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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Office of Legal Policy
(2 of 2)
Box: 35
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
Subj
THE WHITE HOUSE
WASHINGTON
September 20, 1983
MEMORANDUM FOR JOHN B. ROBERTS, III
ASSOCIATE DIRECTOR
OFFICE OF PLANNING AND EVALUATION
FROM:
JOHN G. ROBERTS
ese
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Discussion with Department of Justice
Attorneys Concerning Legal Opinions
Ralph Tarr of the Department of Justice inadvertently
contacted me in the course of returning a call from you
concerning a legal opinion being prepared by his office.
When we established that he was looking for the "other" John
Roberts, Ralph and I both became concerned from the nature
of your inquiry that you may not be familiar with the
attached memorandum for the White House Staff from the
Counsel to the President, which also appears in the
Standards of Conduct section of the White House Office Staff
Manual. Pursuant to this memorandum, questions concerning
legal opinions being prepared by the Department of Justice
should be referred to the Office of the Counsel to the
President.
The call from Ralph was hardly the first and I daresay will
not be the last time our lines will cross. When you have a
free moment, we should discuss means of reducing the
confusion caused by our sharing of a noble name.
THE WHITE HOUSE
WASHINGTON
February 10, 1981
MEMORANDUM FOR THE WHITE HOUSE STAFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Communications with the Department of Justice
As we are all keenly aware, it is imperative that there be
public confidence in the effective and impartial administration
of the laws. To that end, after consultation between the
President and the Attorney General, the following procedures
have been established in regard to communications between the
White House Staff and the Department of Justice.
1. All inquiries which concern or may concern
particular pending investigations or cases being
handled by the Department of Justice shall be
directed to the Counsel to the President. If
appropriate and necessary, the inquiry will then
be transmitted to the Office of the Attorney
General or the Deputy Attorney General.
2. All requests for formal legal opinions
from the Department of Justice shall be directed
to the Counsel to the President, who will direct
such requests to the Office of the Attorney
General or to the Assistant Attorney General --
Office of Legal Counsel.
3. All comments between the White House Office
and the Department of Justice in regard to policy,
legislation and budgeting should be handled directly
between those parties concerned.
Your cooperation in observing these guidelines is most
strongly urged. If you have any questions regarding these
procedures, please contact this Office.
ID #
239086
CU
PEOO1
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
O OUTGOING
H INTERNAL
what nw?
I . INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Ralgh W. Parr
Larry
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: System as Considential financial
reporting by certain Executive branch
longlogies and officials
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
WHolland
ORIGINATOR 0840626
/
/
Referral Note:
WATO2
A 84,06,27
/
/
Referral Note
DD
/
/
/
/
-
Referral Note:
/
/
/
/
-
Referral Note:
/
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I - Info Copy Only/No Action Necessary
A Answered
C Completed
C - Comment/Recommendation
R - Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D - Draft Response
S For Signature
F - Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments: Copy of Jun 21 84 Propare Olson ltr to David
martin attached
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference. ext. 2590.
5/81
a
U.S. Department of Justice
Office of Legal Counsel
-
Office of the
Washington, D.C. 20530
Assistant Attorney General
JUN25 1984
MEMORANDUM FOR FRED F. FIELDING
239086
Counsel to the President
Re: Ethics in Government Act
Attached is a copy of the letter that Ted Olson recently
sent to David Martin, Director of the Office of Government
Ethics, in response to Mr. Martin's letter of March 2, 1984.
Mr. Martin's letter sought reconsideration of this Office's
opinion concerning the scope of the President's power under
the Ethics in Government Act to order a system of confidential
financial reporting by certain Executive branch employees and
officials.
In his haste to leave the country, Ted did not have a
chance to transmit the attached to you and asked me to attend
to it this week.
Raph W.Dane
Ralph W. Tarr
Acting Assistant Attorney General
Office of Legal Counsel
Attachment
U.S. Department of Justice
Office of Legal Counsel
Office of the
Washington, D.C. 20530
Assistant Attorney General
JUN 21 I984
Honorable David H. Martin
Director
Office of Government Ethics
1717 H Street, N.W., Rm. 436
Washington, D.C.
Dear Mr. Martin:
This is in response to your letter of March 2, 1984
requesting our review of a legal memorandum ("March 2 Memoran-
dum") regarding the requirements for confidential financial
disclosure by certain Executive Branch employees and officials.
