Showing 881–890 of 2202

• 12/15/1987

  Outline of Constitutional Defense of the Sentencing Commission Within the Executive Branch

  This memo considered whether the Sentencing Commission was placed in the judical or executive branched. It concluded that the Commission was within the executive branch because the promulgation of binding sentencing guidelines was an exercise of delegated legislative power and not a judicial function.

  9/2/2022

• 12/14/1987

  Authority to Impose AIDS-Related Parole Conditions on HIV-Positive Parolees

  This memo examined whether the United States Parole Commission had authority to impose certain parol conditions on federal parolees with HIV. It concluded that the Commission’s broad, discretionary authority to impose parole conditions to “protect the public welfare" extended to reasonable conditions to prevent the spread of AIDS.

  9/2/2022

• 12/9/1987

  Use of Confidential Information

  This memo examined whether the Immigration and Naturalization Service (INS) may use information from amnesty applications to institute deportation proceedings. It concluded that INS could not use this information for such a purpose because the Immigration Reform and Control Act forbade the use of application information for purposes other than processing the application or prosecuting applicants who made false statements.

  9/2/2022

• 11/2/1987

  Reappointment of United States Parole Commissioners

  A statute providing for the automatic extension of the term of a Presidential appointee unconstitutionally interferes with the President's authority under the Appointments Clause. 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/23991/download.

  11/2/1987

• 8/31/1987

  Trade Act Restrictions on the Extension of Most-Favored-Nation Rights

  A trade agreement negotiated with Canada to be implemented pursuant to the "fast track" authority provided by the Trade Act of 1974, as amended, is subject to § 102(b)(3) of the 1974 Act, 19 U.S.C. § 2112(b)(3). That section prohibits the extension to other countries of any trade benefits received by a country under a "fast track" agreement if such agreement provides for a reduction or elimination of any duty imposed by the United States. As a matter of domestic law, this prohibition was intended to, and does, impair the automatic operation of most-favored-nation clauses in various treaties to which the United States is a party. The impairment caused by § 2112(b)(3) can be reduced in this instance by simultaneously concluding an agreement with Canada addressing non-duty benefits and a separate agreement addressing duty reductions. Section 2112(b)(3) would prevent only the benefits given to Canada under the latter agreement from being extended to third countries enjoying applicable most-favored-nation rights. Furthermore, any legislation implementing the trade agreement with Canada would not operate to repeal the operation of § 2112(b)(3) in this case unless Congress expressly provided to that effect in the legislation. Finally, the United States' international obligations with respect to most-favored-nation agreements have force even if such agreements were concluded after enactment of § 2112(b)(3). 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/23986/download.

  8/31/1987

• 8/14/1987

  Constitutionality of Closing the Palestine Information Office, an Affiliate of the Palestine Liberation Organization

  The federal government may, without violating the First Amendment or the Bill of Attainder Clause of the Constitution, order the Palestine Information Office in Washington to close. The political branches have broad authority to control the flow of funds into the United States, and may prevent all commerce between foreign and domestic entities, or cut off the supply of all noninformational material from a foreign country to a domestic entity. Furthermore, neither foreign political entities, nor domestic organizations and individuals to the extent they profess an identity with such entities, have constitutional rights under the First Amendment. The First Amendment also permits restrictions on the speech and association rights of domestic organizations and individuals when they act pursuant to the direction and control of a foreign entity. The same restrictions on the expressive activities of domestic organizations and individuals are not permitted, however, outside the scope of such a relationship. 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/23981/download.

  8/14/1987

• 8/6/1987

  Application of the Davis-Bacon Act to Urban Development Projects That Receive Partial Federal Funding

  Section 110 of the Housing and Community Development Act of 1974 requires that those engaged in construction work that is financed with federal funds (whether in whole or in part) receive wages at rates prevailing in the locality as determined by the Secretary of Labor under the Davis-Bacon Act. However, if the construction work is not financed with federal funds, the Davis-Bacon Act wage rates need not be paid, even if other aspects of the construction project, such as land, fixtures, or services, receive federal funds pursuant to the Act. This question arose pursuant to a dispute between the Secretary of Labor and the Secretary of Housing and Urban Development in the course of exercising their respective authorities under the Act. The Office of Legal Counsel has jurisdiction to resolve the dispute pursuant to Executive Order No. 12146. 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/23976/download.

  8/6/1987

• 7/30/1987

  Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians

  A government employee's proposed service as a member of a commission of international historians established under the auspices of the Austrian government would violate the Emoluments Clause of the Constitution, U.S. Const, art. I, § 9, cl. 8. 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/23971/download.

  7/30/1987

• 7/30/1987

  Title X Family Planning Program Proposals

  Section 1008 of Title X prohibits Title X programs from counseling and making referrals related to abortion as a method of family planning, except where such counseling and referrals are medically indicated. Such a limitation on the use o f government funds does not violate the Constitution. The Secretary of Health and Human Services is authorized to prohibit Title X programs from engaging in abortion advocacy and to require that organizations engaged in both Title X programs and abortion-related programs segregate the two. Such requirements do not violate the Constitution. 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/23966/download.

  7/30/1987

• 7/24/1987

  Proposed Legislation to Establish the National Indian Gaming Commission

  A bill that proposes to create an "independent commission" within the Department of the Interior to regulate gambling on Indian reservations and that would give the commission the power, inter alia, to impose civil fines, gives rise to several constitutional issues. The extent to which Congress may restrict the removal of subordinate executive officers such as the members of the Indian Gaming Commission is unclear, but such restrictions should be avoided. Furthermore, consistent with the Appointments Clause, the authority to waive a federal statute should be subject to the approval of a principal officer, such as the Secretary of the Interior. Under the Due Process Clause, civil penalties imposed by members of the Indian Gaming Commission should be imposed by an unbiased administrative judge rather than an interested official. Under the Fourth Amendment, the Indian Gaming Commission may conduct warrantless searches of gambling establishments, which are part of a closely regulated industry, only if: (1) there is a substantial government interest; (2) the searches are necessary to further the regulatory scheme; and (3) the statute provides a constitutionally adequate substitute for a warrant. The first and second requirements are met in this case. The third requirement may be met by providing notice in the statute that inspections will be made on a regular basis and will have a particular scope. 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/23961/download.

  7/24/1987