April 16, 2007

Two alternative kidney donation practices, in which a living donor who is incompatible with his intended recipient donates a kidney to a stranger in exchange for the intended recipient's receiving a kidney from another donor or increased priority on a waiting list, do not violate the prohibition on transfers of organs for "valuable consideration" in 42 U.S.C. § 274e..

March 28, 2007

The longstanding interpretation of the Executive Branch that service by a special government employee during any part of a day counts as a full day under 18 U.S.C. §§ 203 and 205, which impose greater conflict of interest restrictions after a special government employee works 60 days, is reaffirmed.

January 26, 2007

The Integrity Committee has authority to review, refer for investigation, and report findings with respect to, administrative allegations of wrongdoing made against a former Inspector General when the Committee receives the allegations during the subject’s tenure as Inspector General, even if the subject later leaves office.

September 5, 2006

Under 18 U.S.C. § 208, a nonprofit organization does not have a “financial interest” in a particular matter solely by virtue of the fact that the organization spends money to advocate a position on the policy at issue in the matter.

January 11, 2006

The federal Government’s sovereign immunity has been waived with respect to the whistleblower provisions of the Solid Waste Disposal Act and the Clean Air Act, but not with respect to the whistleblower provision of the Clean Water Act.

September 23, 2005

The President has authority to appoint a member of the Board of the Legal Services Corporation who has been confirmed after his or her statutory term of office has expired, where the holdover provision of the statute allows a member to serve until a successor is appointed.

September 20, 2005

Certain proposed amendments to the Secretary of Defense’s Military Commission Order No. 1 are consistent with the President’s Military Order of November 12, 2001.

August 12, 2005

The federal Government has authority under the Defense Base Closure and Realignment Act of 1990, as amended, to close or realign a National Guard installation without the consent of the governor of the State in which the installation is located.

August 10, 2005

Section 531(a)(1) of title 10 does not affirmatively prohibit delegation to the Secretary of Defense of the President's appointment authority.

The Appointments Clause of the Constitution does not prohibit Congress from allowing the President to choose between making such an appointment himself and delegating it to the Secretary of Defense.

So long as each nomination is submitted to the Secretary of Defense for approval (whether individually or in groups) and each appointment is made in the name of the Secretary of Defense (whether the document evidencing the appointment be signed by the Secretary or an authorized subordinate officer), the Constitution would permit functions related to the appointment process to be delegated to a subordinate officer below the Secretary of Defense.

July 28, 2005

On the facts described, a person whom a judicial nominee asks to assist him in connection with the nomination would not be an “officer” or “employee” and therefore the federal conflict of interest laws would not apply to him.

July 22, 2005

The President may sign a bill within the meaning of Article I, Section 7 by directing a subordinate to affix the President's signature to such a bill, for example by autopen.

July 7, 2005

Covered entities and those persons rendered accountable by general principles of corporate criminal liability may be prosecuted directly under 42 U.S.C. § 1320d-6, and the knowingly element of the offense set forth in that provision requires only proof of knowledge of the facts that constitute the offense.

June 1, 2005

A member of the President's Council on Bioethics does not hold an "Office of Profit or Trust" within the meaning of the Emoluments Clause of the Constitution.

March 9, 2005

Under the definition of “conviction” contained in the Immigration and Nationality Act, for a conviction not involving a first-time simple possession of narcotics, an alien remains convicted, and thus removable under the Act, notwithstanding a subsequent state action to vacate or set aside the conviction that does not reflect a judgment about the merits of the underlying adjudication of guilt.

January 18, 2005

At the time the National Security Intelligence Reform Act of 2004 takes effect, the then-current Director of Central Intelligence would not require a new appointment to the office of Director of the Central Intelligence Agency should the President wish him to serve in that position.

January 12, 2005

The laws governing destruction of background-check information do not require the Bureau of Alcohol, Tobacco, Firearms, and Explosives to destroy information it previously received from the National Instant Criminal Background Check System when the NICS had determined that an individual seeking to purchase a firearm may not lawfully receive a firearm in the circumstance when the NICS later overturns that determination.

January 11, 2005

This opinion interprets the federal criminal prohibition against torture codified at 18 U.S.C. §§ 2340-2340A. It supersedes in its entirety the August 1, 2002 opinion of this Office entitled Standards of Conduct under 18 U.S.C. §§ 2340-2340A.

