Showing 1001–1010 of 2202

• 9/16/1983

  The Secretary of Transportation's Continued Authority to Sell the Consolidated Rail Corporation Under the Regional Rail Reorganization Act in Light of INS v. Chadha, 462 U.S. 919 (1983)

  The legislative veto provisions of the Regional Rail Reorganization Act, 45 U.S.C. §§ 761(a)(3), 767(d), which purport to condition the Secretary of Transportation's authority to sell Consolidated Rail Corporation (Conrail) as an entity or by sale o f assets, are unconstitutional under the Supreme Court's decision in INS v. Chadha, 462 U.S. 919 (1983). Nonetheless, the Secretary of Transportation continues to have authority to sell Conrail, either as an entity or by sale of assets, because the unconstitutional veto provisions are severable from the rest of the statute. The severability of an unconstitutional provision from the remainder of the statute is determined by analyzing whether Congress would have enacted the remainder of the statute had it recognized that the questioned provisions were unconstitutional. The presence of a severability clause in the Regional Rail Reorganization Act creates a strong presumption that Congress intended that any unconstitutional provisions be severable from the remainder of the statute. The legislative veto provisions are further presumed severable because the Secretary's sale authority remains "fully operative as a law" without the legislative veto provisions. The legislative history, taken as a whole, also suggests that Congress would have wanted the Secretary of Transportation to exercise the sale authority even without the legislative vetoes, and thus provides insufficient evidence to rebut the presumption of severability created by the severability clause and the otherwise "fully operative" statutory scheme. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23531/download.

  9/16/1983

• 9/15/1983

  Applicability of the Cargo Preference Act to the Transportation of Alaskan Oil to the Strategic Petroleum Reserve

  Shipments of Alaskan oil for the Strategic Petroleum Reserve, made on commercial United States-flag ships as required by the Jones Act, 46 U.S.C. § 883, may be counted by the Department of Energy towards the 50% United States-flag cargo preference share required by the Cargo Preference Act, 46 U.S.C. § 1241(b). The Cargo Preference Act, 46 U.S.C. § 1241(b), applies to both foreign and domestic cargoes procured by the United States, and is not limited to commerce in which United States-flag vessels face foreign competition. In addition, the Act is an "otherwise applicable Federal procurement statute" that may be waived by the Secretary of Energy under § 804(b) of the Energy Security Act, 10 U.S.C. § 7340(k). The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23526/download.

  9/15/1983

• 9/12/1983

  Legislative Veto Provision Contained in S 204(e) of FLPMA

  This opinion memorializes advice the OLC provided to the Solicitor of the Interior on constitutionality of the legislative veto provision contained in section 204(e) of the Federal Land Policy and Management Act of 1976 (FLPMA), which would allow a Congressional committee to direct the Secretary of the Interior to withdraw certain public lands from mineral leasing. The opinion concludes that the veto provision would be unconstitutional under INS v. Chadha. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at https://justice.gov/olc/page/file/936136/download.

  9/12/1983

• 9/6/1983

  Retaliation for Soviet Attack on Korean Airliner

  This opinion advised the State Department that states with bilaterial aviation treaties with the Soviet Union could suspend them in the wake of the Soviet Union’s attack on a commercial plane flying from the United States to South Korea. The opinion reasoned that the Soviet Union had violated international law, including the United Nations Charter, but that the suspension of the Charter or other human rights treaties “may not be lawful or practical” in response to another country’s breach. The opinion canvassed past examples of other forms of reprisal, like suspending other treaties or enacting economic sanctions, but noted some uncertainty about the scope of reprisals recognized under international law.

  9/2/2022

• 8/24/1983

  Proposed Legislation to Grant Additional Power to the President's Commission on Organized Crime

  The President's Commission on Organized Crime, a Presidential advisory committee with members from the Legislative and Judicial Branches, may be granted subpoena power without violating the Appointments Clause, U.S. Const, art. II, § 2, cl. 2, or the Incompatibility Clause, id., art. I, § 6, cl. 2. As statutory aids to its investigation, the Commission should also seek the power to administer oaths and to have false statements punished as perjury. Constitutional and policy concerns militate against seeking independent authority for the Commission to enforce subpoenas by holding individuals in contempt, or to grant use immunity. The power to grant use immunity raises questions about the Commission's advisory role and the propriety of service by members of the Legislative and Judicial Branches. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23521/download.

