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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Cabinet Council on\nLegal Policy (1 of 3)\nBox: 6\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nWASHINGTON\nAUG\n1983\nCABINET AFFAIRS STAFFING MEMORANDUM\nDATE:\n8/1/83\nNUMBER: 118835CA\nDUE BY:\nSUBJECT:\nCabinet Council on Legal Policy - August 2. 1983\n2:00 pm in the Cabinet Room - With the President\nACTION FYI\nACTION FYI\nALL CABINET MEMBERS\nBaker\nDeaver\nVice President\nState\nClark\nTreasury\nDarman (For WH Staffing)\nDefense\nAttorney General\nHarper\nInterior\nJenkins\nAgriculture\nFielding\nCommerce\nLabor\nHHS\nHUD\nTransportation\nEnergy\nEducation\nCounsellor\nOMB\nCIA\nUN\nCCCT/Gunn\nUSTR\nCCEA/Porter\nCCFA/Boggs\nCEA\nCCHR/Carleson\nCEQ\nOSTP\nCCLP/Uhlmann\nCCMA/Bledsoe\nCCNRE/Boggs\nREMARKS: The Cabinet Council on Legal Policy will meet on Tuesday,\nAugust 2, 1983 at 2:00 pm for thirty minutes in the Cabinet\nRoom. There are four items on the agenda, and the briefing\npapers and agenda are attached. Briefings will be presented\non the following issues: Victims of Crime (CM#395) ; Anti-Crime\nInitiatives (CM#245) ; Sharing of Grand Jury Information (CM#397) ;\nand Legislative Veto (CM#395). .\nRETURN TO:\nCraig L. Fuller\nTom Gibson\nAssistant to the President\nAssociate Director\nfor Cabinet Affairs\nCabinet Affairs\n456-2823\n456-2800\nPRO MENT DOMTH A JUSTITIA OF\nOffice of the Attorney General\nWashington, B. C. 20530\n*\n43\nJuly 29, 1983\nMEMORANDUM FOR:\nMembers of the Cabinet Council\non Legal Policy\nFROM:\nWilliam French Smi\nthats\nAttorney General\nSUBJECT:\nLegislation to Assist Victims of Crime\nAll too often, discussions of our national crime problem\nfocus upon statistics relating to courts, prosecutors, and inves-\ntigators, to the total exclusion of the impact of crime upon the\npeople who are its victims. Regrettably, our legal system has\nneglected the financial, emotional, and physical impact which a\ncriminal offense can have upon the victim.- Victims of crime\nfrequently are terrorized and sometimes injured. They turn to\nthe legal system for help and justice, but often find neither.\nIn recognition of the growing concern over the needs of\ncrime victims, President Reagan established a Task Force on\nVictims of Crime on April 23, 1982. During 1982, the Task Force\nheld hearings in Washington and in five cities across the coun-\ntry. This past December the Task Force made 68 recommendations\nto the President setting out a plan for a comprehensive and\ndetailed response to the problem of victims assistance by the\nfederal government, state and local governments, and the private\nsector.\nVictim Compensation Programs\nOne of the Task Force's major recommendations for federal\naction was enactment of legislation that would provide funds to\nthe states to assist them to compensate and provide other assis-\ntance to victims of crime. Already, thirty-five states (and the\nDistrict of Columbia and the Virgin Islands) have enacted legis-\nlation providing for compensation of victims of violent crime\nunder certain circumstances. These payments are made to claim-\nants from funds the states have established for this purpose;\nhowever, approximately half of these states have already found\nthese funds insufficient to meet outstanding eligibility claims.\nBecause of the shortfalls state governments have encountered\nin administering their victims compensation funds, the Task Force\nrecommended direct federal assistance to states in this area.\n2\nUnless adequate funds are available, victims' claims may have to\nwait months until sufficient fines have been collected or until a\nnew fiscal year begins and the budgetary fund is replenished.\nHowever, while waiting for such funding victims may be sued\ncivilly, harrassed continually, or see their credit rating\nvanish. Moreover, unencumbered emergency assistance is also\ncritical to victims of violence in other ways. Immediate needs\nfor food, shelter, and medical assistance cannot be deferred for\nthe weeks or months it may take to process paper work.\nFederal assistance to states also is needed because states\nshoulder the burden of compensating victims of federal, as well\nas state, crimes. Currently, states which have compensation pro-\ngrams make no distinction between victims of federal and state\ncrimes. However, if their compensation programs continue to\nexperience budgetary shortfalls, states soon may have no choice\nbut stop compensating victims of federal crimes. Without federal\nfinancial assistance to state compensation programs, therefore,\nfederal crime victims may receive no compensation in some states,\nor receive compensation in others only when the state elects to\nprosecute a crime over which there is joint federal and state\njurisdiction.\nDirect federal assistance to states is preferable to other\nalternative solutions to replenish the states' compensation\nfunds. The chief alternative that would assure compensation to\nvictims of federal crimes would be the creation of a new federal\nbureaucracy to provide such assistance directly. However, this\napproach is likely to be unnecessarily duplicative and\ncost-ineffective. The Task Force rejected this cumbersome\napproach, favoring instead an approach which would utilize\nexisting state compensation schemes.\nProposed Legislation\nThe Department of Justice is currently drafting legislation\nto provide timely assistance for crime victims. The draft\nlegislation would create a Crime Victims Assistance Fund to\nassist states in compensating victims of violent crime both\nfinancially (e.g., for unreimbursed medical expenses and loss of\nwages) and with specialized services (such as crisis\nintervention and mental health counselling). A goal of the\nlegislation would be to provide federal assistance to the states\nwithout unduly interjecting the federal government into the\nworking relationships now existing between the states, victim\nservice organizations, and victims. However, the legislation\nwill not call for any additional appropriations; instead, the\nCrime Victims Assistance Fund will be supported by levies on\ncriminals, revenues already deposited in the Treasury, and other\nnon-appropriated sources of money.\nIn particular, the possible funding sources include:\n- 3 -\n-- penalty assessment fees and fines collected from\nconvicted federal defendants;\n--- portions of monies paid to working federal inmates\nparolees and probationers;\n--\na percentage of assets seized by the government in\nforfeiture proceedings;\n--\nprofits offenders realize from the sale of\nliterary or other rights arising from a criminal\nact; and\n--\ncontributions from the general public (except\nconvicted or incarcerated federal criminals).\nIn addition, another source of funding would be the revenues\nthe government already receives from the federal excise tax\ncurrently imposed on the sale of handguns, which is presently\nearmarked for a wildlife management fund administered by the\nDepartment of the Interior. Although these revenues are already\nbeing put to good use, they are another conceivable source of\nfunds for the proposed Victims Assistance Fund.\nMENT OF\nOffice of the Attorney General\nPAID\nWashington, D. C. 20530\nPOLICY\nJUSTITIA\n43\nJuly 29, 1983\nMEMORANDUM FOR:\nMembers of the Cabinet Council\non Legal Policy\nFROM:\nWilliam French Smith\nAttorney General\nafterts\nSUBJECT:\nBriefing on the Administration Crime Bill\nIn the course of the past two weeks the Senate Judiciary\nCommittee has approved almost all of the proposals in the Admini-\nstration's comprehensive crime package (S. 829). 1/ In addition\nto re-approving important reforms that have previously enjoyed\ngeneral support in the Senate, such as revision of the bail and\nsentencing systems, the Committee has adopted the more contro-\nversial features of our program. These include, for example,\nrestoration of capital punishment, recognizing a \"good faith\"\nexception to the exclusionary rule, and limiting the insanity\ndefense.\nBy agreement of the Committee, the bill has largely\nbeen preserved intact, but four of the controversial proposals --\ncapital punishment, exclusionary rule reform, habeas corpus\nreform, and Federal Tort Claims Act (FTCA) amendments -- have\nbeen deleted from the comprehensive bill and are being considered\nas four pieces of separate legislation. The separate capital\npunishment, exclusionary rule, and habeas corpus bills have been\nvoted out by the Committee; the FTCA amendments will be con-\nsidered shortly. As part of the Committee's agreement these\nbills will receive floor consideration by the Senate at around\nthe same time as the comprehensive bill but will be voted on as\nseparate measures. Unfortunately, the agreement contemplates\nthat a bill introduced by Senator Biden incorporating the \"drug\nczar\" proposal that was vetoed last year will also be brought to\nthe floor at that time.