The author (s) of the March 2 Memorandum have not been identified 1/,
but the contents of the Memorandum have been endorsed in varying
degrees by thirty-five Executive Branch agency legal officials. 2/
1/ We gather from some of the materials submitted with the
March 2 Memorandum that the author may have been someone in
the Office of the General Counsel of the National Aeronautics
and Space Administration. We responded once before to an
unsigned memorandum on this same subject from that office.
See generally Memorandum for Richard A. Hauser, from Theodore
B. Olson, June 30, 1983. The arguments- in the March 2 Memoran-
dum, while more detailed, are not materially different from
those in the prior unsigned memorandum.
2/ The number thirty-five is attained by including thirteen
separate legal officials within the Department of Defense as
well as "concurrences" in various forms by numerous acting,
deputy, associate or assistant general counsels of Executive
Branch agencies and "independent" regulatory bodies. While
we of course respect the competence, integrity and good faith
of the various legal officials who concurred in the March 2
Memorandum, we cannot resolve difficult legal questions on
the basis of a referendum. See 28 U.S.C. §§ 511-513; Executive
Order No. 12146 (July 19, 1979), 44 Fed. Reg. 42657; and 28 C.F.R.
§ 0.25 (all describing the role of the Attorney General in
resolving legal disputes).
The principal legal conclusion articulated by the March 2
Memorandum is contrary to the previously expressed legal
views of this Office. The legal officers who have participated
in this venture 3/ apparently wish us to reconsider again our
views on the subject.
THE ISSUE
Title II of the Ethics in Government Act of 1978, Pub.
L. No. 95-521, 92 Stat. 1824 (the Act), requires certain high
level and policy officials in the Executive Branch to make
annual public disclosure of personal financial information
regarding their income, assets, investments, financial affilia-
tions, liabilities, gifts and reimbursements. At issue here
is the meaning of Section 207(a) of the Act which provides in
pertinent part as follows:
The President may require officers and
employees in the executive branch
...
not covered by this title to submit
confidential reports in such form as is
required by this title.
In short, this provision allows the President to require
lower level Executive officials to submit confidential
financial disclosure statements "in such form as is required
by this title.
We have opined on two previous occasions that the phrase
"in such form as is required by this title" means that if the
President exercises his discretion to require any Executive
Branch officers or employees to submit confidential reports
under this provision, those reports must contain essentially
the same information required for public disclosure by other
officials under the same title of the Act. The alternative
interpretation advanced by the March 2 Memorandum is that the
quoted phrase grants the President "discretion to determine
what information should be required in confidential statements
as long as he does not require more information than is
3/ We attach some significance to the fact that the Office
of Government Ethics has not endorsed the legal conclusions
contained in the March 2 Memorandum. In fact, various persons
in your Office have advised us orally in the past that they
do not disagree with the conclusions of this Office on the
legal issues discussed in this letter.
- 2 -
contained in the public disclosure reports." March 2 Memorandum
at 39. 4/
After having reviewed the statute and its legislative
history in exhaustive detail on yet another occasion and
having subjected this issue to close analysis by several
different lawyers in this Office, we remain convinced that
our initial interpretation of the statute is the correct one.
The alternative, while superficially appealing, and certainly
more convenient for the Executive Branch, ascribes to the
statutory language a meaning that is both incongruous with
the words used by Congress and lacking adequate support in
the legislative history.
We are not unmindful that Congress could have expressed
its intentions more clearly and that the legislative history
of this enactment is, as is frequently the case, not a model
of clarity. We are also keenly aware that a broad, rigid and
indiscriminate imposition of the statute's requirements would
create unpleasant and perhaps unnecessary administrative
burdens. Moreover, even a modest and reasonable application
of the statute as we have interpreted it will apparently
require a great deal more paperwork, inconvenience, expense
and administrative burden than is necessary from the standpoint
of the agencies that have considered the same issue. Neverthe-
less, because the alternative interpretation cannot in our
opinion be squared in good faith with the statute or its
legislative history, and because we feel that we cannot
engage in Executive Branch revision of the statutory require-
ments to serve the interests of expediency, we must reaffirm
our previous conclusion.
PRACTICAL CONSIDERATIONS
Before discussing the legislative history of Section
207 (a) and the arguments made in the March 2 Memorandum, we
would like to make several practical points that should be
considered in applying Section 207 (a).
