Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
135839906
label
Chron File (08/09/1984-08/27/1984)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
135839906
contentType
document
title
Chron File (08/09/1984-08/27/1984)
citationUrl
identifierLocal
485
collections
Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Chronological Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
135839906
coverageEndDate
logicalDate
1986-12-31
year
1986
coverageStartDate
logicalDate
1982-01-01
year
1982
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
43774f424834b384
ocrText
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: Chron File (08/09/1984-08/27/1984)
Box: 64
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/
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
LOJ 8/30/2005
File Folder
CHRON FILE (08/09/1984-08/27/1984)
FOIA
F05-139/01
Box Number
62
COOK
LOJ2
DOC
Doc Type
Document Description
No of Doc Date Restrictions
NO
Pages
1 MEMO
ROBERTS TO FRED FIELDING (PARTIAL)
1 8/9/1984 B6
1259
2 MEMO
FIELDING TO CHARLES DONOVAN
1 8/9/1984 B6
1260
(PARTIAL)
our I Reagan Presidential Record
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified Information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted Invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose Information complied for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
THE WHITE HOUSE
WASHINGTON
August 9, 1984
MEMORANDUM FOR FRED F. FIELDING
COPY Reagan Presidential Record
FROM:
JOHN G. ROBERTS 856
SUBJECT:
Response to
ble
Chuck Donovan of White House Correspondence has sent us a
"typical" agency draft response to a letter to the Presi-
dent, and has asked whether it is preferable for the WHite
House to transmit the reply or have the agency respond
directly. The letter in question concerned possible SBA
action in response to default on an SBA loan.
While each case must be examined individually, it seems
clear that as a general matter it would be better not to
run agency replies through the White House, when the issue
concerns loans, contracts, adjudications, and the like.
This is of course the rule with respect to independent
agencies, and it certainly makes sense to extend the rule to
executive branch agencies, at least with respect to indivi-
dual matters such as a specific SBA loan. A contrary
approach -- having replies prepared at the agency but sent
from the White House -- creates the potential for misinter-
pretation of the White House role in the matter at issue,
not only on the part of the correspondent but the agency as
well.
A draft memorandum for Donovan, recommending that in this
case and similar ones replies come directly from the per-
tinent agency, is attached for your review and signature.
Attachment
THE WHITE HOUSE
WAS- NOTON
August 9, 1984
MEMORANDUM FOR CHARLES A. DONOVAN
DEPUTY DIRECTOR
WHITE HOUSE CORRESPONDENCE
COPY Reagan Presidential Record
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Response to
ble
You have asked whether a reply to a letter to the President,
prepared by the Small Business Administration (SBA), should
be sent by the agency or by White House Correspondence. The
correspondence concerns possible action by the SBA in
response to default by the correspondent on an SBA loan.
As a general matter correspondence concerning specific cases
pending before agencies should be answered directly by the
pertinent agency gather than the White House. This is of
course the rule with respect to sc-called "independent"
agencies; the rule should also be followed with respect to
individual cases involving loans, grants, contracts, adjudi-
cation, or the like before executive branch agencies. A
contrary course of action creates the potential for misinter-
pretation of the White House role in the agency process not
only by the correspondent but by agency personnel as well.
Since the instant letter concerns the handling of a specific
SEA loan, it should be answered directly by SBA, not the
White House.
Thank you for raising this matter with US. If you have any
further questions on this score, please do not hesitate to
contact this office.
FFF:JGR:aea 8/9/84
CC: FFFielding/JGRoberts/Subj/Chror
THE WHITE HOUSE
WASHINGTON
August 9, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS DOG
SUBJECT:
H.R. 1310 -- Education for Economic
Security Act (Contains Equal Access)
Richard Darman has asked for comments on the above-
referenced enrolled bill by close of business today. The
last day for action on this bill is not until August 15, but
the President plans to announce that he has signed the bill
during this Saturday's radio broadcast.
