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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: Chron File (08/09/1984-08/27/1984)\nBox: 64\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/\nWITHDRAWAL SHEET\nRonald Reagan Library\nCollection Name\nWithdrawer\nLOJ 8/30/2005\nFile Folder\nCHRON FILE (08/09/1984-08/27/1984)\nFOIA\nF05-139/01\nBox Number\n62\nCOOK\nLOJ2\nDOC\nDoc Type\nDocument Description\nNo of Doc Date Restrictions\nNO\nPages\n1 MEMO\nROBERTS TO FRED FIELDING (PARTIAL)\n1 8/9/1984 B6\n1259\n2 MEMO\nFIELDING TO CHARLES DONOVAN\n1 8/9/1984 B6\n1260\n(PARTIAL)\nour I Reagan Presidential Record\nFreedom of Information Act - [5 U.S.C. 552(b)]\nB-1 National security classified Information [(b)(1) of the FOIA]\nB-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]\nB-3 Release would violate a Federal statute [(b)(3) of the FOIA]\nB-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]\nB-6 Release would constitute a clearly unwarranted Invasion of personal privacy [(b)(6) of the FOIA]\nB-7 Release would disclose Information complied for law enforcement purposes [(b)(7) of the FOIA]\nB-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]\nB-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]\nE.O. 13233\nC. Closed in accordance with restrictions contained in donor's deed of gift.\nTHE WHITE HOUSE\nWASHINGTON\nAugust 9, 1984\nMEMORANDUM FOR FRED F. FIELDING\nCOPY Reagan Presidential Record\nFROM:\nJOHN G. ROBERTS 856\nSUBJECT:\nResponse to\nble\nChuck Donovan of White House Correspondence has sent us a\n\"typical\" agency draft response to a letter to the Presi-\ndent, and has asked whether it is preferable for the WHite\nHouse to transmit the reply or have the agency respond\ndirectly. The letter in question concerned possible SBA\naction in response to default on an SBA loan.\nWhile each case must be examined individually, it seems\nclear that as a general matter it would be better not to\nrun agency replies through the White House, when the issue\nconcerns loans, contracts, adjudications, and the like.\nThis is of course the rule with respect to independent\nagencies, and it certainly makes sense to extend the rule to\nexecutive branch agencies, at least with respect to indivi-\ndual matters such as a specific SBA loan. A contrary\napproach -- having replies prepared at the agency but sent\nfrom the White House -- creates the potential for misinter-\npretation of the White House role in the matter at issue,\nnot only on the part of the correspondent but the agency as\nwell.\nA draft memorandum for Donovan, recommending that in this\ncase and similar ones replies come directly from the per-\ntinent agency, is attached for your review and signature.\nAttachment\nTHE WHITE HOUSE\nWAS- NOTON\nAugust 9, 1984\nMEMORANDUM FOR CHARLES A. DONOVAN\nDEPUTY DIRECTOR\nWHITE HOUSE CORRESPONDENCE\nCOPY Reagan Presidential Record\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nResponse to\nble\nYou have asked whether a reply to a letter to the President,\nprepared by the Small Business Administration (SBA), should\nbe sent by the agency or by White House Correspondence. The\ncorrespondence concerns possible action by the SBA in\nresponse to default by the correspondent on an SBA loan.\nAs a general matter correspondence concerning specific cases\npending before agencies should be answered directly by the\npertinent agency gather than the White House. This is of\ncourse the rule with respect to sc-called \"independent\"\nagencies; the rule should also be followed with respect to\nindividual cases involving loans, grants, contracts, adjudi-\ncation, or the like before executive branch agencies. A\ncontrary course of action creates the potential for misinter-\npretation of the White House role in the agency process not\nonly by the correspondent but by agency personnel as well.\nSince the instant letter concerns the handling of a specific\nSEA loan, it should be answered directly by SBA, not the\nWhite House.\nThank you for raising this matter with US. If you have any\nfurther questions on this score, please do not hesitate to\ncontact this office.\nFFF:JGR:aea 8/9/84\nCC: FFFielding/JGRoberts/Subj/Chror\nTHE WHITE HOUSE\nWASHINGTON\nAugust 9, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS DOG\nSUBJECT:\nH.R. 1310 -- Education for Economic\nSecurity Act (Contains Equal Access)\nRichard Darman has asked for comments on the above-\nreferenced enrolled bill by close of business today. The\nlast day for action on this bill is not until August 15, but\nthe President plans to announce that he has signed the bill\nduring this Saturday's radio broadcast.