4/ Addendum 2 (Department of Interior) to the March 2 Memoran-
dum is inconsistent with this conclusion. In this addendum
the Department of Interior sets forth a view that it should be
permitted to collect more detailed information from certain
employees in order to enhance its enforcement of the Surface
Mining Act.
- 3 -
1. Section 207 (a), as we interpret it, does not require the
President or any federal agency to collect financial disclosure
reports from anyone beyond those high-level employees listed
in the Ethics Act. When Congress established the public
disclosure system under the Ethics Act, it eliminated all
then-existing financial disclosure requirements imposed by
law or regulation, including the system of confidential
reporting established by Executive Order 11222. 5/ See
§ 207 (c). While Section 207 (a) permits the President to reimpose
confidential reporting requirements on lower level employees,
he need not do so at all, and he certainly need not do so to
an extent that will create unjustifiable burdens on federal
agencies or employees. In our view, it is well within the
discretion of the President, indeed it is his responsibility,
to weigh all of the relevant considerations before extending
the financial reporting requirements of the Ethics Act to any
given class of employees.
2. Section 207 (c) of the Act purports to supersede only "any
general requirement under law or regulation with respect to
the reporting of information required for purposes of preventing
conflicts of interest or apparent conflicts of interest."
§ 207 (c) (emphasis added). Because the primary purpose of
Section 207 (a) seems to be to permit the President to replace
the general requirements superseded pursuant to Section
207(c), we would read the direction in Section 207 (a) concerning
the content of reports to apply only to "any general requirement
under law or regulation.' We accordingly would not read
Section 207 (a) to prohibit the President, or a Federal agency,
from requesting from particular employees on an ad hoc basis
information different from that required by the Ethics Act.
For example, under this interpretation an agency could request
an employee being investigated for a conflict of interest to
provide financial information beyond that required by the
Ethics Act. 6/
5/ In this regard we must again question Addendum II to the
March 2 Memorandum which describes the financial reports
collected by the Department of the Interior under the Surface
Mining Act. In an Opinion dated April 11, 1980 (reconsidered
at the request of the Solicitor of Interior on January 26,
1981), we advised that the reporting provisions of the Surface
Mining Act were expressly repealed by Section 207 (c) of the
Ethics Act.
6/ Construing subsections 207(a) and (c) to complement one
another also mitigates possible conflict between the statute
and any inherent constitutional powers of the President to
require accountability from Executive branch employees.
- 4 -
3. Similarly, we do not read Section 207 (a) to prohibit the
President, or the federal agencies, from requesting employees
to certify that they understand and are in conformity with
particular restrictions that apply to them by virtue of their
federal employment. For example, the Department of the
Interior could require annual certifications by employees
covered by the Surface Mining Act that they understand that
they are not permitted to have any stock or other financial
interests in mining concerns. Conversely, an agency might
require certain employees to certify their understanding that
18 U.S.C. § 208 requires their disqualification from certain
types of matters, and that they will comply with such disquali-
fication requirements in performing their official duties.
This latter type of certification may be an effective way
of preventing conflicts of interest for special government
employees assigned to work on discrete projects, without
requiring the broad financial disclosure that so many of the
general counsels feel is too burdensome in this context.
4. Finally, as you well know, the Ethics Act itself provides
for special, more flexible, treatment for special government
employees. See generally § 201 (d) (exempting employees
who serve sixty days or less from any public reporting require-
ment), and § 201 (i) (giving the Director of the Office of
Government Ethics authority to waive reporting requirements
for special government employees under certain circumstances).
While implementation of this statute as we understand
its requirements would undoubtedly impose some burdens, there
are alternatives to a rigid, inflexible and broad application.
However, in the final analysis, if our interpretation is
wholly unacceptable and if the burdens are intolerably severe,
you may wish to seek a legislative amendment to the Act so
that the relevant provision would read "in such form as the
President may determine provided that he may not require more
information than is required by this title. If 7/
7/ While the Department of Justice is unlikely to oppose
such legislation in principle, you should be aware that such
proposed legislation may meet with some resistance in the
Congress. The House Report on the 1983 amendments to the
(Footnote continued on next page)
- 5 -
LEGAL DISCUSSION
We do not intend to repeat all of the arguments and
debate that has ensued about the meaning of this provision.