The most significant aspect of the bill is Title VIII, the
Equal Access Act. The Equal Access Act, a priority of the
Administration for some time, makes it unlawful for any
public secondary school receiving Federal financial assist-
ance which has a "limited open forum" to deny access to that
forum to student groups on the basis of the "religious,
political, philosophical, or other content of the speech" at
meetings conducted by the student groups. A school is
deemed to have a "limited open forum" if it permits any
group to have meetings at school during noninstructional
time. In other words, if any student group (such as the
chess club) can use school facilities during non-school
hours, similar access cannot be denied to other groups, such
as a prayer club or, for that matter, the student Ku Klux
Klan group. There is no enforcement mechanism in the bill.
Justice has concluded that the equal access provisions will
withstand constitutional challenge. In Widmar V. Vincent,
454 U.S. 263 (1981), the Supreme Court held that a public
university could not deny "equal access" to its facilities
to student groups that planned to engage in religious
activities. The present bill would simply extend Widmar to
public high schools. On balance I agree with Justice that
the bill will pass constitutional muster, but the issue is
not free from doubt. In his opinion for the Court in
Widmar, Justice Powell hinted at a possible distinction
based on the age of the affected students: "University
students are, of course, young adults. They are less
impressionable than younger students and should be able to
appreciate that the University's policy is one of neutrality
toward religion." 454 U.S., at 276 n. 14.
- 2 -
The bulk of H.R. 1310 consists of objectionable budget-busting
provisions the Administration will have to swallow to get
the Equal Access Act. Titles I-III establish grant programs
to promote math and science teaching; Title IV authorizes $1
million for 100 Presidential math and science teaching
awards in 1985; Title V authorizes $50 million per year for
1984-1985 and $100 million per year for the five succeeding
years to assist the States in abating asbestos hazards in
the schools; Title VI authorizes $16 million per year for
1984-1985 for demonstration projects on educational excellence;
Title VII creates a grant program for magnet schools.
OMB and Education recommend approval, although they object
to many of the provisions other than the Equal Access Act as
unnecessary, expensive, duplicative, and riddled with
excessive administrative burdens. NSF and OSTP have no
objection. Justice also does not object to signing the
bill, but notes that it is problematic that the Equal Access
Act has no enforcement mechanism, and questions whether it
is really a good idea to deny school officials the power,
for example, to decide that the student branch of the Ku
Klux Klan shall not meet at the school. EPA and Interior
defer; Treasury objects to the interest-free loan aspect of
the asbestos abatement program. The Equal Access Act is a
sufficiently high priority that it appears the bill must be
signed, despite its many objectionable features.
OMB has submitted a signing statement that expresses approval
of two aspects of the bill: the efforts to promote math and
science teaching and, of course, the equal access provisions.
The statement concludes by noting that many provisions in
the bill are objectionable and too expensive, and that the
Administration will not feel bound to request funding at the
excessive levels set in the bill. At lines 12-13 on page 2
of the statement, the President states that the bill appro-
priately balances free speech and "the prohibition against
government support of religion." There is no such prohibition,
and incorrectly paraphrasing the Establishment Clause in
that fashion will be meaningful to students of the
controversies surrounding it. I would change "support" to
"establishment," to avoid any suggestion of a gloss on the
constitutional text.
Attachment
THE WHITE HOUSE
WASH NGTCN
August 9, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
H.R. 1310 -- Education for Economic
Security Act (Contains Equal Access)
Counsel's Office has reviewed the above-referenced enrolled
bill, and finds no objection to it from a legal perspective.
With respect to the draft signing statement, I would change
"support" or page 2, line 13 to "establishment," to more
closely track the constitutional language. A "prohibition
against government support of religion" could be considered
quite different from a "prohibition against government
establishment of religion, and only the latter is clearly
barred by the First Amendment.
FFF:JGR:aea 8/9/84
cc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WAEHINGTON
August 9, 1984
MEMORANDUM FOR RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS 926
SUBJECT:
Use of Presidential Photos and Seal
for Commercial Profit by Piedmont
Pictures, Inc.