\nThe most significant aspect of the bill is Title VIII, the\nEqual Access Act. The Equal Access Act, a priority of the\nAdministration for some time, makes it unlawful for any\npublic secondary school receiving Federal financial assist-\nance which has a \"limited open forum\" to deny access to that\nforum to student groups on the basis of the \"religious,\npolitical, philosophical, or other content of the speech\" at\nmeetings conducted by the student groups. A school is\ndeemed to have a \"limited open forum\" if it permits any\ngroup to have meetings at school during noninstructional\ntime. In other words, if any student group (such as the\nchess club) can use school facilities during non-school\nhours, similar access cannot be denied to other groups, such\nas a prayer club or, for that matter, the student Ku Klux\nKlan group. There is no enforcement mechanism in the bill.\nJustice has concluded that the equal access provisions will\nwithstand constitutional challenge. In Widmar V. Vincent,\n454 U.S. 263 (1981), the Supreme Court held that a public\nuniversity could not deny \"equal access\" to its facilities\nto student groups that planned to engage in religious\nactivities. The present bill would simply extend Widmar to\npublic high schools. On balance I agree with Justice that\nthe bill will pass constitutional muster, but the issue is\nnot free from doubt. In his opinion for the Court in\nWidmar, Justice Powell hinted at a possible distinction\nbased on the age of the affected students: \"University\nstudents are, of course, young adults. They are less\nimpressionable than younger students and should be able to\nappreciate that the University's policy is one of neutrality\ntoward religion.\" 454 U.S., at 276 n. 14.\n- 2 -\nThe bulk of H.R. 1310 consists of objectionable budget-busting\nprovisions the Administration will have to swallow to get\nthe Equal Access Act. Titles I-III establish grant programs\nto promote math and science teaching; Title IV authorizes $1\nmillion for 100 Presidential math and science teaching\nawards in 1985; Title V authorizes $50 million per year for\n1984-1985 and $100 million per year for the five succeeding\nyears to assist the States in abating asbestos hazards in\nthe schools; Title VI authorizes $16 million per year for\n1984-1985 for demonstration projects on educational excellence;\nTitle VII creates a grant program for magnet schools.\nOMB and Education recommend approval, although they object\nto many of the provisions other than the Equal Access Act as\nunnecessary, expensive, duplicative, and riddled with\nexcessive administrative burdens. NSF and OSTP have no\nobjection. Justice also does not object to signing the\nbill, but notes that it is problematic that the Equal Access\nAct has no enforcement mechanism, and questions whether it\nis really a good idea to deny school officials the power,\nfor example, to decide that the student branch of the Ku\nKlux Klan shall not meet at the school. EPA and Interior\ndefer; Treasury objects to the interest-free loan aspect of\nthe asbestos abatement program. The Equal Access Act is a\nsufficiently high priority that it appears the bill must be\nsigned, despite its many objectionable features.\nOMB has submitted a signing statement that expresses approval\nof two aspects of the bill: the efforts to promote math and\nscience teaching and, of course, the equal access provisions.\nThe statement concludes by noting that many provisions in\nthe bill are objectionable and too expensive, and that the\nAdministration will not feel bound to request funding at the\nexcessive levels set in the bill. At lines 12-13 on page 2\nof the statement, the President states that the bill appro-\npriately balances free speech and \"the prohibition against\ngovernment support of religion.\" There is no such prohibition,\nand incorrectly paraphrasing the Establishment Clause in\nthat fashion will be meaningful to students of the\ncontroversies surrounding it. I would change \"support\" to\n\"establishment,\" to avoid any suggestion of a gloss on the\nconstitutional text.\nAttachment\nTHE WHITE HOUSE\nWASH NGTCN\nAugust 9, 1984\nMEMORANDUM FOR RICHARD G. DARMAN\nASSISTANT TO THE PRESIDENT\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nH.R. 1310 -- Education for Economic\nSecurity Act (Contains Equal Access)\nCounsel's Office has reviewed the above-referenced enrolled\nbill, and finds no objection to it from a legal perspective.\nWith respect to the draft signing statement, I would change\n\"support\" or page 2, line 13 to \"establishment,\" to more\nclosely track the constitutional language. A \"prohibition\nagainst government support of religion\" could be considered\nquite different from a \"prohibition against government\nestablishment of religion, and only the latter is clearly\nbarred by the First Amendment.