\n1/ The Committee has not yet considered the amendments to the\nFederal Tort Claims Act proposed in Title XIII of the bill.\nAll other titles have been acted on favorably either as part\nof the comprehensive bill voted out by the Committee or as\nseparate legislation.\n- 2 -\nThe general effect of the Committee's agreement is\ntwofold; first, the controversial proposals which are being\ntreated separately will not impede full Senate approval of the\ngeneral package, and secondly, the procedure will provide for\nSenate floor consideration of each of the controversial proposals.\nOf course this also means that these separate measures will not\nbe \"carried\" as part of a larger bill and will have to pass the\nSenate on their own appeal. 2/\nThe specific measures which are included in our crime\npackage and have been approved by the Committee include the\nfollowing:\n1. Bail Reform\nUnder current law, a judge in setting pre-trial release\nconditions is authorized to consider the risk that the defendant\nwill not appear for trial, but is not authorized to consider the\ndanger to the community that may result from a favorable release\ndecision. Hence, when confronted with a demonstrably dangerous\ndefendant, a judge faces the dilemma of releasing him prior to\ntrial despite the danger he poses to public safety, or attempting\nto find some justification -- such as risk of flight -- to\njustify a high money bail the defendant cannot meet. Judges\nthus often find it necessary to choose between protecting public\nsafety or endangering the community by applying the law as\npresently written.\nTitle I of S. 829 would correct this situation by\nauthorizing consideration of a defendant's dangerousness in\nmaking pre-trial release decisions and authorizing pre-trial\ndetention where no combination of release conditions can rea-\nsonably assure the safety of the public and prevention of flight.\nTitle I would also change the rules governing release\nof convicted defendants while an appeal is pending. Current law\ncreates a presumption in favor of release on bail after con-\nviction and pending appeal, as if a person were presumed to be\ninnocent even after he has been found to be guilty. The Admini-\nstration's proposals would reverse this presumption, limiting\npost-trial release to cases where the defendant can show that he\nwill not flee or endanger the community and that his conviction\nis likely to be overturned on appeal.\n2/ References hereafter to \"the bill\" or \"S. 829\" are to the\noriginal version of S. 829, incorporating our full legis-\nlative crime program. As the accompanying text explains, a\nfew of the titles of the original bill are now proceeding as\nseparate legislation.\n- 3 -\n2.\nSentencing Reform\nThe second title of the crime bill would carry out a\ncomprehensive revision of the sentencing system. Under current\nlaw, individual judges are provided with enormous discretion in\nthe imposition of sentences. A statute may provide, for example,\nthat a person convicted of a given offense may be sentenced to\nlife imprisonment, to imprisonment for any number of years, or to\nno imprisonment at all, with the choice between these options\nbeing entirely left to the discretion of the sentencing judge.\nEmpirical study of current sentencing practices shows that this\nsystem has resulted in great disparities in the treatment of\nsimilarly situated defendants based on differences in the personal\nphilosophies of individual judges.\nTitle II of the bill would replace the current system\nwith a system of guided discretion. A sentencing commission\nwould issue guidelines establishing narrow penalty ranges for\neach combination of offense and offender characteristics, and the\nsentences actually imposed would normally be within these ranges.\nIf a judge imposed a sentence outside of the guideline range he\nwould have to state specific reasons for doing so and the re-\nsulting sentence could be appealed by the adversely affected\nparty.\nA second major reform of Title II is the abolition of\nparole. Currently, prisoners are normally released after serving\nsome part of the sentence imposed at trial through the action of\nparole boards. This system is based on the now-discredited\nnotion that imprisonment is a therapeutic measure and that it can\nbe determined by observing a prisoner's behavior that at some\npoint he has been \"rehabilitated\" and can safely be released.\nUnder the Administration's proposals a prisoner would serve the\nactual sentence imposed on him at trial less a small reduction\nfor good behavior in prison.\n3. Limiting Impediments To Successful Law Enforcement\nThe Administration's proposals include reforms that\nwould limit certain rules that may now perversely protect the\nguilty or increase the difficulty of successfully prosecuting\noffenders. The specific proposals in this category are limi-\ntation of the exclusionary rule, the insanity defense, and habeas\ncorpus. 3/\n3/ As noted earlier, two of these proposals -- exclusionary\nrule reform and habeas corpus reform -- have been deleted\nfrom the comprehensive bill by the Committee but have been\napproved by the Committee as separate bills.\n- 4 -\nUnder current law, evidence that was obtained by an\nunlawful search and seizure is excluded from use at trial. Title\nIII of the bill would substitute a more moderate rule under which\nevidence would not be excluded if it was obtained by a search or\nseizure which the officer reasonably believed to be lawful. The\nsame change has already been made at the federal level in some\nparts of the country by judicial decision and has been adopted in\na number of states by statute.\nTitle V of the bill would limit the insanity defense to\ncases in which a defendant was unable to appreciate the nature or\nwrongfulness of his actions and would require the defendant to\nestablish insanity in this sense by clear and convincing evidence.\nThis would change current rules under which the alleged inability\nof a defendant to control his actions may establish the defense\nand under which the government must establish a defendant's\nsanity beyond a reasonable doubt to obtain a conviction.\nTitle VI would limit the availability of federal\ncollateral remedies for state and federal prisoners, including\nhabeas corpus. This would provide a partial corrective to the\ncurrent inundation of the federal courts with frivolous and\nharassing prisoner petitions and would limit the drain on state\nand federal criminal justice resources that results from this\nlitigation.\n4. Strengthening Remedies and Sanctions\nThe Administration's proposals include several measures\nthat would strengthen the basic tools of law enforcement. Title\nIV of the bill would strengthen criminal and civil forfeiture\nlaws, enhancing our ability to seize the proceeds of crime and to\nreach the operating capital of criminal enterprises. Title X\nwould reinstate the death penalty in certain homicide, treason\nand espionage cases. 4/ Various other titles of the bill would\nincrease the penalties applicable to a wide range of offenses,\nincluding narcotics offenses, labor racketeering, and currency\nviolations. Titles XIV and XV would create new federal offenses\nor strengthen or extend existing criminal prohibitions in such\nareas as murder-for-hire, crimes in aid of racketeering, use of\nfirearms in the course of federal crimes, crimes against federal\nofficials, product tampering, 5/ child pornography, fraud and\n/ As noted earlier, capital punishment has been removed from\nthe comprehensive bill by the Committee but has been voted\nout as a separate bill.\nProduct tampering has been deleted from the comprehensive\nbill by the Committee because it is near enactment at this\npoint as separate legislation.\n- 5 -\nbribery related to federal programs and counterfeiting of secu-\nrities.\n5.\nState And Local Justice Assistance\nTwo titles of the bill would lend federal support to\nstate and local criminal justice efforts. Title VIII would\nauthorize a modest program of financial assistance to state and\nlocal law enforcement to help finance anticrime programs of\nproven effectiveness. Title IX would facilitate donation of\nsurplus federal property to state and local governments for\nurgently needed prison space.