Attached, as we discussed, is a letter to Piedmont Pictures,
objecting to their sale of reproductions of the Seal of the
President and inquiring as to the source of their White
House photographs. The use of the Seal by Piedmont clearly
violates 18 U.S.C. $ 713. With respect to the photographs,
however, there is probably nothing we can do, provided
Piedmont is simply selling reproductions of photographs
released into the public domain. Their response to our
inquiry should help determine if this is the case.
Attachment
THE WHITE HOUSE
VAEH NETC'
August 9, 1984
Dear Mr. McFarlin:
Your company's offer for sale of White House photographs and
reproductions of the Seal of the President has come to our
attention, and raises several serious concerns. The permitted
uses of the Seal of the President are limited by law.
Section 713 of Title 18, United States Code, establishes
criminal penalties for the reproduction or sale of any
likeness of the Seal of the President, except as authorized
by regulations promulgated by the President. These regulations
are embodied in Executive Order No. 11649, as amended. I
have enclosed copies of the pertinent statute and executive
order for your information.
You will notice that your use of the Seal is not authorized
by the executive order, and constitutes a violation of
18 U.S.C. § 713. I must, accordingly, advise you to cease
immediately any reproduction and sale of likenesses of the
Seal.
Your offer for sale of White House photographs also raises
serious concerns. I would appreciate being advised concerning
the source of the photographs, whether they are White House
originals or reproductions produced by your company, and any
other information that would assist us in evaluating whether
your marketing of the photographs is consistent with applicable
law and White House policy.
Thank you in advance for your cooperation. I look forward
to hearing from you at your earliest convenience.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. William F. McFarlin
President
Piedmont Pictures, Inc.
Post Office Box 648
Madison, Virginia 22727
FFF:JGR:aea 8/9/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WAEHINGTON
August 9, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS DRR
SUBJECT:
Request for Help for Congressman Hansen
Mrs. Jim Richmond of Independence, Missouri has written the
President, urging him to support Congressman George Hansen
during this, his time of need. I recommend a brief reply
noting that Hansen has been convicted, that his appeal is
pending, and that it would accordingly be inappropriate for
us to comment in any way on the case. A draft is attached.
Attachment
THE WHITE HOUSE
MAEFINGTON
August 9, 1984
Dear Mrs. Richmond:
Thank you for your letter of July 18, 1984 to the President,
concerning Congressman George V. Hansen of Idahc. Congress-
man Hansen was convicted by a jury on April 2, 1984 of four
counts of filing false statements with Congress. His case
is presently on appeal before the United States Court of
Appeals for the District of Columbia Circuit. As I am
certain you will understand, it would accordingly be in-
appropriate for US to comment on the Case in any way.
Thank you, however, for writing and sharing your views with
us.
Sincerely,
Fred F. Fielding
Counsel to the President
Mrs. Jim Richmond
8818 Smart
Independence, MO 64053
FFF:JGR:aea 8/9/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASH NETON
August 9, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS JSR
SUBJECT:
Enrolled Bill H.R. 4952 -- Assistance
for Indian Tribes Affected by MX Missile
Deployment
Richard Darman has asked for comments on the above-
referenced enrolled bill by close of business Friday,
August 10. This bill would authorize the Secretary of
Defense to reimburse Indian tribes for expenses they in-
curred prior to October 2, 1981, for community impact
planning in connection with the ill-fated multiple pro-
tective shelter basing plan for the MX missile system. In
1981 some $5 million was authorized and appropriated to
reimburse states and localities for such planning expenses,
but Indian tribes were not covered. This bill retroactively
covers them for expenses already incurred, with funds to
come from that portion of the $5 million as yet unexpended.
OMB and Defense recommend approval; Interior defers to
Defense. I have reviewed the memorandum for the President
prepared by OMB Assistant Director for Legislative Reference
James M. Frey, and the bill itself, and have no objections.
