On the day before Thanksgiving, the Office of Legal Counsel posted five new opinions on its website that had been signed between one day (!) and eleven weeks earlier. This is further evidence that the Office is putting a premium on publishing its opinions roughly contemporaneous with their signing; that can be quite an administrative chore, and the Office has clearly expedited the process.
The opinions represent a good cross-section of bread-and-butter OLC issues: whether the Administration’s proposal to register credit-rating agencies is consistent with the First Amendment; whether the Federal Coordinator for the Alaska Natural Gas Transportation Projects is subject to at-will removal by the President; whether the Inspector General of the now-defunct Federal Housing Finance Board automatically became IG of the successor entity (the Federal Home Finance Agency) under the statute that created it; whether an enhanced criminal sentence for possession of a semiautomatic assault weapon in furtherance of a crime of violence or drug trafficking crime had “sunsetted”; and whether a statute that prohibits “provid[ing]” public funds to ACORN prohibits payments under pre-existing contracts or just future obligations.
Links to the opinions, and a brief synopsis of the “holding” of each, is available after the jump. But I thought I’d give a little more detail on the one opinion that will likely garner the most attention, the opinion holding that ACORN can be paid for existing contracts under a ban on payments to ACORN that President Obama signed into law on October 1. Indeed, Charlie Savage of the New York Times has already written this article about it.
The opinion concerns section 163 of Division B of Public Law 111–68, which must have been enacted on a day that the guy who usually comes up with improbable acronyms (PROTECT Act, USA PATRIOT Act, the SNIFF Act, the PUMP Act, etc. etc.) was out sick. The provision states that “[n]one of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.”
The opinion begins by stating that “[t]he term ‘provided to’ has no established meaning in appropriations law,” which generally focuses on obligating funds and expending funds. While, “[t]o be sure, some common definitions of ‘provide,’ . . . would appear to describe any transfer of funds,” other definitions of the word (such as “contribute,” “make available” and “offer”), the opinion states, “connote a discretionary action.” And “several of the word’s definitions incorporate a forward-looking aspect” (as in “[t]o make, procure, or furnish for future use, prepare”).
Because Congress did not use appropriations language that had already been construed to include payments on pre-existing contractual obligations (although, the opinion suggested in a footnote, that language might not, in OLC’s view, “necessarily prohibit payment pursuant to pre-existing legal obligations”), OLC turned to Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631 (2005), for guidance. That opinion stated in relevant part that “[a] statute that retroactively repudiates the Government’s contractual obligation may violate the Constitution. And such an interpretation is disfavored.” Id. at 646. Thus, OLC concluded, “[i]n accord with Cherokee Nation, the better reading of the section is therefore that it does not prohibit such payments.”
OLC concluded that “[t]his reading of ‘provided to’ is especially appropriate here because, consistent with the canon of constitutional avoidance, . . . [it] avoids the particular constitutional concerns that may be presented by reading the statute, which applies to specific named entities, to abrogate such contracts, including even in cases where performance has already been completed but payment has not been rendered.” Although the opinion didn’t specify in the text the “particular constitutional concerns” it meant (the “particular constitutional concern that dare not speak its name?”), it had a long footnote collecting authorities on bills of attainder. Accordingly, “section 163 should not be read as directing or authorizing HUD to breach a pre-existing binding contractual obligation to make payments to ACORN or its affiliates, subsidiaries, or allied organizations where doing so would give rise to contractual liability.”
If you haven’t yet had enough excitement for the day, don’t forget the other opinions after the jump:
WHETHER THE TEN-YEAR MINIMUM SENTENCE IN 18 U.S.C. § 924(c)(1)(B)(i) APPLIES TO SEMIAUTOMATIC ASSAULT WEAPONS (signed Nov. 24, 2009)
Holding: Semiautomatic assault weapons are no longer among the firearms to which the ten-year minimum sentence in 18 USC § 924(c)(1)(B)(i) applies.
REMOVABILITY OF THE FEDERAL COORDINATOR FOR ALASKA NATURAL GAS TRANSPORTATION PROJECTS (signed Oct. 23)
Holding: The Federal Coordinator for the Alaska Natural Gas Transportation Projects is subject to at-will removal by the President.
LETTER OPINION FOR THE ASSISTANT SECRETARY FOR FINANCIAL INSTITUTIONS, U.S. DEPARTMENT OF THE TREASURY (signed Oct. 22)
Holding: The Administration’s proposal for mandatory registration of credit rating agencies, which would include an exemption designed to address First Amendment concerns, would satisfy the First Amendment’s requirements.
