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Office of Legal Counsel of The OPINIONS OF THE OFFICE OF LEGAL COUNSEL OF THE UNITED STATES DEPARTMENT OF JUSTICE CONSISTING OF SELECTED MEMORANDUM OPINIONS ADVISING THE PRESIDENT OF THE UNITED STATES, THE ATTORNEY GENERAL AND OTHER EXECUTIVE OFFICERS OF THE FEDERAL GOVERNMENT IN RELATION TO THEIR OFFICIAL DUTIES VOLUME 16 1992 WASHINGTON 1998 Attorney General William P. Barr Assistant Attorney General Office of Legal Counsel Timothy E. Flanigan Deputy Assistant Attorneys General Office of Legal Counsel John E. Barry Douglas R. Cox John C. Harrison David G. Leitch OFFICE OF LEGAL COUNSEL Attomey-Advisers (1992) Barbara E. Armacost Eric Grant Stuart M. Benjamin Rosemary A. Hart Steven G. Bradbury Daniel L. Koffsky Lee A. Casey Herman Marcuse Paul P. Colbom M ark L. Movsesian Peter B. Davidson Eric A. Posner Robert J. Delahunty Alexandra A.E. Shapiro Jacques deLisle Jeffrey K. Shapiro John F. Duffy George C. Smith Mark P. Edelman John J. Sullivan James E. Gauch Susan J. Swift Todd F. Gaziano FOREWORD The Attorney General has directed the Office of Legal Counsel to publish selected opinions on an annual basis for the convenience of the executive, legislative, and judicial branches of the government, and of the professional bar and the general public. The first fifteen volumes of opinions published covered the years 1977 through 1991; the present volume covers 1992. The opinions included in Volume 16 include some that have previously been released to the public, additional opinions as to which the addressee has agreed to publication, and opinions to Department of Justice officials that the Office of Legal Counsel has determined may be released. A substantial number of Office of Legal Counsel opinions issued during 1992 are not included. The authority of the Office of Legal Counsel to render legal opinions is derived from the authority of the Attorney General. Under the Judiciary Act of 1789 the Attorney General was authorized to render opinions on ques- tions of law when requested by the President and the heads of executive departments. This authority is now codified at 28 U.S.C. §§ 511-513. Pur- suant to 28 U.S.C. § 510 the Attorney General Has delegated to the Office of Legal Counsel responsibility for preparing the formal opinions of the Attor- ney General, rendering opinions to the various federal agencies, assisting the Attorney General in the performance of his function as legal adviser to the President, and rendering opinions to the Attorney General and the heads of the various organizational units of the Department of Justice. 28 U.S.C. § 0.25. v Opinions of the Attorney General in Volume 16 Contents Page Proposed Federal Abortion Legislation (July 1, 1992)............................... 1 Authority to Use United States Military Forces in Somalia (December 4, 1992) (attaching Office of Legal Counsel memoran- dum) .......................................................................................................... 6 Opinions of the Office of Legal Counsel in Volume 16 Contents Page Recess Appointments During an Intrasession Recess (January 14, 1992).................................................................................. 15 Issues Raised by Provisions Directing Issuance of Official or Diplomatic Passports (January 17, 1992)................................................................. 18 Transfers of Forfeited Property to State and Local Law Enforcement Agen- cies (January 23, 1992)........................................................................... 38 Fourth Amendment Implications of Military Use of Forward Looking In- frared Radars Technology for Civilian Law Enforcement (March 4, 1992)......................................................................................................... 41 Application of 18 U.S.C. § 205 to Proposed “Master Amici” (March 12, 1992)......................................................................................................... 59 Statutory Authority to Contract with the Private Sector for Secure Facili- ties (March 25, 1992).............................................................................. 65 Funding for the Critical Technologies Institute (May 12, 1992)............. 77 Congressional Pay Amendment (May 13,1992) (attaching Office of Legal Counsel memorandum)........................................................................... 85 Marketing Loans for Grains and Wheat (June 3, 1992)............................. 114 Enforcement Jurisdiction of the Special Counsel for Immigration Related Unfair Employment Practices (August 17, 1992)............................... 121 Whether a State May Elect Its United States Senators From Single-Mem- ber Districts Rather Than At-Large (August 20, 1992)...................... 