Attachment
... 11 11
August c, 1984
MEMORANDUM FOP RICHARD G. DARMAN
ASSISTANT TC THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 4952 -- Assistance
for Indian Tribes Affected by MY Missile
Deployment
Counsel's Office has reviewed the above-referenced enrolled
bill, and finds no objection tc it from a legal perspective.
FFF:JGR:aea 8/9/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASH NGTON
August 9, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS off
SUBJECT:
Radio Talk: Equal Access Bill
Richard Darman has asked that comments on the above-
referenced remarks be sent directly to Ben Elliott by noon
today. The remarks begin with the President announcing that
he has signed the Equal Access Act. The President then goes
on to criticize the House Democratic leadership for bottling
up important legislation, including the balanced budget
amendment, the enterprise zones bill, full I.R.A. 's for
spouses working in the home, tuition tax credits, and the
comprehensive anti-crime package.
I have reviewed the remarks and have no objections.
Attachment
1) 11
August 9, 1984
MEMORANDUM FOR BEN ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING
FROM:
FRED F. FIELDING
COUNSEL TC THE PRESIDENT
SUBJECT:
Radic Talk: Equal Access Bill
Counsel's Office has reviewed the above-referenced remarks,
and finds no objection to them from a legal perspective.
CC: Richard G. Darman
FFF:JGR:aea 8/9/84
bcc: FFFielding/JGRoberts/Subj/Chron
=
August 10, 1984
MEMORANDUM FOP MICHAEL E. BAROODY
:
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PUBLIC AFFLIRS
FREI V. problem FIELDING for
FROM:
COUNSEL TC THE PRESIDENT
SUBJECT:
Solicitor General Filing in
Secretary, United States Department
c ÷ Education to Bettw-Louise Feltor
Today the Solicitor General will file = turisdictional
statement before the Supreme Court to appeal the decision of
the United States Court of Appeals for the Second Circuit in
the above-referenced case. Title I c : the Elementary and
Secondary Education Act of 1965, 20 U.S.C. { 2701 et sec.,
eshablished E program under which Federal funds are used tc
pay teachers for renedial reading, remedial methematics, and
Enclush as E secord language instruction. In enacting Title
=, Congress specified that these programs were IC be available
to educationaliy detrived children in private schools as
well ES those 17 public schools. Or. July c, 1984, the
United States Court c ÷ Appeals for the Second Circuit,
considering = Case originating in New York, held that Title
was uncorstitutional The court ruled that Title I
violated the Establishment Clause by authorizing use of
federal funds IC send public teachers into religious schools
= carry or instruction.
:- has filing they the Selicitor General contends that the
Fabebles Clause does not erect E per SE barrier IC
seroung public toachers : religious schools for renedial
and that the facts of this case do not present
the SIVE between church and
STETE TASI Clause was designed LC prevent.
Tre Solutitor
10162 1051 the Suprene Court Las
alreed aytend lear School District of the City of Grand
Returns No. 83-990. That CBSE,
Corport, E state program
similar
::
Title
The Solicitor General
hecommencs
visciction ::
Felton (the
:
1: an
and TUNRO date 0080 VITA Sall,
:::
THE WHITE HOUSE
MAGE NGTO'
August 10, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS JHR
SUBJECT:
Solicitor General Filing in
Secretary, United States Department
of Education V. Betty-Louise Felton
Today the Solicitor General will file a jurisdictional
statement before the Supreme Court to appeal the decision of
the United States Court of Appeals for the Second Circuit in
the above-referenced case. Title I of the Elementary and
Secondary Education Act of 1965, 20 U.S.C. § 2701 et seq.,
established a program under which Federal funds are used to
pay teachers for remedial reading, remedial mathematics, and
English as a second language instruction. In enacting Title
I, Congress specified that these programs were to be available
to educationally deprived children in private schools as
well as those in public schools. On July 9, 1984, the
United States Court of Appeals for the Second Circuit,
considering a case originating in New York, held that Title
I was unconstitutional. The court ruled that Title I
violated the Establishment Clause by authorizing use of
federal funds to send public teachers into religious schools
to carry on instruction.