\nFFF:JGR:aea 8/9/84\ncc: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWAEHINGTON\nAugust 9, 1984\nMEMORANDUM FOR RICHARD A. HAUSER\nFROM:\nJOHN G. ROBERTS 926\nSUBJECT:\nUse of Presidential Photos and Seal\nfor Commercial Profit by Piedmont\nPictures, Inc.\nAttached, as we discussed, is a letter to Piedmont Pictures,\nobjecting to their sale of reproductions of the Seal of the\nPresident and inquiring as to the source of their White\nHouse photographs. The use of the Seal by Piedmont clearly\nviolates 18 U.S.C. $ 713. With respect to the photographs,\nhowever, there is probably nothing we can do, provided\nPiedmont is simply selling reproductions of photographs\nreleased into the public domain. Their response to our\ninquiry should help determine if this is the case.\nAttachment\nTHE WHITE HOUSE\nVAEH NETC'\nAugust 9, 1984\nDear Mr. McFarlin:\nYour company's offer for sale of White House photographs and\nreproductions of the Seal of the President has come to our\nattention, and raises several serious concerns. The permitted\nuses of the Seal of the President are limited by law.\nSection 713 of Title 18, United States Code, establishes\ncriminal penalties for the reproduction or sale of any\nlikeness of the Seal of the President, except as authorized\nby regulations promulgated by the President. These regulations\nare embodied in Executive Order No. 11649, as amended. I\nhave enclosed copies of the pertinent statute and executive\norder for your information.\nYou will notice that your use of the Seal is not authorized\nby the executive order, and constitutes a violation of\n18 U.S.C. § 713. I must, accordingly, advise you to cease\nimmediately any reproduction and sale of likenesses of the\nSeal.\nYour offer for sale of White House photographs also raises\nserious concerns. I would appreciate being advised concerning\nthe source of the photographs, whether they are White House\noriginals or reproductions produced by your company, and any\nother information that would assist us in evaluating whether\nyour marketing of the photographs is consistent with applicable\nlaw and White House policy.\nThank you in advance for your cooperation. I look forward\nto hearing from you at your earliest convenience.\nSincerely,\nFred F. Fielding\nCounsel to the President\nMr. William F. McFarlin\nPresident\nPiedmont Pictures, Inc.\nPost Office Box 648\nMadison, Virginia 22727\nFFF:JGR:aea 8/9/84\nbcc: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWAEHINGTON\nAugust 9, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS DRR\nSUBJECT:\nRequest for Help for Congressman Hansen\nMrs. Jim Richmond of Independence, Missouri has written the\nPresident, urging him to support Congressman George Hansen\nduring this, his time of need. I recommend a brief reply\nnoting that Hansen has been convicted, that his appeal is\npending, and that it would accordingly be inappropriate for\nus to comment in any way on the case. A draft is attached.\nAttachment\nTHE WHITE HOUSE\nMAEFINGTON\nAugust 9, 1984\nDear Mrs. Richmond:\nThank you for your letter of July 18, 1984 to the President,\nconcerning Congressman George V. Hansen of Idahc. Congress-\nman Hansen was convicted by a jury on April 2, 1984 of four\ncounts of filing false statements with Congress. His case\nis presently on appeal before the United States Court of\nAppeals for the District of Columbia Circuit. As I am\ncertain you will understand, it would accordingly be in-\nappropriate for US to comment on the Case in any way.\nThank you, however, for writing and sharing your views with\nus.\nSincerely,\nFred F. Fielding\nCounsel to the President\nMrs. Jim Richmond\n8818 Smart\nIndependence, MO 64053\nFFF:JGR:aea 8/9/84\nbcc: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWASH NETON\nAugust 9, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS JSR\nSUBJECT:\nEnrolled Bill H.R. 4952 -- Assistance\nfor Indian Tribes Affected by MX Missile\nDeployment\nRichard Darman has asked for comments on the above-\nreferenced enrolled bill by close of business Friday,\nAugust 10. This bill would authorize the Secretary of\nDefense to reimburse Indian tribes for expenses they in-\ncurred prior to October 2, 1981, for community impact\nplanning in connection with the ill-fated multiple pro-\ntective shelter basing plan for the MX missile system. In\n1981 some $5 million was authorized and appropriated to\nreimburse states and localities for such planning expenses,\nbut Indian tribes were not covered. This bill retroactively\ncovers them for expenses already incurred, with funds to\ncome from that portion of the $5 million as yet unexpended.\nOMB and Defense recommend approval; Interior defers to\nDefense. I have reviewed the memorandum for the President\nprepared by OMB Assistant Director for Legislative Reference\nJames M. Frey, and the bill itself, and have no objections.