\n* * *\nThe most basic obligation of government is the protection\nof the personal security of its citizens. The priority we have\nassigned to this function in the international context in our\nnational security program finds its parallel domestically in our\nprogram of law enforcement and criminal justice reform. The\nSenate Judiciary Committee's approval of nearly all of the\nprovisions of the Administration's legislative crime program is a\nmajor victory in our effort to provide for the domestic defense\nof the nation against the lawless elements of society. There\nremains ahead floor consideration by the full Senate and the\ndifficult task of securing action on our proposals in the House\nof Representatives. I wish to thank all of you for the support\nand assistance you have provided and to solicit your continued\ncooperation in the work that lies ahead.\nOF SECTITUR\nOffice of the Attorney General\nPRO\nWashington, D. C. 20530\nDOMINA\nJUSTITIA\n23\nJuly 29, 1983\nMEMORANDUM FOR:\nMembers of the Cabinet Council\non Legal Policy\nFROM:\nWilliam French\nlots\nAttorney General\nSUBJECT:\nSharing of Grand Jury Information\nOn June 30, 1983, the Supreme Court decided two cases\nthat significantly limit the extent to which federal prosecutors\nmay share grand jury materials with civil attorneys within the\nDepartment of Justice and with attorneys in other government\nagencies. These decisions, United States V. Sells Engineering,\nInc., No. 81-1032, and United States V. Baggot, No. 81-1938,\nraise serious law enforcement problems for the Department of\nJustice and all other federal agencies.\nA.\nSells Engineering\nThe central issue in Sells was whether attorneys in the\nCivil Division of the Department of Justice could obtain auto-\nmatic disclosure of grand jury materials for use in a civil suit\nor whether they were required to obtain a court order. The\nSupreme Court held that Department of Justice civil attorneys\nmust obtain a court order authorizing the disclosure of such\nmaterials. Under the federal courts' criminal rules, such an\norder may be granted only upon a showing of particularized need\n-- that is, that the materials are needed to avoid a possible\ninjustice in another proceeding, that the need for disclosure is\ngreater than the need for continued secrecy, and that the request\nonly covers the materials needed. This standard is ordinarly\ndifficult to meet.\nB.\nUnited States V. Baggot\nIn Baggot, the Supreme Court held that the disclosure\nof grand jury materials to an administrative agency pursuant to a\ncourt order is permissible only \"[i]f the primary purpose of the\ndisclosure is\nto assist in preparation or conduct of a\njudicial proceeding.\" Therefore, if the purpose of the disclo-\nsure is simply to determine liability, as in a tax audit, or to\nconduct a mere investigation as to whether a violation of law has\noccurred, disclosure would not be authorized.\nC. The Effect of Sells and Baggot\nThe Sells and Baggot decisions raise, but do not\naddress, many profound problems for the government as a whole,\nand for the Department of Justice in particular. On their face,\nSells and Baggot may be read to preclude not only the sharing of\ngrand jury information between the Department of Justice and\nother agencies for investigative and civil purposes, but also the\nsharing of such information between attorneys in the same office\nunless there is a court order authorizing such information. In\nfact, it is possible to argue that Sells and Baggot may prevent\nan attorney who participates in a grand jury investigation from\nusing even his own knowledge of the grand jury proceedings in a\nsubsequent civil case to which he may be assigned -- even if the\ncivil case is premised on the identical set of facts.\nIf, in subsequent litigation, these issues are resolved\nagainst the government, the government's civil law enforcement\nefforts could be seriously impaired. Moreover, it may cost the\ngovernment many millions of dollars in additional costs for\nattorneys and investigators and in foregone damage claims. For\nexample, the Antitrust Division in the Department of Justice\nestimates that efforts to obtain information already derived from\ngrand jury proceedings through civil discovery would cost an\nadditional $8.7 million for cases brought or contemplated since\nJanuary 1, 1981, involving government damage claims of over $25\nmillion. Similarly, the Commercial Litigation Branch of the\nCivil Division estimates that the lack of access to grand jury\nmaterials would result in additional litigation costs of $1\nmillion per year. Furthermore, civil fraud recoveries, which now\ntotal $30 million per year, would be substantially reduced.\nThe Supreme Court decisions may also jeopardize law\nenforcement operations in other ways. Department of Justice\nattorneys often rely on the assistance of personnel and the\nresources of other agencies. For example, the IRS contributes\nsignificant resources to assist Department attorneys in grand\njury proceedings and complex criminal investigations requiring a\ncareful analysis of thousands of evidentiary items. Because\nBaggot precludes agencies such as the IRS from using materials\nuncovered in grand jury proceedings to investigate other possible\nviolations of law, agency officials may be reluctant to continue\nto assist the Department.\nD.\nRecommendation\nThe Department of Justice is carefully analyzing the\npractical effect of Sells and Baggot on the government. However,\nuntil the Department has completed this study, it is important\nthat other departments and agencies -- some of whom have\nindependent litigating authority -- do not take litigating\npositions that may preclude the Department's ability to obtain\nfavorable readings of Sells and Baggot in the courts.\nAccordingly, every department and agency should clear in advance\nwith the Department the positions they intend to take in\nlitigation.\nTRO DOMINA JUSTITA OF\nOffice of the Attorney General\nWashington, B. C. 20530\n*\n41\nJuly 29, 1983\nMEMORANDUM FOR:\nMembers of the Cabinet Council\non Legal Policy\nFROM:\nWilliam French Sm/\nAttorney General\nlots\nSUBJECT:\nRegulatory Reform and Legislative Veto\nOn June 23, 1983, the Supreme Court issued its decision in\nINS V. Chadha, striking down as unconstitutional the legislative\nveto provision found in the Immigration and Nationality Act.\nNotwithstanding the narrow issue presented, Chief Justice\nBurger's opinion for the Court was written broadly, striking down\nthe legislative veto concept across the board as an infringement\nof the President's power to control the actions of the Executive\nBranch and to participate (by approving or vetoing) actions of\nCongress that affect the legal rights or duties of Executive\nBranch officials or private persons.\nSince the Supreme Court's decision in Chadha, the Department\nof Justice has been working closely with other Executive agencies\n(particularly the Counsel to the President, the Office of Manage-\nment and Budget, and the State and Defense Departments) to ensure\nan appropriate and measured response to that decision. (See the\nattached memorandum for a fuller discussion.) The executive\nbranch has been careful to avoid providing any excuse for ill-\nconsidered congressional reaction to the Chadha decision. In\naddition, the government has stressed the importance of defend-\ning, both before Congress and in court, the validity of the\nremaining provisions of statutes that contained legislative veto\nprovisions.\nWe have been fortunate that the reaction in Congress to\nChadha has been a responsible one. While some members of Congress\nhave indicated their desire to institute radical new forms of\ncongressional review of executive action, most members appear\ninclined to defer major action until Congress and the executive\nbranch have had more experience with congressional review in the\nabsence of the legislative veto mechanism. Thus, while Congress\nmay well ultimately enact some new form of oversight mechanism,\nit appears in the short term that Congress will do nothing,\nunless it appears that the executive branch is attempting a broad\nreading of Chadha. A group under the leadership of the Cabinet\nCouncil on Legal Policy will be established to examine these long\nrange considerations.