We will attempt merely to respond to some of the major points
made by the March 2 Memorandum.
A. Language and Legislative History
The author of the March 2 Memorandum ignores the language
of the statute on the ground that it is "ambiguous on its
face" and proceeds immediately to an analysis of the legisla-
tive history without ever looking back to the statutory
language. Moreover, the outcome of the author's journey
through the legislative history appears influenced by a
concentration on finding and presenting only one aspect of
that history, that which the author believes lends support to
the conclusion that the President should have complete discre-
tion to establish any number of confidential disclosure
systems so long as these systems do not exceed in their
intrusiveness the public disclosure system established for
high-level political appointees. We believe that this approach
and conclusion are fundamentally flawed.
As a general matter, we cannot abandon the statutory
language "in such form as is required by this title" in favor
of an interpretation that is essentially incompatible with
(Footnote continued)
Ethics Act discusses the issue considered in the March 2
Memorandum and states that:
[T]he committee expects the President, in
exercising the power provided in section
207 of the Act, will not reduce the
scope or nature of the disclosure
requirements. In fact, section 207
provides the President may require
officers and employees to submit ***
reports in such form as is required by
this title. That does not mean truncated
or limited disclosure reports.
H.R. Rep. No. 89, Part. 2, 98th Cong., 1st Sess. 12 (1983)
(emphasis added) ; see also id., at 11 (citing the February
1983 Office of Legal Counsel Opinion).
- 6 -
that language. While we agree that legislative history and
policy considerations are important and useful tools in
interpreting statutes, they do not permit us to ignore the
text of the statute unless Congress unequivocally has stated
it intends a given word or phrase to have a specific meaning.
See generally Consumer Product Safety Comm'n V. GTE Sylvania,
447 U.S. 102, 108 ("Absent a clearly expressed legislative
intention to the contrary, [statutory] language must ordinarily
be regarded as conclusive. "). In this case we are aware of no
such unequivocal statement of Congress, and we simply cannot
reconcile the text of the statute with the position urged in
the unsigned memorandum. Moreover, our review of the legisla-
tive history in its entirety leads us to conclude that Congress
intended to impose the identical reporting obligations upon
employees covered by the confidential and public disclosure
systems.
At the risk of oversimplifying, the March 2 Memorandum
observes that two discrete systems of confidential financial
disclosure were recommended by the relevant Committees of the
House of Representatives. 8/ The Post Office and Civil
Service Committee recommended a confidential system for
certain employees designated by the Director of the Office of
Government Ethics, requiring the same information required on
the public disclosure forms. Under this bill the Director
See generally March 2 Memorandum at 3-23.
There were actually four different Committees of the
House that considered and reported financial disclosure bills.
See generally, 124 Cong. Rec. 30411 et seq. (discussing
various provisions of the different committee bills at the
time that a substitute bill (H.R. 13850) was taken to the
floor). For our purposes, we need only focus on two of the
committee bills.
The Senate Bill (S. 555) was silent on the subject of non-
public disclosure by lower level employees. See discussion
in March 2 Memorandum at 3-4. See also S. Rep. No. 170, 95th
Cong., 1st Sess. 21-28, 42-46, 108-144; and 123 Cong. Rec.
21013-21019 (June 27, 1977). The Conference Report and the
floor consideration of the Conference Report were similarly
silent with respect to this point. See H. Cong. Rep. No.
1756, 95th Cong. 2d Sess. (1978); 124 Cong. Rec. 34526-34527,
36459-36469 (1978). Accordingly, the pertinent legislative
history of Section 207 (a) is derived from the House reports
and floor debates.
- 7 -
also was given authority to relax by regulation specific
reporting requirements applicable to employees filing public
or confidential reports. (H.R. 6954). The Judiciary Committee
recommended a system in which the President had broad discre-
tion 1) to designate. the employees who should file confidential
reports and 2) to determine what information should be contained
in such reports. (H.R. 1). This second element of discretion
was recommended by the committee over objections to the
effect that the bill would permit the President to impose
overly intrusive and burdensome confidential disclosure
requirements on lower level employees. See H.R. Rep. No.
800, 95th Cong., 1st Sess. 100 (1977).
A single compromise bill (H.R. 13850), in the nature of a
substitute, was taken to the House floor. The substitute bill
followed the form of the Judiciary Committee's H.R. 1 in many
respects, but it also contained some new provisions which
presumably answered the objections of dissenters and adopted
positions recommended by the other interested committees.