In his filing today the Solicitor General contends that the
Establishment Clause does not erect a per se barrier to
sending public teachers to religious schools for remedial
instruction, and that the facts of this case do not present
the dangers of excessive entanglement between church and
state that the Establishment Clause was designed to prevent.
The Solicitor General notes that the Supreme Court has
already agreed to hear School District of the City of Grand
Rapids v. Ball, cert. granted, No. 83-990. That case,
arising from the Sixth Circuit, concerns a state program
similar in many respects to Title I. The Solicitor General
recommends that the Court note probable jurisdiction in
Felton (the equivalent to a grant of certiorari in an
appeal), and consolidate the case with Ball.
Consistent with our usual practice in such cases, I have
prepared a memorandum for Baroody, copy to Speakes, advising
them of the filing.
Attachment
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS JJR
SUBJECT:
Enrolled Bill S. 2436 -- Public
Broadcasting Amendments Act of 1984
Richard Darman has asked for comments on the above-
referenced enrolled bill as soon as possible. This bill
would authorize appropriations for the Corporation for
Public Broadcasting (CPB) and a grant program of the
National Telecommunications and Information Administration,
both at levels far beyond Administration requests. The bill
would also repeal 47 U.S.C. § 396 (k), which requires public
broadcasters who pay taxes on earned income unrelated to
broadcasting to refund to CPB an amount equal to the taxes
paid. The bill contains no other provisions beyond the
setting of the funding levels.
OMB and Commerce recommend a veto. The draft disapproval
statement recognizes the contributions of public broadcasting
but objects to the levels in the bill as incompatible with
the clear and urgent need to reduce Federal spending. The
statement notes that legislation providing for Federal
funding at realistic and reasonable levels would be "appro-
priate and welcome."
Assuming the recommendations to veto this bill are accepted,
the question arises whether to use a pocket veto or a return
veto. The use of the pocket veto during an intrasession
adjournment of Congress was addressed in the attached
memorandum prepared for you by Deputy Assistant Attorney
General Robert Shanks on July 10, 1984. That memorandum
noted that while use of the pocket veto during an intrasession
adjournment would be contrary to Kennedy V. Sampson, 511
F.2d 430 (D.C. Cir. 1974), the Government is presently
arguing in Barnes V. Kline, No. 84-5155 (D.C. Cir., filed
May 18, 1984) that use of the pocket veto is appropriate
during any adjournment lasting longer than three days. The
Shanks memorandum concluded that during intrasession adjourn-
ments of longer than three days the President should, if he
desires to disapprove a bill, send it to the originating
House with his objections as well as a statement to the
effect that he is doing so only to comply technically with
Kennedy V. Sampson and not because of any doubts concerning
the availability of the pocket veto.
- 2 -
I have raised this matter with Shanks and he has confirmed
that the advice in the July 10 memorandum is applicable to
this case. The attached memorandum for Darman for your
review and signature alerts Darman to the pocket veto
problem and suggests appropriate revision of the draft
message of disapproval.
cc: Richard A. Hauser
Peter J. Rusthoven
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill S. 2436 -- Public
Broadcasting Amendments Act of 1984
Counsel's Office has reviewed the above-referenced enrolled
bill. If the President decides to disapprove this bill, as
recommended by the Office of Management and Budget and the
Department of Commerce, the proposed message of disapproval
should be revised to preserve the argument that the "pocket
veto" is available during this adjournment of Congress. It
is unclear whether use of the pocket veto is appropriate
during an intrasession adjournment of Congress. Case law in
the District of Columbia suggests that it is not, Kennedy V.