AUTHORITY OF THE FORMER INSPECTOR GENERAL OF THE FEDERAL HOUSING FINANCE BOARD TO ACT AS INSPECTOR GENERAL FOR THE FEDERAL HOUSING FINANCE AGENCY (signed Sept. 8)
Holding: The Federal Housing Finance Board Inspector General did not by statute automatically acquire authority to act as IG for the Federal Housing Finance Agency at the time of the enactment of the Federal Housing Finance Regulatory Reform Act of 2008; and accordingly, he cannot appoint employees to the Office of Inspector General for the FHFA.
rpt says:
Here we go on a thread the comments of which will no doubt focus on the threat to the Republic from payments to ACORN for contracts already performed.
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November 28, 2009, 1:00 amJohn Thacker says:
So the Executive Branch decided that the President can remove someone at will, and decided that yet another Inspector General has no real power? New Administration, same old Executive Branch power grab. (And of course Administration-proposed law is always Constitutional.)
One can generally safely assume that the OLC will argue whatever will increase the power of the Executive Branch and the President.
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November 28, 2009, 1:09 amSebastian Tombs says:
Really? Are you proposing we bring back the Tenure of Office Act? The arguments and citations in the opinion seem pretty plausible. Do you have any contrary precedents to cite?
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November 28, 2009, 3:15 amOff Kilter says:
To be fair, ST, JT’s comment was about the nature of the office (OLC), not about any abuse by the Obama administration. As such, you’d EXPECT all the precedents to support their action. The comment was about the tendency to aggregate power, not about a sudden administrative change. If JT has begun, “Following in the footsteps of every administration since Wilson...” it would not be responsive to comment “Well, they seem to be following precedent that can be traced as far back as the Wilson administration.”
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November 28, 2009, 7:37 amGuy says:
Didn’t the Framers expect each branch to advocate its own interest? I thought part of the idea was that the power grabs of the three branches would balance each other out. All these determinations are, at least in theory, reviewable by the Courts. I’m not sure I really see this as cause for scorn. Then again, I agree that the Executive Branch is probably the one that has enjoyed the greatest increase in power relative to the other two branches.
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November 28, 2009, 8:08 amPersonFromPorlock says:
ACORN deserves to be paid for work done before the funding cutoff, provided (no profiting from crime) that they broke no laws while doing it. There seems to be a reasonable doubt about that.
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November 28, 2009, 9:41 amEric Rasmusen says:
Good post. The headlines mispresent the ACORN case, which seems to be about a technical issue (tho an important one). Am I right in thinking that if the government did breach the contract, ACORN could sue for breach? I suppose the question then would be whether the government can breach a contract if the contractor turns out to be commonly engaged in criminal activity or activity against public policy, even tho most of its operations are legal and it was otherwise fulfilling the contract.
More generally, if the government hires Apex Corp. to build a road and then discovers that Apex is owned 100% by the Mafia, even tho it builds good roads, and 1% of employee time is devoted to beating up competitors, can the government breach?
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November 28, 2009, 9:55 amgeokstr says:
One more SCOTUS appointment by this administration and the exact opposite may result — a non-stop reinforcement of power grabs, not from each other, but from the people they are supposed to represent.
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November 28, 2009, 9:59 amEric Rasmusen says:
I think John Thacker is not saying it is unreasonable for the OLC always to support the President’s desires, but that it does so despite liberal pretence that the OLC is and ought to be an unbiased and semi-independent source of legal advice for him, rather than acting as part of his legal staff. (Take a look at the Clinton OLC opinion on whether a statute applies to executive branch employees as well as employees generally, if Congress didn’t expressly state that it does, for example.)
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November 28, 2009, 9:59 amOren says:
If they had a contract in which they relied, they deserve to finish them or be paid severance. It would be rather ironic if the government was not liable to the completion of contracts they have entered — excepting of course usual acts that break a contract such as failure to perform.
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November 28, 2009, 12:33 pmTweets that mention The Volokh Conspiracy » Blog Archive » Five New OLC Opinions -- Topsy.com says:
[...] This post was mentioned on Twitter by Sharon Lopez, Eugene Volokh. Eugene Volokh said: Five New OLC Opinions: On the day before Thanksgiving, the Office of Legal Counsel posted five new opinions on .. http://bit.ly/89A9Li [...]
babe says:
“between one day (!) and eleven weeks” after signing is “roughly contemporaneous with their signing”?
i need to get a job with flexible deadlines like that...
“johnson! i want that report on my desk tomorrow... or within three months!!”
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November 28, 2009, 6:50 pmjackson says:
I served in a Department of Justice office that put most public documents on line within 24 hours, and all within 2 or 3 working days. The Department pays many people to perform this “administrative chore.”
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November 29, 2009, 12:10 pmAssault Weapons Ban Truly Dead | Snowflakes in Hell says:
[...] The Obama Administration is taking the position that the now expired “assault weapons” ban can no longer be consi.... [...]
Mikee says:
I certainly hope that laws no longer on the books are no longer used by the government, as in the very generous explanation of sentencing guidelines by this administration. Who, pray tell, in the Obama administration was still using a sentencing enhancement based upon a law that expired in 2004?
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December 1, 2009, 3:36 pm