132 Legal Authority of the Department of the Treasury to Issue Regulations Indexing Capital Gains for Inflation (September 1, 1992)............... 136 Immigration and Naturalization Service Participation in Computer Match- ing Program with Department of Education (September 21, 1992) . 159 vii OPINIONS OF THE ATTORNEY GENERAL OF THE UNITED STATES Proposed Federal Abortion Legislation The proposed legislation would enact a federal statutory regime of abortion regulation that leaves the States with substantially less regulatory authority than they have under R oe v. Wade or Planned Parenthood v. Casey. The proposed legislation would represent a doubtful exercise of Congress' power to enforce the Fourteenth Amendment and would rest on a questionable link to Congress' power to regulate interstate commerce. July 1, 1992 Le t t e r f o r t h e C h a i r m a n C o m m i t t e e o n La b o r a n d H u m a n Re s o u r c e s U.S. Se n a t e This letter presents the views of the Department of Justice concerning the amended versions of the Freedom of Choice Act of 1991, introduced as companion bills H.R. 25 and S. 25 (collectively “the bill”). The Department strongly opposes enactment of this legislation. The recent amendment intro- duced by Senator Mitchell, making minor changes to the bill, fails to confront the bill’s most serious flaws. For the reasons below, if the bill were pre- sented to the President, I and the President’s other senior advisors would recommend that he veto this legislation. The review bill would still prohibit States from enacting reasonable regu- latory restrictions on abortions clearly permitted under Roe v. Wade and its progeny. It would also represent a doubtful exercise of Congress’ power under the Fourteenth Amendment and would rest on a questionable link to Congress’ power to regulate interstate commerce. I. The Revised Bill The bill is described by its sponsors as a “codification” of much of the complex regime of abortion legislation erected by the Supreme Court since its 1973 decision in Roe v. Wade, 410 U.S. 113 (1973). The bill as revised expressly states its purpose to be “to achieve the same limitations as pro- vided, as a constitutional matter, under the strict scrutiny standard of review enunciated in Roe v. Wade and applied in subsequent cases from 1973 to 1988.” Section 2(b). Because of its sweeping language, however, the bill 1 would enact a federal statutory regime of abortion regulation that leaves the states with substantially less regulatory authority than under Roe or the Su- preme Court’s decision earlier this week in Planned Parenthood v. Casey, 505 U.S. 833 (1992). The essence of the bill remains substantially unchanged: “[a] State . may not restrict the freedom of a woman to choose whether or not to termi- nate a pregnancy before fetal viability,” and after viability the State may not restrict abortion if the abortion “is necessary to preserve the life or health of the woman.” Section 3(a)(1) and (2). The revised bill would thus still allow abortions for any reason, even sex selection, before the fetus becomes “viable.” With no definition or stan- dards for viability, it appears that the bill could leave that determination to the person performing the abortion. Thus a single health care professional’s judgment that a particular fetus was not “viable” would be conclusive and binding on the state, whether or not the fetus satisfied other objective crite- ria of “viability” such as a test for weight. It is not even clear that the professional judgment must be rendered by a medical doctor. Even after fetal viability, with no standards for determining what consti- tutes the “health of the woman” justifying an abortion, the revised bill would still go well beyond merely “codifying” Roe. As we have explained in earlier statements and testimony, we believe that the term “health” in section 3(a)(2) would likely be construed broadly. See Doe v. Bolton, 410 U.S. 179 (1973). The Court there noted that the medical judgment must be made in light of all factors, including “emotional, psychological, [and] familial” fac- tors. Id. at 192. It is likely, therefore, that even after viability an abortion performed for any reason that a medical professional (who, again, appar- ently need not be a licensed physician) deemed “relevant to the well-being” of the woman, id., would probably be protected under the bill as “necessary to preserve the life or health of the woman.” Section 3(a)(2). The revised bill purports to address a few of the concerns the Department has raised previously. These changes, however, do not fully meet the Department’s concerns on the issues they address, and leave many more serious flaws unaddressed. For example, the revised bill allows some degree of parental participation in the decision of a minor to undergo an abortion.
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