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Office of Legal Counsel 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 19 1995 WASHINGTON 2002 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo gov Phone. (202) 512-1800 Fax. (202) 512-2250 Mail- Stop SSOP, Washington, DC 20402-0001 ISBN 0-16-050772-3 Attorney General Janet Reno Assistant Attorney General Walter Dellinger Deputy Assistant Attorneys General Office o f Legal Counsel Dawn E. Johnsen Randolph Moss H. Jefferson Powell Christopher H. Schroeder Richard L. Shiffrin OFFICE OF LEGAL COUNSEL Attorney-Advisers (1995) Rebecca A. Arbogast Martin S. Lederman Stuart M. Benjamin Herman Marcuse Elizabeth A. Cavendish Karen A. Popp Paul P. Colbom Ann K. Reed Robert J. Delahunty Michael C. Small Ari Q. Fitzgerald George C. Smith Todd F. Gaziano Karen L. Stevens Pamela A. Harris Emily S. Uhrig Rosemary A. Hart Geovette E. Washington Neil J. Kinkopf Ursula Wemer Daniel L. Koffsky iv 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, legisla­ tive, and judicial branches of the government, and of the professional bar and the general public. The first eighteen volumes of opinions published covered the years 1977 through 1994; the present volume covers 1995. The opinions included in Volume 19 include some that have previously been released to the public, addi­ tional 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 1995 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 questions 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. Pursuant 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 Attorney General, rendering opinions to the various federal agencies, assisting the Attorney General in the performance of her 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 C.F.R. §0.25. v Opinions of the Office of Legal Counsel in Volume 19 Contents Page Relationship Between Department of Justice Attorneys and Persons on Whose Behalf the United States Brings Suits Under the Fair Housing Act (January 20, 1995).................................................................................................................. 1 The Balanced Budget Amendment (January 23, 1995) ................................................ 8 Internal Revenue Service Notices of Levy on Undelivered Commerce Department Fishing Quota Permits (January 26, 1995)............................................................ 23 Authority of FBI Agents, Serving as Special Deputy United States Marshals, to Pursue Non-Federal Fugitives (February 21, 1995).............................................. 33 Permissibility of the Administration and Use of the Federal Payroll Allocation System by Executive Branch Employees for Contributions to Political Action Committees (February 22, 1995)........................................................................... 47 Use of the Exchange Stabilization Fund to Provide Loans and Credits to Mexico (March 2, 1995) ...................................................................................................... 83 Authority to Issue Executive Order on Government Procurement (March 9, 1995) ... 90 Impermissibility of Deputizing the House Sergeant at Arms as a Special Deputy U.S. Marshal (April 10, 1995)................................................................................ 99 Whether 18 U.S.C. §603 Bars Civilian Executive Branch Employees and Officers from Making Contributions to a President’s Authorized Re-Election Campaign Committee (May 5, 1995) ...................................................................................... 103 Authority of the Secretary of the Treasury to Order the Closing of Certain Streets Located Along the Perimeter of the White House (May 12, 1995)..................... 109 Bill to Relocate United States Embassy from Tel Aviv to Jerusalem (May 16, 1995) 123 Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund (May 22, 1995) ........................................................................................................................ 127 Waiver of Claims for Damages Arising Out of Cooperative Space Activity (June 7, 1995)................................................................................................................... 140 Effects of a Presidential Pardon (June 19, 1995) .......................................................... 160 Legal Guidance on the Implications of the Supreme Court’s Decision in Adarand Constructors, Inc. v. Pena (June 28, 1995)........................................................... 171 Constitutional Limitations on Federal Government Participation in Binding Arbitration (September 7, 1995)............................................................................. 208 Authority to Employ the Services of White House Office Employees During an Appropriations Lapse (September 13, 1995) ........................................................ 235 Scope of Treasury Department Purchase Rights with Respect to Financing Initiatives of the U.S. Postal Service (October 10, 1995).................................... 238 The Food and Drug Administration’s Discretion to Approve Methods of Detection and to Define the Term “ No Residue” Pursuant to the Federal Food, Drug, and Cosmetic Act (October 13, 1995)................................................................... 247 Constitutionality of Awarding Historic Preservation Grants to Religious Properties (October 31, 1995).................................................................................................. 267 vii Reassignment of Assistant Secretary of Labor Without Senate Reconfirmation (November 2, 1995)................................................................................................ 274 Authorization of Immigration Emergency Fund Reimbursements (November 8, 1995) ........................................................................................................................ 278 The Secretary of the Treasury’s Authority with Respect to the Civil Service Retirement and Disability Fund (November 10, 1995)........................................ 286 Participation in Congressional Hearings During an Appropriations Lapse (November 16, 1995).............................................................................................. 301 Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (November 16, 1995) .................................................................................................................. 306 Proposed Deployment of United States Armed Forces into Bosnia (November 30, 1995) ........................................................................................................................ 327 Effect of Appropriations for Other Agencies and Branches on the Authority to Continue Department of Justice Functions During the Lapse in the Department’s Appropriations (December 13, 1995)............................................. 337 Legislation Denying Citizenship at Birth to Certain Children Bom in the United States (December 13, 1995) ................................................................................... 340 Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges (December 18, 1995) .............................................................................................. 350 viii OPINIONS O F THE OFFICE OF LEGAL COUNSEL Relationship Between Department of Justice Attorneys and Persons on Whose Behalf the United States Brings Suits Under the Fair Housing Act When the Department of Justice undertakes a civil action on behalf of a complainant alleging a discriminatory housing practice under the Fair Housing Act, Department attorneys handling the action do not enter into an attomey-client relationship with the complainant, nor do they undertake a fiduciary obligation to the complainant. Because no attomey-client relationship is established in such undertakings, no retainer agreement between the complainant and the Department attorneys should be entered into. January 20, 1995 M e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l C iv il R i g h t s D i v is io n You have requested that this Office clarify the legal relationship between Department attorneys and individuals on whose behalf the United States institutes civil actions pursuant to the Fair Housing Act, as amended. 42 U.S.C. §§3604- 3616a. Description of the program The Fair Housing Act uses the resources of the federal government to address housing discrimination against
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