That statute prohibits conduct "specifically intended to inflict severe physical or mental pain or suffering." This opinion concludes that "severe" pain under the statute is not limited to "excruciating or agonizing" pain or pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death."

The statute also prohibits certain conduct specifically intended to cause "severe physical suffering" distinct from "severe physical pain."

December 30, 2004

In appointing a new member to the United States Commission on Civil Rights, in order to comply with the statutory requirement that “[n]ot more than 4 of the members shall at any one time be of the same political party,” the President should look to the party affiliation of the other members at the time the new member is appointed.

December 6, 2004

Under 42 U.S.C. § 1975, the six-year term of a member of the United States Commission on Civil Rights begins upon the expiration of his or her predecessor's term, even if the succeeding member is appointed some time after the predecessor's term ends.

November 30, 2004

Section 504 of the Rehabilitation Act generally applies to tribally controlled schools that receive federal financial assistance from the Department of Justice.

November 16, 2004

The payment of travel expenses for International Trade Administration fellows is barred by 31 U.S.C. § 1345 because the proposed ITA fellowship program that would bring representatives from various countries to the United States would constitute a “meeting” within the meaning of section 1345.

October 7, 2004

The Department of Commerce may prescribe regulations limiting the partisan political activities of the Commissioned Officers Corps in the National Oceanic and Atmospheric Administration.

July 29, 2004

The Equal Employment Opportunity Commission lacks the authority to initiate an action in federal court against a public employer to enforce a settlement or conciliation agreement negotiated by the EEOC during its administrative process.

September 8, 2003

The Establishment Clause does not bar the award of historic preservation grants to the Old North Church or to other active houses of worship that qualify for such assistance, and the section of the National Historic Preservation Act authorizing the provision of historic preservation assistance to religious properties listed on the National Register of Historic Places is constitutional.

April 30, 2003

In determining whether to release on bond undocumented migrants who arrive in the United States by sea seeking to evade inspection, it is appropriate to consider national security interests implicated by the encouragement of further unlawful mass migrations and the release of undocumented alien migrants into the United States without adequate screening.

In bond proceedings involving aliens seeking to enter the United States illegally, where the Government offers evidence from sources in the Executive Branch with relevant expertise establishing that significant national security interests are implicated, Immigration Judges and the Board of Immigration Appeals shall consider such interests.

Considering national security grounds applicable to a category of aliens in denying an unadmitted alien’s request for release on bond does not violate any due process right to an individualized determination in bond proceedings under section 236(a) of the Act.

April 17, 2003

Under 21 U.S.C. § 878(a)(5), the Attorney General may authorize the Drug Enforcement Administration to investigate possible violations of federal law, even if those violations do not concern the narcotics laws.

March 24, 2003

The National Labor Relations Board may issue decisions even when only two of its five seats are filled, if the Board, at a time when it has at least three members, delegates all its powers to a three-member group and the two remaining members are part of this group and both participate in the decisions.

March 4, 2003

The Immigration and Nationality Act by its terms grants the Attorney General a full 90 days to effect an alien’s removal after the alien is ordered removed under section 241(a) of the Act, and it imposes no duty on the Attorney General to act as quickly as possible, or with any particular degree of dispatch, within the 90-day period. This reading of the Act raises no constitutional infirmity.

It is permissible for the Attorney General to take more than the 90-day removal period to remove an alien even when it would be within the Attorney General's power to effect the removal within 90 days. The Attorney General can take such action, however, only when the delay in removal is related to effectuating the immigration laws and the nation’s immigration policies. Among other things, delays in removal that are attributable to investigating whether and to what extent an alien has terrorist connections satisfy this standard.

February 20, 2003

The process of appointing an individual as a member of the United States Holocaust Memorial Council was not completed.

Even if the process of appointing a member of the Council had been completed, the President's appointment of another individual to that same position effected a removal of that appointee.

February 6, 2003

The Department of Transportation possesses the authority to issue a regulation that, under section 845(a)(1) of title 18, would exempt Canadian truck drivers from criminal liability under section 842(i) of that title. DoT, however, has not issued such a regulation, and therefore section 842(i) liability would attach to a Canadian truck driver transporting explosives in the United States.