Sampson, 511 F.2d 430 (D.C. Cir. 1974), but the Department
of Justice is presently arguing in court that the pocket
veto is available during any adjournment of Congress lasting
longer than three days. Barnes V. Kline, No. 84-5155 (D.C.
Cir., filed May 18, 1984).
In light of the uncertainty surrounding this issue, the
Department of Justice has recommended that the President
send the instant bill back to the Senate with his objections
as well as a statement that he is doing so only to comply
technically with Kennedy V. Sampson and not because of any
doubts concerning the availability of the pocket veto. The
following language should be substituted for the first
sentence of the draft message of disapproval:
Since the adjournment of the Congress has prevented
my return of S. 2436 within the meaning of Article I,
section 7, clause 2 of the Constitution, my withholding
of approval from the bill precludes its becoming a law.
Notwithstanding what I believe to be my constitutional
power regarding the use of the "pocket veto" during an
adjournment of Congress, however, I am sending S. 2436
to the Senate with my objections, consistent with the
Court of Appeals decision in Kennedy V. Sampson, 511
F.2d 430 (D.C. Cir. 1974).
FFF: JGR:aea 8/27/84
CC: FFielding/RAHauser/JGRoberts/PJRusthoven/Subj/Chron
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 236
SUBJECT:
Enrolled Bill S. 2201 -- Zuni
Indian Tribe Land Conveyance
Richard Darman has asked for comments on the above-
referenced enrolled bill by noon today. This bill would
authorize conveyance of some 11,000 acres of Federal, State,
and private land in Arizona to be held in trust for the Zuni
Indians. The lands are said to be of religious significance;
indeed, they contain a site known as Zuni Heaven, to which
all Zuni spirits hasten. The bill contains several provisions
designed to facilitate transfer of the lands, such as
authorization for the Zunis to use certain Court of Claims
funds to purchase the private land, and a provision deeming
the transfer of private lands to be involuntary conversions
for Federal tax purposes. The bill also requires the
Secretary of the Interior to sell an amount of Bureau of
Land Management land equal to the transferred private land
to the local county government. The theory is that this
will offset the county's loss of taxable land.
The Administration took no position on this bill, confident
that it would not pass. That confidence turns out to have
been misplaced, and now the affected agencies grudgingly
advise that they have no objection to approval. Justice
voiced some concern over whether Congressional action to aid
the Zunis in acquiring land for religious purposes -- stated
to be the purpose of the bill in the bill itself -- would
violate the Establishment Clause. Justice concluded that it
would not, and I concur. In light of the unique trust
relationship between the Federal Government and the various
Indian Tribes, assistance that would be unacceptable if
extended to other groups should be considered constitutionally
tolerable when extended to Indians.
Attachment
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill S. 2201 -- Zuni
Indian Tribe Land Conveyance
Counsel's Office has reviewed the above-referenced enrolled
bill, and finds no objection to it from a legal perspective.
FFF: : JGR:aea 8/27/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS est
SUBJECT:
Enrolled Bill H.R. 4214 -- Mineral
Resources Research Institutes
Richard Darman has asked for comments on the above-
referenced enrolled bill by noon today. This bill,
consistently opposed by the Administration, would extend for
five years Federal matching funding for 31 mineral institutes,
typically established at universities. The affected agencies
do not recommend a veto, since funding levels are low and
the President's February 1984 veto of a similar water
research institutes bill was easily overriden.
The bill does, however, contain a troublesome provision that
Justice recommends addressing in a signing statement. The
Surface Mining Control and Reclamation Act of 1977, which
created the mineral institutes program extended by this
bill, also established a Committee on Mining and Mineral
Resources Research ("the Committee"). The membership of the
Committee includes two private individuals who serve ex
officio -- the President of the National Academy of Sciences
and the President of the National Academy of Engineering.
Under the 1977 Act, the responsibilities of the Committee
were purely advisory, so the fact that these two individuals
were not appointed by the President or an executive branch
official presented no constitutional concerns. The instant
bill would, however, expand the responsibility of the
Committee, to include determining the eligibility of a
college or university to participate in the mineral institutes
program. Section 10 (a).