\nBecause Chadha invalidated one of the most common mechanisms\nfor congressional review of administrative action, the future of\nregulatory reform proposals in the aftermath of Chadha is some-\nwhat uncertain. Nonetheless, it may be appropriate now that\nChadha has resolved the question of the constitutionality of the\nlegislative veto to give greater attention to substantially\ndifferent forms of regulatory reform legislation than the\ncomprehensive regulatory reform package (which contained a\nsweeping legislative veto provision) that was before Congress\nlast year. In particular, the Administration might wish to give\nconsideration to various \"fast track\" regulatory reform proposals\nthat would reform the House and Senate rules to insure expedited\nconsideration of legislative initiatives that the President\ndesignates as important to achieve policies of deregulation.\nThe President's Task Force on Regulatory Relief has been\nconsidering one such proposal. The draft legislation would\nauthorize the President to submit to Congress \"such reports as he\ndeems appropriate\" dealing with matters of regulatory reform,\nincluding regulatory programs he believes should be modified or\nrepealed. Congressional action on such reports and any proposed\nlegislation contained therein would be expedited in a number of\nways under the proposal. For instance, each committee consider-\ning a report submitted by the President would have a limited\namount of time in which to act upon the report, or be discharged\nfrom further consideration of it. Also, once a bill implementing\nany report had been placed on the calendar of the House of\nRepresentatives or the Senate, it would be in order to move to\nproceed to consider such a bill, and such motion \"shall be highly\nprivileged and shall not be debatable.\" In a number of other\nways, the rules of the House and Senate would be amended to\nrequire expedited consideration of a bill implementing a Presi-\ndential report on regulatory reform. The ultimate aim would be\nto prevent such a bill from simply dying in Congress as a result\nof inertia or inaction.\nU.S. Department of Justice\nOffice of Legal Counsel\nOffice of the\nWashington, D.C. 20530\nAssistant Attorney General\nM 28 1983\nMEMORANDUM FOR THE CABINET COUNCIL ON LEGAL POLICY\nRE: ANALYSIS OF SUPREME COURT LEGISLATIVE VETO DECISIONS\nThis memorandum presents a summary analysis of the\nrecent Supreme Court decisions regarding legislative vetoes\nand their potential impact on existing statutes and other\nsources of presidential authority.\n1. Legislative Vetoes\nLegislative vetoes are provisions pursuant to which\nCongress, or a unit of Congress, is purportedly authorized to\nadopt a resolution that will impose on the Executive Branch\n(or the \"independent\" agencies) a specific requirement to\ntake or refrain from taking an action. The key characteristic\nof all legislative veto provisions is that a resolution pur-\nsuant to such a provision is not presented to the President\nfor his approval or veto.\nLegislative vetoes first surfaced approximately\nfifty years ago, but in the past ten to fifteen years the\ntrickle became a torrent. Every President since Hoover has\nopposed legislative vetoes on either policy or constitutional\ngrounds or both, with the intensity of their opposition tending\nto increase in direct proportion to the length of their\nexperience with them as Chief Executive.\n2.\nThe Supreme Court Decisions\nChadha involved a veto by the House of Representatives\nin 1975 of the Attorney General's statutory decision to suspend,\non humanitarian grounds, the deportation of an alien who was\notherwise deportable. The Supreme Court decided Chadha on\nJune 23, 1983. The Chief Justice wrote the Court's opinion.\nJustice White dissented on the merits. Justice Rehnquist\ndissented on the grounds of severability (discussed infra).\n3. Public and Legislative Branch Reaction\nMost journalists and commentators initially portrayed\nthese decisions as major and unmitigated \"victories\" for the\npresidency. Commentators from the Congress did not disagree\nregarding the Court's death knell for legislative vetoes, but\nsome commented that power heretofore so generously delegated\nto the Executive and independent agencies would be sharply\nnarrowed and authority previously enjoyed by the President\nwould be withdrawn.\nSome proposals were introduced in the House of\nRepresentatives to reduce the power of the Consumer Product\nSafety Commission (CPSC) in the aftermath of Chadha by requiring\naffirmative congressional approval of all rules issued by the\nCPSC by a law before such rules could take effect. However,\nunless the Executive Branch provokes a confrontation with the\nLegislature through ill-considered and highly controversial\nactions or statements, congressional reaction on a broad gauge,\ni.e., to withdraw legislatively all delegated authority to\nwhich a legislative veto is attached, is not likely to develop\nwidespread support. A sweeping and somewhat radical proposal\nwas actually advanced by Mr. Stanley Brand, General Counsel\nto the Clerk of the House of Representatives, in his testimony\nbefore the House Committee on Foreign Affairs on June 19, 1983.\nHis proposal met with a very icy reception by Chairman Zablocki\nand did not appear to receive any support from other members\nof that Committee. In addition, Deputy Attorney General\nSchmults testified before the Subcommittee on Administrative\nLaw and Governmental Relations of the House Committee on the\nJudiciary on July 18 and the House Committee on Foreign\nAffairs on June 20 (accompanied by Deputy Secretary of State\nDam), and the overall reaction of those committees appeared to\nbe a go-slow, cooperative one. Mr. Dam will testify before\nthe Senate Committee on Foreign Relations on July 29 once again\non the import of Chadha in the foreign relations area.\n4. Legislation and Presidential Authority Affected\nThe Office of Legal Counsel has determined that 126\npublic laws containing 207 separate legislative veto devices will\nbe affected by Chadha.\n- 4 -\nSome of the most significant and/or controversial\nprovisions are:\n1. War Powers Resolution, 50 U.S.C. § 1544 (removal\nof armed forces engaged in foreign hostilities may be required\nby concurrent resolution);\n2. International Security Assistance and Arms\nControl Act, 22 U.S.C. $ 2776 (b) (concurrent resolution may\nhalt certain proposed arms sales);\n3. National Emergencies Act, 50 U.S.C. § 1622\n(concurrent resolution may terminate declaration of national\nemergency under International Emergency Economic Powers Act\n[IEEPA - used in Iran situation]\n4.\nInternational Security Assistance Act of 1977,\n22 U.S.C. $ 2753(d) (2) (Supp III 1979) (concurrent resolution\ndisapproving defense equipment transfers);\n5. Nuclear Non-Proliferation Act of 1978, 42 U.S.C.\n§§ 2160(f), 2155(b), 2157(b), 2153 (d) (Supp III 1979)\n(disapproval by concurrent resolution of exports of nuclear\nmaterial and technology);\n6. Congressional Budget and Impoundment Control\nAct of 1974, 31 U.S.C. § 1403 (one House veto of spending\ndeferrals) ;\n7. Trade Act provisions. Various provisions\nregarding duties, quotas, waivers (concurrent disapproval\nprovisions);\n8. Energy provisions. Various provisions granting\npresidential emergency powers (one- or two-House disapproval\nprovisions) ;\n9. Federal Election Campaign Act Amendments of\n1979, 2 U.S.C. § 438 (d) (2) (Supp III 1979) (one House veto of\nFederal Election Commission rules);\n10. Various Reorganization Acts;\n11. Federal Pay Comparability Act;\n- 5 -\n12. District of Columbia legislation;\n13. Interior Department actions such as off-shore\nleasing and wilderness designations.\n5. Severability\nIn Chadha, the Chief Justice's opinion appears to have\nadopted a very strong presumption that legislative veto devices\nwill be stricken by the courts while leaving intact the remainder\nof the statutory schemes in which these devices were inserted\nby Congress. That strong presumption was reinforced by the\nCourt's summary affirmance on July 6 of the D.C. Circuit's\ndecision in the natural gas phase II pricing rule case, CECA V.\nFERC, 673 F.2d 425 (D.C. Cir. 1982). The statute involved in\nFERC, in contrast to the statute involved in Chadha, did not\ncontain a \"severability clause,\" and its legislative history\npermitted the House and Senate and a number of intervenors to\nargue that the legislative veto device was inseverable. As\nDeputy Attorney General Schmults stated in his testimony on\nJuly 18 regarding the significance of the Court's summary\naffirmance in FERC, \"if the Court had wanted to reverse the\napparent trend toward 'severability' in the recent cases decided\nby the D.C. Circuit, it presumably would have used that case as\na vehicle to do so.