\nAttachment\n... 11 11\nAugust c, 1984\nMEMORANDUM FOP RICHARD G. DARMAN\nASSISTANT TC THE PRESIDENT\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nEnrolled Bill H.R. 4952 -- Assistance\nfor Indian Tribes Affected by MY Missile\nDeployment\nCounsel's Office has reviewed the above-referenced enrolled\nbill, and finds no objection tc it from a legal perspective.\nFFF:JGR:aea 8/9/84\nCC: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWASH NGTON\nAugust 9, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS off\nSUBJECT:\nRadio Talk: Equal Access Bill\nRichard Darman has asked that comments on the above-\nreferenced remarks be sent directly to Ben Elliott by noon\ntoday. The remarks begin with the President announcing that\nhe has signed the Equal Access Act. The President then goes\non to criticize the House Democratic leadership for bottling\nup important legislation, including the balanced budget\namendment, the enterprise zones bill, full I.R.A. 's for\nspouses working in the home, tuition tax credits, and the\ncomprehensive anti-crime package.\nI have reviewed the remarks and have no objections.\nAttachment\n1) 11\nAugust 9, 1984\nMEMORANDUM FOR BEN ELLIOTT\nDEPUTY ASSISTANT TO THE PRESIDENT\nDIRECTOR, PRESIDENTIAL SPEECHWRITING\nFROM:\nFRED F. FIELDING\nCOUNSEL TC THE PRESIDENT\nSUBJECT:\nRadic Talk: Equal Access Bill\nCounsel's Office has reviewed the above-referenced remarks,\nand finds no objection to them from a legal perspective.\nCC: Richard G. Darman\nFFF:JGR:aea 8/9/84\nbcc: FFFielding/JGRoberts/Subj/Chron\n=\nAugust 10, 1984\nMEMORANDUM FOP MICHAEL E. BAROODY\n:\nDEPUTY ASSISTANT TO THE PRESIDENT\nDIRECTOR, PUBLIC AFFLIRS\nFREI V. problem FIELDING for\nFROM:\nCOUNSEL TC THE PRESIDENT\nSUBJECT:\nSolicitor General Filing in\nSecretary, United States Department\nc ÷ Education to Bettw-Louise Feltor\nToday the Solicitor General will file = turisdictional\nstatement before the Supreme Court to appeal the decision of\nthe United States Court of Appeals for the Second Circuit in\nthe above-referenced case. Title I c : the Elementary and\nSecondary Education Act of 1965, 20 U.S.C. { 2701 et sec.,\neshablished E program under which Federal funds are used tc\npay teachers for renedial reading, remedial methematics, and\nEnclush as E secord language instruction. In enacting Title\n=, Congress specified that these programs were IC be available\nto educationaliy detrived children in private schools as\nwell ES those 17 public schools. Or. July c, 1984, the\nUnited States Court c ÷ Appeals for the Second Circuit,\nconsidering = Case originating in New York, held that Title\nwas uncorstitutional The court ruled that Title I\nviolated the Establishment Clause by authorizing use of\nfederal funds IC send public teachers into religious schools\n= carry or instruction.\n:- has filing they the Selicitor General contends that the\nFabebles Clause does not erect E per SE barrier IC\nseroung public toachers : religious schools for renedial\nand that the facts of this case do not present\nthe SIVE between church and\nSTETE TASI Clause was designed LC prevent.\nTre Solutitor\n10162 1051 the Suprene Court Las\nalreed aytend lear School District of the City of Grand\nReturns No. 83-990. That CBSE,\nCorport, E state program\nsimilar\n::\nTitle\nThe Solicitor General\nhecommencs\nvisciction ::\nFelton (the\n:\n1: an\nand TUNRO date 0080 VITA Sall,\n:::\nTHE WHITE HOUSE\nMAGE NGTO'\nAugust 10, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS JHR\nSUBJECT:\nSolicitor General Filing in\nSecretary, United States Department\nof Education V. Betty-Louise Felton\nToday the Solicitor General will file a jurisdictional\nstatement before the Supreme Court to appeal the decision of\nthe United States Court of Appeals for the Second Circuit in\nthe above-referenced case. Title I of the Elementary and\nSecondary Education Act of 1965, 20 U.S.C. § 2701 et seq.,\nestablished a program under which Federal funds are used to\npay teachers for remedial reading, remedial mathematics, and\nEnglish as a second language instruction. In enacting Title\nI, Congress specified that these programs were to be available\nto educationally deprived children in private schools as\nwell as those in public schools. On July 9, 1984, the\nUnited States Court of Appeals for the Second Circuit,\nconsidering a case originating in New York, held that Title\nI was unconstitutional. The court ruled that Title I\nviolated the Establishment Clause by authorizing use of\nfederal funds to send public teachers into religious schools\nto carry on instruction.\nIn his filing today the Solicitor General contends that the\nEstablishment Clause does not erect a per se barrier to\nsending public teachers to religious schools for remedial\ninstruction, and that the facts of this case do not present\nthe dangers of excessive entanglement between church and\nstate that the Establishment Clause was designed to prevent.