Justice has advised, and I agree, that the Committee's new
responsibility must be considered advisory rather than final
if the bill is to survive scrutiny under the Appointments
Clause, as interpreted in Buckley V. Valeo, 424 U.S. 1
(1976). The proposed signing statement makes this point.
I have reviewed the memorandum for the President prepared by
OMB Director David Stockman, the bill itself, and the draft
signing statement, and have no objections.
Attachment
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 4214 -- Mineral
Resources Research Institutes
Counsel's Office has reviewed the above-referenced enrolled
bill, and the accompanying signing statement, and finds no
objection to them from a legal perspective.
FFF:JGR:aea 8/27/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 800
SUBJECT:
Revised Presidential Remarks:
Presentation of Young American Medals
Richard Darman has asked that comments on the above-
referenced remarks be sent directly to Ben Elliott by
11:00 a.m. today. The remarks have been revised to include
a challenge to reach out to struggling youth -- the child in
a foster home, those with drug or alcohol problems, the
unwed mother, the dropout. I have reviewed the revised
draft and still have no objections to it.
Attachment
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR BEN ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Revised Presidential Remarks:
Presentation of Young American Medals
Counsel's Office has reviewed the above-referenced remarks,
and finds no objection to them from a legal perspective.
cc: Richard G. Darman
FFF: JGR:aea 8/27/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS $22R
SUBJECT:
H.R. 5712 -- Departments of Commerce,
Justice, State and Judiciary and Related
Agencies Appropriations Bill, 1985
Richard Darman has asked for comments on the above-
referenced bill and suggested signing statement as soon as
possible. The appropriations levels set in the bill are
generally consistent with Administration proposals, and all
affected agencies recommend approval. There are, however,
two objectionable riders that should be addressed in a
signing statement.
The first, on page 19 of the bill, concerns the Legal
Services Corporation (LSC). Last year's Commerce, Justice,
State, the Judiciary, and Related Agencies Appropriations
Act, Public Law 98-166, contained a provision purporting to
require continued funding of LSC grantees at existing levels
unless action is taken by LSC directors confirmed by the
Senate. When he signed Public Law 98-166, the President, on
our advice and that of the Department of Justice, issued a
signing statement objecting to this distinction between the
authority of confirmed and recess appointed directors. The
instant bill incorporates the problematic LSC provisions of
Public Law 98-166 by reference, and it seems clear that our
objections should similarly be reiterated. Failure to do so
could well be construed as conceding the point. The issue
was overlooked by Justice and OMB, however, and accordingly
is not addressed in the proposed signing statement. I
alerted Justice to the problem, and Ralph Tarr of OLC agreed
that language essentially identical to that used last year
should reappear in the instant signing statement. Justice
will provide suggested language as soon as possible.
The second troublesome rider, not overlooked by Justice and
OMB, is Section 510 of the bill, on page 30. This provides
that the Federal Trade Commission may not use funds to
proceed with antitrust actions against a municipality. The
provision was prompted by Congressional objections to two
pending FTC cases against the cities of New Orleans and
Minneapolis, alleging unfair competition through municipal
agreements with the taxicab industry.
- 2 -
Justice and the FTC have been feuding for the past several
days over how to address this problem in the signing state-
ment. The FTC views the issue as a general separation of
powers problem -- Congressional interference with ongoing
litigation -- while Justice prefers to regard it as an
execution of the laws problem -- what happens when Congress
does not give the Executive funds to discharge a constitu-
tional responsibility. It seems clear that both aspects of
the problem are present and should be addressed, and a
compromise signing statement has been prepared by OMB.
Stockman states in his memorandum for the President that the
OMB draft "is acceptable to both agencies."
This is simply not true. Justice, according to Ralph Tarr,
has not signed off on the draft and in fact objects to it.