The limiting language of Section 207 (a) concerning confidential
reporting, "in such form as is required by this [title],'
first appeared in the substitute bill presented on the House
floor. Representative Schroeder, a supporter of the substitute
and the Chairwoman of the Post Office and Civil Service
subcommittee that reported H.R. 6954, explained this provision
of the substitute as follows:
Seventh, there is provision for confi-
dential filing by lower level personnel,
but it must be done, as the Post Office
and Civil Service Committee's bill
required, according to the same form as
public filings will be.
124 Cong. Rec. 30419 (1978). 9/ As noted previously, the
Post Office and Civil Service Committee's bill required the
same information on public and confidential reports.
As the March 2 Memorandum observes in detail, members of
Congress did express sentiments, both in committee and on the
floor, to the effect that the President should not be permitted
9/ Representative Schroeder made this remark in the context
of "point[ing] out some of the good provisions of the substitute
which came from the work of [the Post Office and Civil Service]
committee as shown in H.R. 6954, Part I, the bill we reported
and one of the three we have passed over for the substitute."
124 Cong. Rec. 30419 (1978).
- 8 -
to require more intrusive and burdensome disclosure in the
confidential disclosure system than Congress had mandated for
the public disclosure system. See March 2 Memorandum at 3-23.
The March 2 Memorandum concludes that the most sensible
reading of this legislative history is that Congress intended
to place only an upper limit on the information that could be
required of lower level officials in the confidential system.
The deficiency in this conclusion is that while the language
of the statute and its history support the view that such an
upper limit was intended, they fail to support the proposition
that no lower limit was intended. Standing alone or viewed
as part of the entire history, the fact that some Members of
Congress wanted to place a limit on the President's discretion
to seek personal information from government employees supports
only the conclusion, when coupled with the language ultimately
adopted, that the confidential system could not be allowed to
be more intrusive than the public system. It does not support
the conclusion that the President was given discretion to
collect less information in the confidential disclosure
system than in the public system.
The legislative history in its entirety in fact reflects
a desire for a system that would impose equal and reasonably
uniform burdens on all employees required to file reports.
Congress had decided what categories of information would be
material in evaluating potential conflicts of interest and
seemed to want to impose those requirements on some officials
and leave to the President whether to impose essentially the
same burdens on others. The March 2 Memorandum does not
explain, indeed it does not even cite, the statement of
Representative Schroeder relating the language of Section
207 (a) in the substitute to the view of the Post Office and
Civil Service Committee that there should be essentially the
same disclosure requirements in the public and confidential
systems. Our interpretation of the statute is compatible not
only with the legislative history relied upon in the March 2
Memorandum, but also with the language of the enactment
itself and the statement of Representative Schroeder concerning
the views of her Committee and its role in the compromise that
led to the enactment of Section 207 (a) in its present form.
In addition to its argument based upon the legislative
history, the March 2 Memorandum makes numerous other subsidiary
arguments to support its conclusion. We will respond to
those briefly.
The March 2 Memorandum's argument that Congress could
have specifically referred to "the long-form disclosure
requirement" if it wished to, especially since it did in
- 9 -
other cases, does not advance its conclusion since the same
logic is even more true of the alternative interpretation of
the statute. Congress surely would have said so if it intended
to grant complete discretion to the President except as
limited by the standard of the maximum amount and types of
information required of the higher officials. Congress in
fact set such a limit in Section 202(a) of the Act where it
gave the Director of the Office of Government Ethics authority
to require disclosure of gifts to dependent children "if the
information required to be disclosed does not exceed that
which must be reported by the spouse of a reporting individual
under this title." Section 202(a) (emphasis added). The
argument that Congress could have expressed itself more
clearly had it intended a certain result is not particularly
strong for either conclusion in the facts of this case, but it
is more weighty in favor of the OLC conclusion in light of
the linguistic awkwardness of reaching the alternative conclu-
sion urged in the March 2 Memorandum.
The purpose behind a reporting system that seeks essentially
the same categories of information from all reporting employees--
a purpose that the March 2 Memorandum is entirely unable to
discern--is apparently the goal of a comprehensive, uniform
system. As unpleasant as it might be to fill out these
forms, they seek only certain basic financial information
such as sources and amounts of income, investments and liabi-
lities, the sources and amounts of gifts and reimbursements,
and the identity of financial affiliations. Although it is
possible to disagree with the wisdom of the result, it is
entirely reasonable for Congress to have assumed that these
are precisely the categories of information that should be
disclosed to avoid potential conflicts of interest by employees
without imposing unjustifiable hurdens on the privacy of
those employees.