\nThe Solicitor General notes that the Supreme Court has\nalready agreed to hear School District of the City of Grand\nRapids v. Ball, cert. granted, No. 83-990. That case,\narising from the Sixth Circuit, concerns a state program\nsimilar in many respects to Title I. The Solicitor General\nrecommends that the Court note probable jurisdiction in\nFelton (the equivalent to a grant of certiorari in an\nappeal), and consolidate the case with Ball.\nConsistent with our usual practice in such cases, I have\nprepared a memorandum for Baroody, copy to Speakes, advising\nthem of the filing.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS JJR\nSUBJECT:\nEnrolled Bill S. 2436 -- Public\nBroadcasting Amendments Act of 1984\nRichard Darman has asked for comments on the above-\nreferenced enrolled bill as soon as possible. This bill\nwould authorize appropriations for the Corporation for\nPublic Broadcasting (CPB) and a grant program of the\nNational Telecommunications and Information Administration,\nboth at levels far beyond Administration requests. The bill\nwould also repeal 47 U.S.C. § 396 (k), which requires public\nbroadcasters who pay taxes on earned income unrelated to\nbroadcasting to refund to CPB an amount equal to the taxes\npaid. The bill contains no other provisions beyond the\nsetting of the funding levels.\nOMB and Commerce recommend a veto. The draft disapproval\nstatement recognizes the contributions of public broadcasting\nbut objects to the levels in the bill as incompatible with\nthe clear and urgent need to reduce Federal spending. The\nstatement notes that legislation providing for Federal\nfunding at realistic and reasonable levels would be \"appro-\npriate and welcome.\"\nAssuming the recommendations to veto this bill are accepted,\nthe question arises whether to use a pocket veto or a return\nveto. The use of the pocket veto during an intrasession\nadjournment of Congress was addressed in the attached\nmemorandum prepared for you by Deputy Assistant Attorney\nGeneral Robert Shanks on July 10, 1984. That memorandum\nnoted that while use of the pocket veto during an intrasession\nadjournment would be contrary to Kennedy V. Sampson, 511\nF.2d 430 (D.C. Cir. 1974), the Government is presently\narguing in Barnes V. Kline, No. 84-5155 (D.C. Cir., filed\nMay 18, 1984) that use of the pocket veto is appropriate\nduring any adjournment lasting longer than three days. The\nShanks memorandum concluded that during intrasession adjourn-\nments of longer than three days the President should, if he\ndesires to disapprove a bill, send it to the originating\nHouse with his objections as well as a statement to the\neffect that he is doing so only to comply technically with\nKennedy V. Sampson and not because of any doubts concerning\nthe availability of the pocket veto.\n- 2 -\nI have raised this matter with Shanks and he has confirmed\nthat the advice in the July 10 memorandum is applicable to\nthis case. The attached memorandum for Darman for your\nreview and signature alerts Darman to the pocket veto\nproblem and suggests appropriate revision of the draft\nmessage of disapproval.\ncc: Richard A. Hauser\nPeter J. Rusthoven\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR RICHARD G. DARMAN\nASSISTANT TO THE PRESIDENT\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nEnrolled Bill S. 2436 -- Public\nBroadcasting Amendments Act of 1984\nCounsel's Office has reviewed the above-referenced enrolled\nbill. If the President decides to disapprove this bill, as\nrecommended by the Office of Management and Budget and the\nDepartment of Commerce, the proposed message of disapproval\nshould be revised to preserve the argument that the \"pocket\nveto\" is available during this adjournment of Congress. It\nis unclear whether use of the pocket veto is appropriate\nduring an intrasession adjournment of Congress. Case law in\nthe District of Columbia suggests that it is not, Kennedy V.\nSampson, 511 F.2d 430 (D.C. Cir. 1974), but the Department\nof Justice is presently arguing in court that the pocket\nveto is available during any adjournment of Congress lasting\nlonger than three days. Barnes V. Kline, No. 84-5155 (D.C.\nCir., filed May 18, 1984).\nIn light of the uncertainty surrounding this issue, the\nDepartment of Justice has recommended that the President\nsend the instant bill back to the Senate with his objections\nas well as a statement that he is doing so only to comply\ntechnically with Kennedy V. Sampson and not because of any\ndoubts concerning the availability of the pocket veto. The\nfollowing language should be substituted for the first\nsentence of the draft message of disapproval:\nSince the adjournment of the Congress has prevented\nmy return of S. 2436 within the meaning of Article I,\nsection 7, clause 2 of the Constitution, my withholding\nof approval from the bill precludes its becoming a law.