February 6, 2003

Canteen service provided through the Veterans’ Canteen Service is not exempt from review under the Federal Activities Inventory Reform Act of 1998.

January 31, 2003

Two members of the National Labor Relations Board who received recess appointments between the first and second sessions of the 107th Congress may not continue to serve on the Board after the Senate adjourned the second session sine die.

The Stafford Disaster Relief and Emergency Assistance Act of 1974 and its implementing regulations permit FEMA to provide federal disaster assistance for the reconstruction of Seattle Hebrew Academy, a private religious school that was damaged in an earthquake in 2001. The Establishment Clause of the First Amendment does not pose a barrier to the Academy's receipt of such aid.

44 U.S.C. § 1903 does not prevent executive agencies from using private printers at agency expense to print copies of government publications for their own use while at the same time requisitioning depository copies from the Government Printing Office at GPO expense.

August 22, 2002

The Board of Governors of the Federal Reserve System may, consistent with its obligations under the Government in the Sunshine Act, place observers of an open meeting of the Board in a separate room to watch the meeting on closed-circuit television.

It is permissible under both the Sunshine Act and the Piracy Act for the Board to require disclosure of personal information and satisfaction of a security check as a condition of entering the Board's buildings for access to the separate room to observe an open meeting.

Expatriating a U.S. citizen subject to the Citizenship Clause of the Fourteenth Amendment on the ground that, after reaching the age of 18, the person has obtained foreign citizenship or declared allegiance to a foreign state generally will not be possible absent substantial evidence, apart from the act itself, that the individual specifically intended to relinquish U.S. citizenship. An express statement of renunciation of U.S. citizenship would suffice.

APPLICABILITY OF INELIGIBILITY CLAUSE TO APPOINTMENT OF CONGRESSMAN TONY P. HALL
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AUTHORITY OF THE CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD TO DELEGATE POWER
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The congressional-disclosure exception to the disclosure prohibition of the Privacy Act generally does not apply to disclosures to committee ranking minority members.

December 5, 2001

A provision prohibiting the use of appropriated funds for United Nations peacekeeping missions involving the use of United States Armed Forces under the command of a foreign national unconstitutionally constrains the President's authority as Commander in Chief and his authority over foreign affairs.

A provision prohibiting the use of appropriated funds for cooperation with, assistance to, or other support for the International Criminal Court would be unconstitutional insofar as it would prohibit the President from providing support and assistance to the ICC under any and all circumstances, but it can be applied in a manner consistent with the President's constitutional authority in the area of foreign affairs.

A member of the Civil Rights Commission, appointed when a predecessor died before the end of his term, serves only the remainder of her predecessor’s term.

October 31, 2001

The Federal Bureau of Investigation may check whether names of individuals known to be prohibited from purchasing a firearm under 18 U.S.C. § 922(g)(5) appear in records concerning allowed transfers in the audit log of the National Instant Criminal Background Check System in the course of auditing the performance of the NICS, and may share the results of such searches with the Bureau of Alcohol, Tobacco, and Firearms.

October 1, 2001

The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.

The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.

The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

September 25, 2001

A Director of the Office of Thrift Supervision who resigns at the President's request is not subject to the two-year restriction, under 12 U.S.C. § 1812(e), against working for an insured depository institution or a depository institution holding company.

September 4, 2001

The President may make a recess appointment to the National Labor Relations Board of a person whose term as a Senate-confirmed member expired during the current recess of the Senate.

August 31, 2001

The Chairman of the Consumer Product Safety Commission serves at the pleasure of the President and the President has the constitutional authority to remove her for any reason.

Upon her removal, the Chairman will still continue to serve as a Commissioner, and, under, 15 U.S.C. § 2053(d), the Vice-Chairman of the Commission will assume the post of Chairman.

July 31, 2001

The fact that a faith-based organization is organized as a tax-exempt, nonprofit entity under section 501(c)(3) of the Internal Revenue Code does not affect the organization’s ability to invoke the religious exemptions under sections 702(a) and 703(e)(2) of the Civil Rights Act of 1964.

June 25, 2001

The President has the authority to remove the Staff Director of the United States Commission on Civil Rights and to appoint an Acting Staff Director.