The March 2 Memorandum argues that its interpretation
must be correct because it is the most "reasonable" in terms
of its effect on the Executive Branch. The word "reasonable"
in the context of the March 2 Memorandum is implicitly translated
into "least burdensome" on the Executive Branch. While this
would be a convenient theory upon which to predicate statutory
interpretation, it ignores the language of the statute itself
and overstates the significance of the judicial authorities
upon which it relies. In most of the cases cited, a literal
interpretation of the statute in question would have been
nonsensical, entirely impracticable, or manifestly inconsistent
with the legislative history. In matters of ethics, but in
other areas as well, Congress has not been motivated strictly
by the ease of application of the statutory requirements or
- 10 -
their convenience for the Executive. Here, for the reasons
enumerated at the outset of this letter, the burden on the
Executive, especially as perceived by the Congress, may not
be as great as it has been portrayed by those anxious to
avoid the requirement.
We certainly agree that this Administration has been
committed to addressing and reducing unnecessary paperwork
burdens and to reducing the oppressive force of such burdens
on those who would work for or with the government. Sympathy
with this policy, however, does not allow us to stretch
legislative intent to suit those goals unless Congress has
permitted such a range of options in the statute. Similarly,
while Congress did intend a more flexible treatment for
special government employees, it made specific provision for
their situation in the Act itself. See discussion at 5, supra.
These provisions can surely be used to mitigate some of the
harsher aspects of the Act with respect to special government
employees, but they are not an excuse to rewrite the Act
itself--even if only with respect to such special government
employees.
Finally, the March 2 Memorandum finds it "difficult to
believe that Congress wished to exempt [certain officials]
from the requirements [of the financial disclosure statute),
but at the same time left the door open to imposition of the
very same requirements through an executive order." In fact,
Congress did this very thing, even under the analysis of the
March 2 Memorandum. It left the "door open" to the President
to impose the reporting requirements on employees not covered
by the public disclosure system.
CONCLUSION
While it would certainly be preferable to read the
statute in the manner suggested, we are unable to conclude
that it is amenable to that interpretation. We have reviewed
the statute and its legislative history repeatedly, but we
cannot accept the tendered legal analysis, irrespective of
the lack of popularity of our conclusions. The statute
requires that any general system of financial reporting
imposed by the President require the same information as is
required in the public reporting system established by the
Act.
Sincerely,
Theodore B. Olson
Assistant Attorney General
Office of Legal Counsel
- 11 -
U.S. Department of Justice
JUSTICE
Office of Legal Counsel
Washington, D.C 20530
July 12, 1984
Mr. John G. Roberts, Jr.
Associate Counsel to the President
The White House
Washington, D.C. 20500
Dear John:
Larry Simms asked me to send you a copy of the
enclosed enrolled bill comment, prepared by this Office,
which recommends that the President include the attached
language in his signing statement on the Deficit Reduction
Act. The area of specific concern to us is the greatly
increased authority of the Comptroller General to review
and decide bid protests. We are sending this material
to you in advance so that you will be aware of the issue
when the enrolled bill report comes over from OMB.
Sincerely,
Tood
Todd D. Peterson
U.S. Department of Justice
Office of Legal Counsel
Office of the
Washington, D.C. 20530
Deputy Assistant Attorney General
JUL 2 1984
MEMORANDUM TO ROBERT A. McCONNELL
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AND INTERGOVERNMENTAL AFFAIRS
Re: Unconstitutional Assignment of Executive Power to
Comptroller General in H.R. 4170
This responds to Mr. Perkins' memorandum of June 27, 1984
to this Office as well as other interested entities within the
Department on this subject. Subsequent to our receipt of
Mr. Perkins' memorandum, we have been informed informally by
Mr. Logan of your office that a veto of this bill, entitled the
"Deficit Reduction Act of 1984," would be highly unlikely for
programmatic reasons. Because of our serious concern that
the President may sign a bill that unconstitutionally delegates
to the Comptroller General, an officer of Congress, the power
to execute the law, we wanted to communicate directly to you
our concern and recommendation regarding an appropriate
signing statement if it is indeed impracticable to secure a
presidential veto of this bill.