\"\nIn Congress, the attitude on the severability issue,\nat least so far, seems to be one of acceptance of the high\nlikelihood that very few, if any, grants of power to the\nExecutive will be held to fall with the legislative veto\ndevices attached to them. Mr. Brand, in his testimony before\nHouse Foreign Affairs, stated his view that \"absent an over-\nwhelming record to support [inseverability], I believe the\ncourts will find severability in many cases.\" The conclusion\nthat Mr. Brand drew from this reality -- \"that Congress is\nbetter served by wholesale repeal of the delegations effected\nby these statutes\" -- was not well received by the House Foreign\nAffairs Committee.\nIn court, the Department of Justice is presently\npreparing to argue the severability of legislative veto devices\nin litigation ranging from an attempt by the Exxon Corp. to\nhave set aside a $1.6 billion judgment entered against it in\nJune, 1983, to a suit brought by federal employee unions arguing\nthat the President's power to place in effect an \"alternative\"\n- 6 -\npay plan is inseverable from the one-House veto device attached\nto that presidential power and seeking substantial back pay\nbased on that argument. All this litigation is being coordinated\nand supervised by the Civil Division of the Department of Justice.\n6. Retroactivity\nSome litigation may arise over the validity of past\nagency actions pursuant to authorities or power which are\narguably void because inseverably connected with legislative\nvetoes. For example, Merrill Lynch is currently arguing that\nthe EEOC's enforcement action against them cannot be maintained\nbecause the EEOC acquired its enforcement power pursuant to a\nreorganization plan that was issued under a statute containing\nan inseverable one-House veto device. These issues will have\nto be evaluated as they arise, but it is not likely that the\ncourts will overturn whole regulatory schemes or administrative\nactions which have created vested rights.\n7. Report and Wait Provisions\nThe Chadha decision stands for the proposition\ngenerally that statutes which require actions to be reported\nto Congress and remain in suspension for a certain period to\nallow a legislative response will be upheld. We have assured\nCongress in testimony discussed above that the Executive will\nscrupulously observe such requirements. However, unless\nCongress acts through substantive legislation, most actions\nwill become effective at the end of the waiting period.\n8.\nOther Developments\nThe Office of Management and Budget has circulated\nin draft form and expects to issue in the very near future a\nbulletin designed to ensure close coordination of all Executive\nBranch actions to be taken pursuant to statutes containing\nlegislative veto devices. The information gathered in that\nprocess, as well as that maintained by the Civil Division\nregarding litigation, should keep us fully abreast of important\ndevelopments.\nA working group of White House, OMB, Justice, State\nand Defense officials has monitored developments within and\nwithout the Administration since the Chadha decision and has\nmade recommendations where appropriate.\n- 7 -\nOKJC3\nA long range planning group will be organized under\nthe Cabinet Council on Legal Policy to consider long term\nresponses to Chadha including reexamination of the role of\n\"independent\" agencies, the delegation doctrine pursuant to\nwhich rule-making authority is transferred to agencies, and\nproposals for \"fast-track\" legislative review of administrative\nactions and authorities.\nSheodonBlar Theodore B. Olson\nAssistant Attorney General\nOffice of Legal Counsel\n- 8 -\nTHE WHITE HOUSE\nWASHINGTON\nOctober 14, 1983\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\n83R\nSUBJECT:\nCabinet Council on Legal Policy Planning\nSession - Friday, October 14 - 3:00 p.m.\nin the Roosevelt Room\nIn the attached memorandum to Craig Fuller, the Deputy\nAttorney General concludes that it is almost inevitable that\n\"drug tsar\" legislation will clear both Houses of Congress\nby overwhelming margins. Schmults asks for authorization to\napproach Senators Thurmond and Biden to negotiate a version\nof such legislation the Administration would support.\nSchmults describes his desired approach as \"a Drug Policy\nand Operations Board chaired by the Attorney General and\nmade up of members of the Cabinet Council on Legal Policy.\"\nI am in no position to assess Schmults' views on the\ninevitability of passage of drug tsar proposals, but I would\ninsist on a conclusive determination that we have no choice\nin the matter before switching positions. Last year,\nlargely at the Justice Department's urging, the President\nvetoed an otherwise desirable bill because it contained a\n\"drug tsar\" provision, and sustained considerable political\ndamage in doing SO. At the Cabinet Council meeting you\nshould insist on greater specificity from Schmults as to\nexactly what type of bill he has in mind. At present he is\nsimply asking for a blank check to support a bill that would\nincrease the powers of his department vis-a-vis the others\ninvolved in the drug war (Treasury, Transportation, Carlton\nTurner's office, etc.)\nID # 168802 CU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\n0 OUTGOING\nH INTERNAL\nI INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nRichard G. Darman\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject:\nCabinet. Council on Legal Policy\nPlanning Seraion\nFriday October 14 - 3:00 pm in the\nRoosevelt Room\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nWHolland\nORIGINATOR 83/10/13\n11\nReferral Note:\nWATO4\nI 83/10/13\n/ /\nReferral Note:\nWATI8\nA 83,10,13\n583110114 83110\nReferral Note:\n10:00 AM\n/ /\n/ /\nReferral Note:\n/ /\n/ I\nI\nReferral Note:\nACTION CODES:\n;\nDISPOSITION CODES:\nA * Appropriate Action\nI - Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC - Comment/Recommendation\nR Direct Reply w/Copy\nB Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nDocument No. 168802CS\nCLOSE HOLD\nWHITE HOUSE STAFFING MEMORANDUM\nDATE: 10/13/83\nACTION/CONCURRENCE/COMMENT DUE BY:\nSUBJECT: CABINET COUNCIL ON LEGAL POLICY PLANNING SESSION\nFRIDAY, OCTOBER 14 - 3:00 P.M. IN THE ROOSEVELT ROOM\nACTION FYI\nACTION FYI\nVICE PRESIDENT\nHERRINGTON\nMEESE\nHICKEY\nBAKER\nJENKINS\nDEAVER\nMcMANUS\nSTOCKMAN\nMURPHY\nCLARK\nROGERS\nDARMAN\nP\nROLLINS\nDUBERSTEIN\nSPEAKES\nFELDSTEIN\nSVAHN\nFIELDING\nVERSTANDIG\nFULLER\nWHITTLESEY\nGERGEN\nREMARKS:\nAGENDA: Drug Tsar Legislation (paper attached)\nCLOSE HOLD\nRESPONSE:\nRichard G. Darman\nAssistant to the President\nExt. 2702\nU.S. Department of Justice\nOffice of the Deputy Attorney General\nThe Deputy Attorney General\nWashington, D.C. 20530\n13 1983\nMEMORANDUM TO: Craig Fuller\nAssistant to the President for\nCabinet Affairs\nFROM: Edward C. Schmults\nDeputy Attorney General\nBase\nRE: \"Drug Tsar\" Legislation: A Proposed\nAdministration Response\nBackground: For more than a year, there have been calls\nin the Congress for creation of a \"drug tsar\" to oversee and\ncoordinate all federal drug enforcement efforts. We have\nconsistently resisted these proposals, first on the Floor of\nthe Senate last year where a Biden \"drug tsar\" amendment to\nthe Violent Crime and Drug Enforcement Improvements Act was\naccepted by a 2-1 margin despite Chairman Thurmond's efforts\non our behalf. During the \"lame-duck\" session of the 97th\nCongress, the \"drug tsar\" proposal was attached to the \"mini-\ncrime bill.\" As you will recall, the Biden bill would have\ncreated a \"super Cabinet-level\" drug tsar with vague and\nsweeping powers to \"direct\" departments and agencies to\ncarry out the policies he establishes including the power to\nreach down into departments and agencies and reassign enforce-\nment personnel. The President disapproved it primarily\nbecause of this \"drug tsar\" provision.\nDespite our continuing opposition to the \"drug tsar\"\nconcept, Senator Biden has succeeded in having his new \"drug\ntsar\" bill (S. 1787) reported by the Senate Judiciary Committee\nby a vote of 12 to 5 (3 of the 5 votes against were proxies\nvoted by Chairman Thurmond; in at least one case the proxy\nwas from a Senator who favors the tsar concept). The Biden\nbill is substantially identical to the \"tsar\" provision of\nthe mini-crime bill pocket vetoed in January.