March 30, 2001

The Secretary of Commerce may revoke a delegation to the Director of the Census without submitting the revocation to the notice and comment procedures of the Administrative Procedure Act, notwithstanding the fact that the Secretary voluntarily elected to follow those procedures in issuing the delegation.

February14, 2001

The principles set forth in some opinions of the Comptroller General addressing limitations on advertising by federal agencies beyond the "publicity or propaganda" rider would not prohibit the GSA's advertisements to other agencies.

January 19, 2001

The universe of "available obligations" under Title VI of the Water Resources Development Act of 1999 includes obligations of government corporations and government-sponsored entities whose charter statutes provide that their obligations are lawful investments for federal trust funds.

The fiduciary duty owed pursuant to a federal trust fund is defined and limited by the terms of the statute creating the trust.

January 19, 2001

Congress did not intend the alienage restriction set forth in title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 to apply extraterritorially. For this reason, the provision of Stafford Act assistance on the Federated States of Micronesia and the Republic of Marshall Islands by the Federal Emergency Management Agency would not violate the PRWORA.

January 19, 2001

OGE may not issue Touhy regulations pursuant to 5 U.S.C. § 301 because OGE is not an "executive department" within the meaning of § 301.

OGE may issue Touhy regulations, insofar as they concern the production of agency records, pursuant to 44 U.S.C. § 3102 of the Federal Records Act.

OGE may issue regulations concerning the appearance of agency employees as witnesses on official matters, pursuant to the implied authority of OGE. s organic statute, 5 U.S.C. app. § 401.

January 18, 2001

STATE TAXATION OF INCOME OF CERTAIN NATIVE AMERICAN ARMED FORCES MEMBERS
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November 22, 2000

November 3, 2000

October 23, 2000

October 17, 2000

October 16, 2000

Application of 18 U.S.C. § 1302 to prohibit the mailing of truthful advertising concerning lawful gambling operations (except as to state-operated lotteries in some circumstances) would violate the First Amendment. Accordingly, the Department of Justice will refrain from enforcing the statute with respect to such mailings.

September 25, 2000

The Government Corporation Control Act does not require the National Aeronautics and Space Administration to obtain legislative authorization before entering into a "gain sharing benefit" agreement with a private corporation that grants NASA deferred cash payments based on an increase in the value of the corporation's common stock.

September 18, 2000

A federal government employee who obtains patent rights to an invention made in the course of federal employment ordinarily does not violate 18 U.S.C. § 209 by licensing the patent rights to a private entity and receiving royalty payments in exchange, because the payments are not "compensation for [the employee. s] services" in the government.

September 7, 2000

August 31, 2000

August 18, 2000

Under the Clean Air Act Amendments of 1990 and general principles governing the operation of boards, the day-to-day administration of Chemical Safety and Hazard Investigation Board matters and execution of Board policies are the responsibilities of the chairperson, subject to Board oversight, while substantive policymaking and regulatory authority is vested in the Board as a whole.

In disputes over the allocation of authority in specific instances, the Board's decision controls, as long as it is not arbitrary or unreasonable.

June 26, 2000

The post-employment restrictions of 18 U.S.C. § 207(c) apply to persons who are assigned from a university or a state or local government to the Department of Energy under the Intergovernmental Personnel Act and are compensated at or above the ES-5 level, except for those who occupy positions ordinarily below the ES-5 level and who receive salaries only from the detailing employers, with the federal agency reimbursing those employers for an amount less than an ES-5 salary.

June 26, 2000

The Resource Conservation and Recovery Act authorizes the Environmental Protection Agency to assess penalties against federal agencies for violations of RCA's underground storage tank provisions. EPA's underground storage tank field citation procedures do not violate RCRA or the Constitution.

June 14, 2000

Military Police have the authority to issue citations, enforceable in federal court, to motorists who violate traffic laws on Bolling Air Force Base.

Congress has given the General Services Administration limited authority over military installations for the narrow purpose of issuing and enforcing the regulations related to motor vehicle violations.

June 5, 2000

The United States Executive Director and the Alternate United States Director at the International Monetary Fund and the World Bank are not part of an Executive agency, and therefore vacancies in those offices are not covered by the Federal Vacancies Reform Act.

May 11, 2000