Justice is concerned that the language does not sufficiently
distinguish between the two separate concerns, and is
preparing a draft that does SO. At this point we should
advise Darman that Justice has not cleared the signing
statement, and will be submitting alternative language as
soon as possible. In light of the time constraints I have
telephoned the substance of the attached memorandum to
Darman's office.
Attachment
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
H.R. 5712 -- Departments of Commerce,
Justice, State and Judiciary and Related
Agencies Appropriations Bill, 1985
Counsel's Office has reviewed the above-referenced enrolled
bill and the accompanying proposed signing statement. I am
advised by the Department of Justice that the Department has
not in fact agreed to the draft signing statement. There
are two distinct points to be made about Section 510 of the
bill -- one focusing on Congressional interference in
pending cases, the other on failure to fund a constitutional
responsibility of the Executive -- and it is Justice's view
that the points are not sufficiently distinguished in the
current draft. Justice will submit alternative language as
soon as possible. That language should be cleared by the
Federal Trade Commission when submitted.
The proposed signing statement makes no mention of the
constitutionally problematic distinction in the bill between
the powers of Legal Services Corporation directors confirmed
by the Senate and those appointed during a Congressional
recess. This objectionable provision appeared in last
year's Commerce, Justice, State, the Judiciary, and Related
Agencies Appropriations Act, Public Law 98-166, and is
incorporated by reference in the instant bill, see p. 19.
Last year the President voiced his concerns about the
provision on signing Public Law 98-166, and the concerns
should be reiterated with respect to this bill, lest it
appear that we are conceding the point or no longer
concerned about it. I have alerted Justice to this problem,
and that Department will include appropriate language in the
new signing statement it is submitting.
cc: Michael Horowitz
Counsel to the Director
Office of Management and Budget
FFF:JGR:aea 8/27/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS Ip
SUBJECT:
H. J. Res. 600, National Commission on
Agricultural Trade and Export Policy
Richard Darman has asked for comments on the above-
referenced enrolled resolution as soon as possible. The
resolution would establish a National Commission on Agri-
cultural Trade and Export Policy. This Commission would
review government programs, policies, and practices in the
area of agricultural exports, and develop recommendations to
be considered in the framing of the 1985 farm bill. The
Commission is to be composed of three nonvoting members
appointed by the President, twenty members from private life
appointed by the President pro tempore of the Senate and the
Speaker of the House (ten each), and twelve ranking members
of Congress from pertinent committees.
The Administration mildly opposed the resolution, but it
passed both Houses by voice vote. None of the affected
agencies recommend disapproval, but Justice suggests a
signing statement objecting to the hermaphroditic character
of the Commission, partly legislative and partly executive.
Since the functions of the Commission are purely advisory,
there are no Appointments or Incompatability Clause problems,
but Justice nonetheless contends commissions of
this sort should clearly serve either the Executive or the
Legislature. A draft signing statement prepared by OMB
reflects this concern, and also emphasizes that many
different groups are working on recommendations for the 1985
farm bill.
I have reviewed the memorandum for the President prepared by
Director Stockman, and the resolution itself. I agree that
the Commission is totally unnecessary, and is simply a means
for elements in Congress to give added stature and
credibility to their views on the farm bill, probably at the
expense of Administration views. Nonetheless, a veto seems
inadvisable. I have also reviewed the draft signing
statement, and have no objections to it.
Attachment
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
H. J. Res. 600, National Commission on
Agricultural Trade and Export Policy
Counsel's Office has reviewed the above-referenced enrolled
resolution, and finds no objection to it from a legal
perspective. The Commission seems designed simply to give
added stature and credibility to the views of elements in
Congress on the farm bill, but since the functions of the
Commission are purely advisory its composition does not
raise constitutional problems. I agree that the draft
signing statement should be issued, so that our concerns
about the creation of these hermaphroditic commissions will
be known.
FFF: JGR:aea 8/27/84
CC: FFFielding/JGRoberts/Subj/Chron