\nNotwithstanding what I believe to be my constitutional\npower regarding the use of the \"pocket veto\" during an\nadjournment of Congress, however, I am sending S. 2436\nto the Senate with my objections, consistent with the\nCourt of Appeals decision in Kennedy V. Sampson, 511\nF.2d 430 (D.C. Cir. 1974).\nFFF: JGR:aea 8/27/84\nCC: FFielding/RAHauser/JGRoberts/PJRusthoven/Subj/Chron\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS 236\nSUBJECT:\nEnrolled Bill S. 2201 -- Zuni\nIndian Tribe Land Conveyance\nRichard Darman has asked for comments on the above-\nreferenced enrolled bill by noon today. This bill would\nauthorize conveyance of some 11,000 acres of Federal, State,\nand private land in Arizona to be held in trust for the Zuni\nIndians. The lands are said to be of religious significance;\nindeed, they contain a site known as Zuni Heaven, to which\nall Zuni spirits hasten. The bill contains several provisions\ndesigned to facilitate transfer of the lands, such as\nauthorization for the Zunis to use certain Court of Claims\nfunds to purchase the private land, and a provision deeming\nthe transfer of private lands to be involuntary conversions\nfor Federal tax purposes. The bill also requires the\nSecretary of the Interior to sell an amount of Bureau of\nLand Management land equal to the transferred private land\nto the local county government. The theory is that this\nwill offset the county's loss of taxable land.\nThe Administration took no position on this bill, confident\nthat it would not pass. That confidence turns out to have\nbeen misplaced, and now the affected agencies grudgingly\nadvise that they have no objection to approval. Justice\nvoiced some concern over whether Congressional action to aid\nthe Zunis in acquiring land for religious purposes -- stated\nto be the purpose of the bill in the bill itself -- would\nviolate the Establishment Clause. Justice concluded that it\nwould not, and I concur. In light of the unique trust\nrelationship between the Federal Government and the various\nIndian Tribes, assistance that would be unacceptable if\nextended to other groups should be considered constitutionally\ntolerable when extended to Indians.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR RICHARD G. DARMAN\nASSISTANT TO THE PRESIDENT\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nEnrolled Bill S. 2201 -- Zuni\nIndian Tribe Land Conveyance\nCounsel's Office has reviewed the above-referenced enrolled\nbill, and finds no objection to it from a legal perspective.\nFFF: : JGR:aea 8/27/84\nCC: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS est\nSUBJECT:\nEnrolled Bill H.R. 4214 -- Mineral\nResources Research Institutes\nRichard Darman has asked for comments on the above-\nreferenced enrolled bill by noon today. This bill,\nconsistently opposed by the Administration, would extend for\nfive years Federal matching funding for 31 mineral institutes,\ntypically established at universities. The affected agencies\ndo not recommend a veto, since funding levels are low and\nthe President's February 1984 veto of a similar water\nresearch institutes bill was easily overriden.\nThe bill does, however, contain a troublesome provision that\nJustice recommends addressing in a signing statement. The\nSurface Mining Control and Reclamation Act of 1977, which\ncreated the mineral institutes program extended by this\nbill, also established a Committee on Mining and Mineral\nResources Research (\"the Committee\"). The membership of the\nCommittee includes two private individuals who serve ex\nofficio -- the President of the National Academy of Sciences\nand the President of the National Academy of Engineering.\nUnder the 1977 Act, the responsibilities of the Committee\nwere purely advisory, so the fact that these two individuals\nwere not appointed by the President or an executive branch\nofficial presented no constitutional concerns. The instant\nbill would, however, expand the responsibility of the\nCommittee, to include determining the eligibility of a\ncollege or university to participate in the mineral institutes\nprogram. Section 10 (a).\nJustice has advised, and I agree, that the Committee's new\nresponsibility must be considered advisory rather than final\nif the bill is to survive scrutiny under the Appointments\nClause, as interpreted in Buckley V. Valeo, 424 U.S. 1\n(1976). The proposed signing statement makes this point.\nI have reviewed the memorandum for the President prepared by\nOMB Director David Stockman, the bill itself, and the draft\nsigning statement, and have no objections.