  8/24/1983

• 8/24/1983

  Legality of Proposed Prepublication Review Requirement in SCI Access Agreement

  This memo reiterated the OLC's concerns about language in a proposed prepublication review agreement, requiring review of materials related to "intelligence activities." However, the OLC informed the deputy assistant attorney general of Federal Programs that it would withdraw its objections given what it understood about the bureaucratic difficulties around redrafting, based on the understanding that each agency responsible for providing access to sensitive compartmented information would define the term more narrowly.

  9/2/2022

• 8/1/1983

  Restrictions on a Federal Appointee's Continued Employment by a Private Law Firm

  Federal conflict of interest laws, 18 U.S.C. §§ 202—209, and Department of Justice Standards of Conduct, 28 C.F.R. pt. 45, restrict the private practice of law by an attorney while employed by the Department of Justice. If the attorney is hired as a "regular government employee," i.e., expected to serve more than 130 days in any 365-day period, he will be prohibited from acting as an agent or attorney for anyone other than the United States in any matter in which the United States is a party or has a direct and substantial interest, and from receiving compensation for services rendered by himself or another in such matters. In addition, Department regulations prohibit the outside practice of law by Department of Justice employees, in the absence of a waiver. If the attorney is hired as a "special government employee," i.e., expected to serve 130 days or less in any 365-day period, he will be subject to representation and compensation restrictions only with respect to matters in which he has participated personally and substantially while in government or which are pending in the Department of Justice. The Department's regulation prohibiting the outside practice of law does not apply to special government employees. Under 18 U.S.C. § 208 all government employees must disqualify themselves from participating for the government in any matters in which they or their employers, among others, have a financial interest. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23516/download.

  8/1/1983

• 7/1/1983

  First Amendment Issues Implicated in Section 202 Loans and the Community Development Block Grant Program

  In this memo, the OLC considered the impact of the Establishment Clause on two programs administered by the Department of Housing and Urban Development. The OLC concluded that, to be eligible for a loan for housing for elderly and disabled families, a religious organization would have to create a separate nonreligious entity to be eligible for funds. However, it concluded that language in an organization's charter dedicating it generally to "religious, charitable, scientific, or educational purposes" would not automatically disqualified the organization from receiving funds.

  9/2/2022

• 5/18/1983

  The President's Power to Remove the Board of Directors of the Pennsylvania Avenue Development Corporation

  In the absence of a clear legislative intent to the contrary, the President may remove his appointees at will. The Pennsylvania Avenue Development Corporation Act of 1972, 40 U.S.C. §§ 871 et seq., provides for appointment of a board of directors by the President, but is silent on removal. Although the Act provides for a six-year term of office, a provision for a term, by itself, is not a restriction on the President's removal authority, but rather, is a limitation on the period for which an appointee may serve without reappointment. Nothing in the statutory scheme, legislative history, or in the nature of the Board's functions, indicates an intent to restrict the President's removal power. Therefore, the board of directors may be removed by the President at will. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23511/download.

  5/18/1983

• 5/17/1983

  Applicability of 10 U.S.C. § 973(b) to JAG Officers Assigned to Prosecute Petty Offenses Committed on Military Reservations

  This opinion considers the practice of appointing regular JAG (Judge Advocate General's Corps) officers as special assistant United States attorneys to prosecute petty offenses committed on military reservations. The opinion analyzes 10 U.S.C. § 973(b), which expressly prohibits a "regular officer of an armed force on active duty" from holding a civil office absent additional legislation, and concludes that the current arrangement between the DOD and the DOJ appointing JAGs as special assistant United States attorneys is inconsistent with that statute's prohibition. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at https://justice.gov/olc/page/file/965131/download.

  5/17/1983