\nOn the House side, Congressman Hughes has had his version\nof a \"drug tsar\" proposal (H.R. 3664) reported by the House\nJudiciary Committee. The Hughes' bill builds upon an\nexisting structure (the White House Drug Abuse Policy Office)\nrather than creating an entirely new structure.\n- 2 -\nSenator Biden will, as part of his agreement with Chairman\nThurmond, be able to bring his bill to the Senate Floor as a\nseparate bill upon completion of Senate consideration of the\nPresident's crime package, possibly within a few weeks.\nCongressman Hughes can be expected to try to get his bill\napproved by the House before the Senate acts on the Biden\nbill.\nPrognosis: House and Senate Floor action on \"drug tsar\"\nlegislation is imminent and the result will almost certainly\nbe overwhelming approval by both bodies. The simplistic\nand superficial appeal of the \"drug tsar\" concept appears\nirresistible. Even if the President was to veto a \"drug\ntsar\" proposal we must recognize that the vote we anticipate\non initial passage would be SO strong as to suggest concern\nabout a veto override. The Administration would suffer from\nthe public's confusion of vetoing a \"crime\" bill.\nMoreover, the Democrat strategy may be to secure\nCongressional approval of a bail, sentencing, forfeiture and\n\"drug tsar\" package leaving the balance of the President's\nanti-crime package to gather dust in the House Judiciary\nCommittee.\nA Revised Biden Bill. Despite the shortcomings of the\nBiden \"drug tsar\" bill, there is reason to believe that Biden\nmay be willing to make a number of changes to accommodate our\nconcerns. In this regard, Biden has held out the intelligence\ncommunity as a model of a coordinated multidepartmental\neffort. We believe his bill can be modified, therefore, to\nmake it more consistent with the organization of the intelli-\ngence community while at the same time bringing it more into\nline with our current cabinet system.\nRecommendation: We recommend that the Department of\nJustice be authorized to approach Senators Thurmond and\nBiden. We believe that a version patterned after the\nDirector of Central Intelligence model can be structured in\nsuch a way as to provide a single witness to appear before\nCongressional committees to testify on anti-drug efforts and\naccommodate certain other concerns without unnecessarily\ninfringing on the important operational programs of the\nseveral departments. In summary, an alternative approach\ncould be to establish a Drug Policy and Operations Board\nchaired by the Attorney General and made up of members of the\nCabinet Council on Legal Policy. Such a board would set\ndrug policy and oversee drug enforcement operations through a\nparticipatory process that respects the powers of Cabinet\nofficers to supervise the internal affairs of their departments.\nTHE WHITE HOUSE\nWASHINGTON\nJanuary 16, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\n826R\nSUBJECT:\nCabinet Council on Legal Policy: Status\nof Administration's Anti-Crime Legislation\nThe status of the Administration's anti-crime legislation\nhas been included on the agenda of today's meeting of the\nCabinet Council on Legal Policy. The attached memorandum\nfrom the Deputy Attorney General focuses on S. 1762, which\nincludes all of the President's anti-crime proposals except\nhabeas corpus reform, exclusionary rule reform, the death\npenalty, and the Tort Claims Act amendments. The bill has\nbeen reported out of the Senate Judiciary Committee and is\nco-sponsored by Senators Thurmond, Laxalt, Biden, and\nKennedy, pursuant to an agreement that the four would resist\nall amendments to the bill. Senator Baker was willing to\nlet S. 1762 reach the floor last year, but only if a time\nagreement could be reached. Senator De Concini would not\nagree to a time agreement that did not allow floor\nconsideration of the death penalty, and death penalty\nopponents would not agree to a time agreement allowing\ndebate on that issue.\nSchmults argues that the best chance for passage of\nsignificant anti-crime legislation is to secure Senate\npassage of S. 1762 (virtually assured if it can be brought\nto a vote) and then use S. 1762 as a vehicle for putting\npressure on the House. If the House refuses to act, at\nleast the blame for failure to secure anti-crime legislation\nwill be squarely placed on the Democrat-controlled House as\nthe election approaches. Putting the ball in the House's\ncourt by fall, however, requires prompt Senate action.\nSchmults recommends that the question be put on the agenda\nof the legislative strategy group, SO the members of that\ngroup can consider what steps to take to urge Senator Baker\nto bring S. 1762 to the Senate floor, a move that will\nprobably require time for debate on the death penalty issue.\nIn sum, there is nothing new to report on the fate of the\nAdministration's anti-crime legislation. Justice has\nincluded it on the agenda in an effort to secure a greater\ncommitment of White House energy and resources to its\npassage.\nAttachment\nID #.\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\n0 OUTGOING\nH INTERNAL\nI INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nEdward C. Schmults\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject:\nCabinet. Conncil on Legal Policy\nStatus of administation's anti-Crime\nlegislation\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nCNHOLL\nORIGINATOR 84,01,13\n/ /\nReferral Note:\nCUAT18\n≤\nD 84/01/13\n5.84,01,16\n10:00 am\nReferral Note:\nWATDY\nA\n84,01,13\n/ /\nReferral Note:\n/ /\n/\n/\n-\nReferral Note:\n/\n/\n/\n/\nI\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA Appropriate Action\nI Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC - Comment/Recommendation\nR. Direct Reply w/Copy\nB - Non-Special Referral\nS Suspended\nD Draft Response\nS. For Signature\nF Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nTHE WHITE HOUSE\nWASHINGTON\nCABINET AFFAIRS STAFFING MEMORANDUM\nDate: 1/13/84\nNumber: 168885CA\nDue By:\nSubject: Cabinet Council on Legal Policy - Monday, January 16, 1984\n2:00 P.M. - Roosevelt Room\nAction\nFYI\nAction\nFYI\nALL CABINET MEMBERS\nCEA\nCEQ\nVice President\nOSTP\nState\nACUS\nTreasury\nDefense\nAttorney General\nInterior\nAgriculture\nBaker\nCommerce\nDeaver\nLabor\nDarman (For WH Staffing)\nHHS\nJenkins\nHUD\nMc Farlane\nTransportation\nSvahn\nEnergy\nFielding\nEducation\nCounsellor\nOMB\nCIA\nUN\nUSTR\nCCCT/Gunn\nCCEA/Porter\nGSA\nCCFA/\nEPA\nCCHR/Simmons\nOPM\nCCLP/Uhlmann\nVA\nCCMA/Bledsoe\nSBA\nCCNRE/\nREMARKS: The Cabinet Council on Legal Policy will meet on Monday, January\n16, 1984 at 2:00 p.m. in the Roosevelt Room.\nThe agenda will include the following items:\n- Legal Equity for Women BAR\n- Immigration Policy - JGR\n- Crime Legislation\n- Bankruptcy Judges sime\nThe briefing papers are attached.\nRETURN TO:\nCraig L. Fuller\nKatherine Anderson\nDon Clarey\nAssistant to the President\nTom Gibson\nLarry Herbolsheimer\nfor Cabinet Affairs\nAssociate Director\n456-2823\nOffice of Cabinet\nOffice of the Deputy Attorney General\nThe Deputy Attorney General\nWashington, D.C. 20530\nJanuary 13, 1984\nMEMORANDUM FOR:\nMembers of the Cabinet Council\non Legal Policy\nFROM: - Edward C. Schmults\nDeputy Attorney Genera\nDI\nSUBJECT:\nStatus of the Administration's Anti-\nCrime Legislation\nEnactment of the President's Comprehensive Crime Control\nAct is most important. Enactment of its provisions will greatly\nincrease the effectiveness of the unprecedented advances we\nhave made through our various law enforcement initiatives over\nthe last three years. Securing Congressional approval of mean-\ningful criminal justice reforms this year is still possible but\nprompt action is required. We must seize the opportunity. It is\nparticularly important that the Senate pass the legislation early\nthis spring, so that we may concentrate our efforts on the House.\nI. Senate\nIn the Senate, the President's 42-point Comprehensive Crime\nControl Act of 1983 (submitted to the Congress on March 16, 1983)\nwas favorably reported by the Senate Committee on the Judiciary\nin July of 1983. Attached is a capsule summary of the President's\nanti-crime package as it emerged from the Senate Judiciary Commit-\ntee.