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR RICHARD G. DARMAN\nASSISTANT TO THE PRESIDENT\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nEnrolled Bill H.R. 4214 -- Mineral\nResources Research Institutes\nCounsel's Office has reviewed the above-referenced enrolled\nbill, and the accompanying signing statement, and finds no\nobjection to them from a legal perspective.\nFFF:JGR:aea 8/27/84\nCC: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS 800\nSUBJECT:\nRevised Presidential Remarks:\nPresentation of Young American Medals\nRichard Darman has asked that comments on the above-\nreferenced remarks be sent directly to Ben Elliott by\n11:00 a.m. today. The remarks have been revised to include\na challenge to reach out to struggling youth -- the child in\na foster home, those with drug or alcohol problems, the\nunwed mother, the dropout. I have reviewed the revised\ndraft and still have no objections to it.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR BEN ELLIOTT\nDEPUTY ASSISTANT TO THE PRESIDENT\nDIRECTOR, PRESIDENTIAL SPEECHWRITING\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nRevised Presidential Remarks:\nPresentation of Young American Medals\nCounsel's Office has reviewed the above-referenced remarks,\nand finds no objection to them from a legal perspective.\ncc: Richard G. Darman\nFFF: JGR:aea 8/27/84\nbcc: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS $22R\nSUBJECT:\nH.R. 5712 -- Departments of Commerce,\nJustice, State and Judiciary and Related\nAgencies Appropriations Bill, 1985\nRichard Darman has asked for comments on the above-\nreferenced bill and suggested signing statement as soon as\npossible. The appropriations levels set in the bill are\ngenerally consistent with Administration proposals, and all\naffected agencies recommend approval. There are, however,\ntwo objectionable riders that should be addressed in a\nsigning statement.\nThe first, on page 19 of the bill, concerns the Legal\nServices Corporation (LSC). Last year's Commerce, Justice,\nState, the Judiciary, and Related Agencies Appropriations\nAct, Public Law 98-166, contained a provision purporting to\nrequire continued funding of LSC grantees at existing levels\nunless action is taken by LSC directors confirmed by the\nSenate. When he signed Public Law 98-166, the President, on\nour advice and that of the Department of Justice, issued a\nsigning statement objecting to this distinction between the\nauthority of confirmed and recess appointed directors. The\ninstant bill incorporates the problematic LSC provisions of\nPublic Law 98-166 by reference, and it seems clear that our\nobjections should similarly be reiterated. Failure to do so\ncould well be construed as conceding the point. The issue\nwas overlooked by Justice and OMB, however, and accordingly\nis not addressed in the proposed signing statement. I\nalerted Justice to the problem, and Ralph Tarr of OLC agreed\nthat language essentially identical to that used last year\nshould reappear in the instant signing statement. Justice\nwill provide suggested language as soon as possible.\nThe second troublesome rider, not overlooked by Justice and\nOMB, is Section 510 of the bill, on page 30. This provides\nthat the Federal Trade Commission may not use funds to\nproceed with antitrust actions against a municipality. The\nprovision was prompted by Congressional objections to two\npending FTC cases against the cities of New Orleans and\nMinneapolis, alleging unfair competition through municipal\nagreements with the taxicab industry.\n- 2 -\nJustice and the FTC have been feuding for the past several\ndays over how to address this problem in the signing state-\nment. The FTC views the issue as a general separation of\npowers problem -- Congressional interference with ongoing\nlitigation -- while Justice prefers to regard it as an\nexecution of the laws problem -- what happens when Congress\ndoes not give the Executive funds to discharge a constitu-\ntional responsibility. It seems clear that both aspects of\nthe problem are present and should be addressed, and a\ncompromise signing statement has been prepared by OMB.\nStockman states in his memorandum for the President that the\nOMB draft \"is acceptable to both agencies.\"\nThis is simply not true. Justice, according to Ralph Tarr,\nhas not signed off on the draft and in fact objects to it.\nJustice is concerned that the language does not sufficiently\ndistinguish between the two separate concerns, and is\npreparing a draft that does SO. At this point we should\nadvise Darman that Justice has not cleared the signing\nstatement, and will be submitting alternative language as\nsoon as possible. In light of the time constraints I have\ntelephoned the substance of the attached memorandum to\nDarman's office.