As you are aware, the Administration, through a letter
signed by you and addressed to Chairman Brooks of the House
Committee on Government Operations on April 20, 1984, formally
communicated its views regarding the unconstitutionality of
several provisions in H.R. 5184. We are presently in the process
of reviewing the extent to which those unconstitutional pro-
visions in H.R. 5184 have in fact been carried over into
H.R. 4170. Although that review can be completed quickly, it
will take somewhat longer for us to consider carefully what
an appropriate Executive Branch position ought to be with
respect to implementing this legislation once it is enacted
into law. At the present time, we can identify at least three
areas where potential constitutional problems are raised by the
proposed bill. First, § 2741 prohibits an agency from awarding
or going forward with performance of a contract if a protest
has been submitted to the Comptroller General by an interested
party, unless the head of the procuring agency specifically
makes certain written findings. A similar provision was
contained in § 204 (b) (2) of H.R. 5184. Second, $ 2741 also
would permit the Comptroller General to require the contracting
agency to pay costs, attorneys fees, and bid preparation expenses
to a successful protestor. Third, the procedure established by
§ 2741 purports to require the contracting agency to disclose
"all relevant documents" with respect to a protested procurement,
including, presumably, documents that may be privileged. These
provisions interfere with the Executive's ability to execute the
law and thrust an arm of Congress into the middle of the
Executive's constitutional business.
One possible response to these provisions would be an
appropriate direction to all Executive Branch agency heads to
ignore the questionable provisions until such time as they
are held constitutional by a court. Such a directive from
the President would not be without clear precedent, because
in 1955 President Eisenhower instructed the Secretary of
Defense to ignore a provision in an enrolled bill which granted
to a committee of Congress power much like that granted to the
Comptroller General here. President Eisenhower stated that
that provision "will be regarded as invalid by the Executive
Branch of the Government unless otherwise determined by
a court of competent jurisdiction." Public Papers of the
President: Dwight D. Eisenhower 689 (1955).
Whether an instruction like the 1955 instruction by
President Eisenhower to his subordinates should be issued in
this matter is an issue worthy of careful thought and deliberation.
Because of the short time frame in which to consider and resolve
this problem in the context of an enrolled bill, we have
attached proposed language for a presidential signing statement
which essentially makes the constitutional point but indicates
that precise instructions as to how the Executive Branch will
treat the unconstitutional provisions will be forthcoming from
the Attorney General.
Our transmission of this proposed language to be included in
a presidential signing statement should not be taken as an
indication that the Department should not recommend a veto of
this legislation. These particular provisions of this bill
represent the culmination of an effort, strongly resisted by this
Department over many years, to grant to the Comptroller General
power not only to execute the laws of the United States but to
supervise directly the execution of the law by Executive Branch
agencies who are presently, and must constitutionally be,
subordinate only to the President, not the Comptroller General,
in their execution of the law. A presidential veto of this bill
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on constitutional grounds would most assuredly send an unmistakable
message to Congress regarding this President's position on
legislation encroaching directly on Executive power. We assume
a threat to veto it before it is in fact enrolled might have a
similar effect, and we would urge your Office to explore that
possibility. We believe it important that your Office, in
the time available, attempt to assure itself and this Department
that a presidential veto is not worth exploring further.
F Suin
Larry b. Simms
Deputy Assistant Attorney General
Office of Legal Counsel
Attachment
CC (w/attach. ): Richard Willard
Assistant Attorney General
Civil Division
Charles Myers
Civil Division
Terry Samuels
Justice Management Division
John Filippini
Antitrust Division
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PROPOSED LANGUAGE FOR PRESIDENTIAL SIGNING STATEMENT
ON H.R. 4170
In signing this important legislation, I must vigorously
object to certain provisions that would unconstitutionally
attempt to delegate to the Comptroller General of the United
States, an officer of Congress, the power to perform duties and
responsibilities that in our constitutional system may be
performed only by officials of the Executive Branch. This
Administration's position on the unconstitutionality of these
provisions was clearly articulated to Congress by the Department
of Justice on April 20, 1984. I am instructing the Attorney
General to inform all Executive Branch agencies as soon as
possible with respect to how they may comply with the provisions
of this bill in a manner consistent with the Constitution.