\nThe President's 42-item \"package\" has been reported as\nfour new bills, in order to implement an agreement reached among\nChairman Thurmond and Senators Laxalt, Biden, and Kennedy. In\nsummary, the four Senators agreed to co-sponsor a \"core\" package\n(S. 1762) which includes all of the provisions of the President\nbill except for habeas corpus reform, exclusionary rule reform,\nthe death penalty, and Tort Claims Act amendments. They also\nagreed to stand together against all efforts to amend the \"core\"\nbill. The Committee reported separate bills on habeas, exclu-\nsionary rule, and death penalty. The Tort Claims Act amendments\nwere reported subject to unanimous concurrence on its final\nlanguage between Senators Biden and Grassley and the Department\nof Justice. To date agreement has not been achieved. The agree-\nment between the four Senators also includes a pact to stand in\nopposition to any filibuster or other delaying device which\ncould jeopardize a floor vote on each of the controversial items:\nhabeas corpus reform, exclusionary rule, death penalty, and Federal\nTort Claims. In other words, they have agreed to work together to\nsecure floor votes on each of these items.\nIt must also be noted that at the time the four bills (the\ncore bill, habeas, death penalty, and exclusionary rule) were re-\nported, the committee also reported, as separate bills, Senator\nBiden's \"drug tsar\" bill, and bills on sentencing and forfeiture\nreform. Sentencing and forfeiture are two major titles in the\ncore bill.\nThus, in the Senate the current status of the anti-crime pro-\nposals (plus the \"drug tsar\" proposal) is that the Committee on\nthe Judiciary has reported favorably on the following bills:\n1. S. 1762 - sponsored by Thurmond (14 co-sponsors have been\nadded since introduction), containing 37 of the 42 items\nproposed / by the President (plus four congressionally\ninitiated proposals to which we do not object);\n2. S. 1763 - sponsored by Thurmond (12 co-sponsors have since\nbeen added), habeas corpus reform;\n3. S. 1764 - sponsored by Thurmond (5 co-sponsors have since\nbeen added), reform of the exclusionary rule;\n4. S. 1765 - sponsored by Thurmond (12 co-sponsors have since\nbeen added), which is now the vehicle for the President's\nreinstitution of the death penalty;\n5. S. 668 - sponsored by Kennedy, identical to the sentencing\nreform provision of S. 1762;\n6. S. 948 - sponsored by Biden, identical to our forfeiture\nreform proposals in S. 1762; and\n7. S. 1787 - Senator Biden's \"drug tsar\" proposal.\nDemands by Senator DeConcini that capital punishment be con-\nsidered at the same time as the noncontroversial bill (S. 1762)\nprevented our getting the core measure to the Senate Floor last\nyear. Senator Baker was willing to bring the core bill to the\nfloor, but he insisted that a time agreement be reached. DeConcini\nwould not agree to a time agreement which did not allow floor con-\nsideration of the death penalty, and any agreement allowing such a\ndebate was rejected by opponents of that provision. We believe\n* / One part of the President's crime package, product tampering\n(the \"Tylenol\" bill), has been approved by the Congress as a\nseparate measure, leaving 41 of the original 42 items still pending\nbefore the Congress.\n- 2 -\nthat the core bill, S. 1762, will pass the Senate with an over-\nwhelming majority. We also believe that the other separate bills\nhave enough support to pass, if they can survive procedural\nobstacles which will be attempted by opponents not party to the\nThurmond-Biden-Laralt-Kennedy agreement.\nII. House of Representatives\nIn the House, the President's crime package was introduced as\nH.R. 2151 by Representative Fish and now has 28 co-sponsors. No\naction whatsoever has been taken by the House Judiciary Committee\non H.R. 2151. There has, however, been piecemeal action on some of\nthe issues in the President's package, as follows:\n1. Justice Assistance Legislation -- the Judiciary\nCommittee has reported and the House has approved\nH.R. 2175 (Rep. Hughes) which is a defective ver-\nsion of Title VIII of the President's bill.\n2. Insanity Defense Reform -- the full Judiciary\nCommittee has reported H.R. 3336 (Rep. Conyers)\nwhich is generally consistent with Title V of\nthe President's bill.\n3. Child Pornography -- the House has approved\nH.R. 3635 (Rep. Hughes) which is similar to Title\nXV, Part B of the President's crime bill.\n4. Extradition Reform -- the House Judiciary Committee\nhas reported H.R. 3347 (Rep. Hughes) which is\nsimilar to Title XIV, Part M of the President's\ncrime bill.\n5. Forfeiture Reform - - the Subcommittee on Crime has\nreported H.R. 3299 (Rep. Hughes) which would\naccomplish most of the purposes of Title IV of\nthe President's crime bill, but the Hughes' bill\nmust be considered a weakened version.\n6. Drug Tsar -- the House Judiciary Committee has\nreported H.R. 3664 (Rep. Hughes) to establish a\nfederal drug tsar. Hughes' bill builds upon an\nexisting structure (the White House Drug Abuse\nPolicy Office) rather than creating a new\nstructure as is the case in Biden's bill.\nIn short, the House has only dealt with five of the items\nfound in the President's bill plus the \"drug tsar\". Further, the\nHouse has not acted on the \"big ticket\" items of sentencing or\nbail reform. It should be noted that Chairman Rodino did introduce\na sentencing bill the day the House adjourned. Unfortunately, this\n- 3 -\notherwise positive step by the Chairman is diminished by the lan-\nguage of his version. For example, the Rodino sentencing bill\ndoes not permit Government appeal of excessively lenient sentences,\nit preserves the Parole Commission (which we want to abolish), and\nit does not strengthen criminal fine collection mechanisms.\nIII. Prospects\nIn the Senate, failure to secure Floor action on the core bill\nlast year was a setback. Nevertheless, Senate passage early this\nyear would place us in a good position from which to bring pressure\nto bear on the House to move the comprehensive crime legislation.\nMoreover, Senate leaders (including Biden) have agreed to use all\npossible parliamentary steps to force a House vote on the package,\nprimarily by repeatedly tacking the core crime bill onto House-\npassed bills and sending them back to the House.\nDespite the reluctance of the House Judiciary Committee to act\non the President's crime bill, we believe that the Senate's core\nbill, S. 1762, would have majority support if it reached the House\nFloor. Therefore, our objective must be to get the issues to the\nHouse Floor. Even if attaching the Senate-passed bill to other\nHouse-passed bills falls short of forcing a Floor vote in the\nHouse on the entire package, such efforts may force some House\naction on major crime legislation.\nWe believe that the critical first step is Senate Floor action.\nSuch action would put the entire focus on House inaction. The\npressure of Senate passage should create opportunities in addition\nto enabling the Senate to add the core bill to various House-passed\npieces of legislation. Members of the House will thus be more\namenable to taking some action on significant crime legislation.\nUnlike the Senate, the House (especially the Committee on the\nJudiciary) is almost incapable of processing omnibus bills. How-\never, with Senate action as a forcing device, House Members should\nbecome more willing to process more of the individual elements of\nthe President's bill, even if the bill is not considered as a whole.\nWith enough elements moving in the House we could gain a conference\nwith the Senate from which we might be able to obtain major portions\nof our criminal justice legislative agenda.\nIV. Needed Action\nIn short, the earliest possible Senate action on S. 1762 is\nnecessary if we are to be successful in securing enactment of\nurgently needed crime legislation. Majority Leader Baker must be\nurged to force the crime legislation to the Senate Floor, allowing\ntime to fight out the death penalty issue. We could then get the\ncore package out of the Senate in February. Once that is accom-\nplished, we will -- assuming White House and Administration leader-\nship in an active public education effort -- have a significant\n- 4 -\nprospect of securing true criminal justice legislative reforms\nthis year. We would therefore urge that this entire matter\nbe placed on the agenda of an early meeting of the legislative\nstrategy group in order that the necessary, specific action-forcing\nsteps may be agreed upon.