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR RICHARD G. DARMAN\nASSISTANT TO THE PRESIDENT\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nH.R. 5712 -- Departments of Commerce,\nJustice, State and Judiciary and Related\nAgencies Appropriations Bill, 1985\nCounsel's Office has reviewed the above-referenced enrolled\nbill and the accompanying proposed signing statement. I am\nadvised by the Department of Justice that the Department has\nnot in fact agreed to the draft signing statement. There\nare two distinct points to be made about Section 510 of the\nbill -- one focusing on Congressional interference in\npending cases, the other on failure to fund a constitutional\nresponsibility of the Executive -- and it is Justice's view\nthat the points are not sufficiently distinguished in the\ncurrent draft. Justice will submit alternative language as\nsoon as possible. That language should be cleared by the\nFederal Trade Commission when submitted.\nThe proposed signing statement makes no mention of the\nconstitutionally problematic distinction in the bill between\nthe powers of Legal Services Corporation directors confirmed\nby the Senate and those appointed during a Congressional\nrecess. This objectionable provision appeared in last\nyear's Commerce, Justice, State, the Judiciary, and Related\nAgencies Appropriations Act, Public Law 98-166, and is\nincorporated by reference in the instant bill, see p. 19.\nLast year the President voiced his concerns about the\nprovision on signing Public Law 98-166, and the concerns\nshould be reiterated with respect to this bill, lest it\nappear that we are conceding the point or no longer\nconcerned about it. I have alerted Justice to this problem,\nand that Department will include appropriate language in the\nnew signing statement it is submitting.\ncc: Michael Horowitz\nCounsel to the Director\nOffice of Management and Budget\nFFF:JGR:aea 8/27/84\nbcc: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS Ip\nSUBJECT:\nH. J. Res. 600, National Commission on\nAgricultural Trade and Export Policy\nRichard Darman has asked for comments on the above-\nreferenced enrolled resolution as soon as possible. The\nresolution would establish a National Commission on Agri-\ncultural Trade and Export Policy. This Commission would\nreview government programs, policies, and practices in the\narea of agricultural exports, and develop recommendations to\nbe considered in the framing of the 1985 farm bill. The\nCommission is to be composed of three nonvoting members\nappointed by the President, twenty members from private life\nappointed by the President pro tempore of the Senate and the\nSpeaker of the House (ten each), and twelve ranking members\nof Congress from pertinent committees.\nThe Administration mildly opposed the resolution, but it\npassed both Houses by voice vote. None of the affected\nagencies recommend disapproval, but Justice suggests a\nsigning statement objecting to the hermaphroditic character\nof the Commission, partly legislative and partly executive.\nSince the functions of the Commission are purely advisory,\nthere are no Appointments or Incompatability Clause problems,\nbut Justice nonetheless contends commissions of\nthis sort should clearly serve either the Executive or the\nLegislature. A draft signing statement prepared by OMB\nreflects this concern, and also emphasizes that many\ndifferent groups are working on recommendations for the 1985\nfarm bill.\nI have reviewed the memorandum for the President prepared by\nDirector Stockman, and the resolution itself. I agree that\nthe Commission is totally unnecessary, and is simply a means\nfor elements in Congress to give added stature and\ncredibility to their views on the farm bill, probably at the\nexpense of Administration views. Nonetheless, a veto seems\ninadvisable. I have also reviewed the draft signing\nstatement, and have no objections to it.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nAugust 27, 1984\nMEMORANDUM FOR RICHARD G. DARMAN\nASSISTANT TO THE PRESIDENT\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nH. J. Res. 600, National Commission on\nAgricultural Trade and Export Policy\nCounsel's Office has reviewed the above-referenced enrolled\nresolution, and finds no objection to it from a legal\nperspective. The Commission seems designed simply to give\nadded stature and credibility to the views of elements in\nCongress on the farm bill, but since the functions of the\nCommission are purely advisory its composition does not\nraise constitutional problems. I agree that the draft\nsigning statement should be issued, so that our concerns\nabout the creation of these hermaphroditic commissions will\nbe known.\nFFF: JGR:aea 8/27/84\nCC: FFFielding/JGRoberts/Subj/Chron"
}