\nAttachment\n- 5 -\nPresident Reagan's Comprehensive Crime Control Act\nof 1983 as Reported by the Senate Judiciary Committee\nS. 1762\nTitle I - Bail Reform would amend the Bail Reform Act of 1966\nto:\n-- permit courts to consider danger to the community in\nsetting bail conditions and to deny bail altogether where\na defendant poses an especially grave danger to others;\n-- tighten the criteria for post-conviction release pending\nsentencing and appeal;\n- - provide for revocation of release and increased penalties\nfor crimes committed while on release; and\n- - increase penalties for bail jumping.\nTitle II - Sentencing Reform would revise the sentencing system\nto:\n- - establish a determinate sentencing system with no parole\nand limited \"good time\" credits;\n-- promote more uniform sentencing by establishing a commis-\nsion to set a narrow sentencing range for each federal\ncriminal offense;\n- - require courts to explain in writing any departure from\nsentencing guidelines; and\n- - authorize defendants to appeal sentences harsher and the\nGovernment to appeal sentences more lenient than the sen-\ntencing commission guidelines.\nTitle III - Forfeiture Reform would strengthen criminal and civil\nförfeiture laws by providing for:\n-- forfeiture of profits and proceeds of organized crime\n(RICO) offenses;\n-- criminal forfeiture in all narcotics trafficking cases;\n-- expanded procedures for \"freezing\" forfeitable property\npending judicial proceedings;\n-- forfeiture of substitute assets where assets originally\nsubject to forfeiture have been removed from the reach of\nthe Government;\n-- forfeiture of land used to grow, store and manufacture\ndangerous drugs; and\n-- expanded use of efficient administrative forfeiture pro-\ncedures in noncontested cases.\nTitle IV - Insanity Defense Reform would narrow the insanity\ndefense currently available in the federal system to:\n-- limit the defense to those who are unable to appreciate\nthe nature or wrongfulness of their acts;\n-- place the burden on the defendant to establish the defense\nby clear and convincing evidence;\n-- prevent expert testimony on the ultimate issue of whether\nthe defendant had a particular mental state or condition;\nand\n-- establish procedures for federal civil commitment of\npersons found not guilty by reason of insanity if no State\nwill commit him.\nTitle V - Drug Enforcement Amendments would:\n-- strengthen federal penalties applicable to narcotics\noffenses;\n-- reduce the regulatory burden on law-abiding manufacturers\nand distributors of legitimate controlled substances; and\n-- strengthen the ability of the Drug Enforcement Adminis-\ntration to prevent diversion of legitimate controlled sub-\nstances to illegal uses.\nTitle VI - Justice Assistance Act would:\n-- authorize a modest program of financial assistance to\nState and local law enforcement to help finance anti-crime\nprograms of proven effectiveness; and\n-- streamline the components of the Department of Justice\nresponsible for statistical, research and other assistance\nto State and local law enforcement.\nTitle VII - Surplus Property Amendments would facilitate donation\nof surplus federal property to State and local governments for\nurgently needed prison space.\n- 2 -\nTitle VIII - Labor Racketeering Amendments would strengthen fed-\neral laws with respect to labor-related racketeering activity by:\n-- raising from five to ten years the period of time that a\ncorrupt official can be debarred from union or trust fund\npositions; and\n-- making debarment effective upon the date of conviction\nrather than the date all appeals are exhausted.\nTitle IX - Foreign Currency Transaction Amendments would improve\nfederal laws designed to prevent international \"money laundering\"\nby:\n-- adding an \"attempt\" provision to existing laws prohibit-\ning transportation of currency out of the United States in\nviolation of reporting requirements;\n-- strengthening penalties for currency violations and\nauthorizing payment of rewards for information leading to\nthe conviction of money launderers; and\n-- clarifying the authority of U. S. Customs agents to\nconduct border searches related to currency offenses.\nTitle X - Miscellaneous Violent Crime Amendments.\nA. Establish federal jurisdiction over murder-for-hire and\ncrimes in aid of racketeering.\nB. Establish federal jurisdiction over solicitation to\ncommit a crime of violence.\nC. Expand felony-murder rule (18 U.S.C. 1111) to include\n\"escape, murder, kidnaping, treason, espionage and sabo-\ntage.\nD. Establish a minimum mandatory 5-year sentence for use\nof a firearm in a federal crime of violence.\nE. Establish an additional minimum-mandatory 5-year sentence\nfor use of armor-piercing bullets in a federal crime of\nviolence.\nF. Expand 18 U.S.C. 1201 to include kidnaping of federal\nofficials.\nG. Establish a new federal offense for crimes against\nfamily members of federal officials.\nH. Expand the Major Crimes Act, which sets out offenses in\nIndian country, to include maiming and sodomy.\n- 3 -\nI. Expand 18 U.S.C. 31 to cover destruction of trucks.\nJ. Establish federal sanctions for causing serious damage\nto an energy facility.\nK. Expand 18 U.S.C. 1114 to include attempted assaults and\nabsaults upon U. S. intelligence officers, and to\nallow the AG to designate other persons for coverage.\nL. Create federal penalties for escape from custody result-\ning from civil commitment.\nM. Amend extradition laws to codify case law and facilitate\nextradition of foreign fugitives.\nN. Amend 18 U.S.C. 844 to clarify present law to ensure that\ntougher penalties for arson are applicable where firemen\nsuffer personal injury. (Congressionally initiated pro-\nposal.)\n0. Establish federal jurisdiction over robberies and burg-\nlaries directed at pharmacies and others registered\nto dispense, manufacture or distribute controlled sub-\nstances. (Congressionally initiated proposal.)\nTitle XI - Serious Non-Violent Offenses\nA. Amend child pornography laws to delete commerciality\nand obscenity requirements.\nB. Amend 18 U.S.C. 2232 to cover warning the subject of a\nsearch.\nC. Establish federal sanctions for theft or bribery involv-\ning federal program funds.\nD. Establish federal sanctions for counterfeiting of State\nand corporate securities and a misdemeanor penalty for\nforged endorsements on U. S. securities.\nE. Amend 18 U.S.C. 2113 to cover receipt of stolen bank\nproperty.\nF. Add a new $ 215 to title 18 to cover bank-related brib-\nery.\nG. Add a new $ 1344 to title 18 to cover bank fraud in-\ncluding check kiting.\nH. Improve penalties for trafficking in drugs, weapons or\nother contraband in federal prisons.\n- 4 -\nI. Establish federal penalties for fraud of $10,000 or more\ninvolving livestock. (Congressionally initiated propo-\nsal.)\nTitle XII - Procedural Amendments\nA. Lower from 16 to 15 the age at which a juvenile may be\nprosecuted as an adult for serious crimes of violence\nand drug trafficking offenses.\nB. Amend wiretap laws to permit emergency wiretaps in life-\nendangering situations and expand the range of predicate\noffenses to include child porn, illegal currency trans-\nactions and crimes against victims and witnesses.\nC. Revise 18 U.S.C. 3237 to permit prosecution of threat\noffenses in any district from, to or through which the\nthreat travels.\nD. Authorize civil injunctions against fraud pending crimi-\nnal prosecution.\nE. Authorize government appeal of new trial orders.\nF. Improve the Witness Security Program through codifica-\ntion of case law and other changes.\nG. Amend tax venue statute to avoid unnecessary splintering\nof criminal tax prosecutions.\nH. Amend Foreign Agent Registration Act to shift powers\nnow held by Secretary of State to the AG. (Congression-\nally initiated proposal.)\nS. 1763\nReform of Federal Intervention in State Proceedings would re-\nduce federal court interference in State adjudications by:\n-- requiring federal deference to \"full and fair\" State\ncourt proceedings;\n- - limiting the time within which State adjudications may\nbe challenged in federal court, and\n- - making other improvements in federal habeas corpus laws.\n- 5 -\nS. 1764\nExclusionary Rule Reform would create an exception to the appli-\ncation of the Exclusionary Rule to prevent suppression of evidence\nwhere it can be shown that officers were proceeding in a good\nfaith and objectively reasonable belief that they were acting in\ncompliance with the law.\nS. 1765\nReinstitution of Gapital Punishment would establish constitution-\nally permissible. procedures for imposition of the death penalty\nin certain homicide, treason and espionage cases.\n- 6"
}