Archive | OLC Opinions

OLC in the News

Two items of interest today.

First, the Post has an op-ed by Dawn Johnsen, who withdrew as nominee to be head of OLC after her nomination languished in front of the Senate, entitled (in the print edition) “Mending the Office of Legal Counsel.” It addresses a number of subjects, but the central thrust is to argue that it is time to “halt the damage caused by the ‘torture memo’ by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding,” and that OLC does not need to be formally “independent,” it just needs to perform its traditional role of  “provid[ing] an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.”  It notes that there has not been a confirmed head of OLC for 6 years, which is remarkable. 

Second, the Times has a piece on OLC’s recent VAWA opinion discussed in my post yesterday. It outlines the reasoning of the opinion and suggests it was likely generated in response to a request by an advocacy group:

Brian Moulton, the chief legislative counsel of the Human Rights Campaign, a gay and lesbian advocacy group, said his group asked the Obama transition team after the 2008 election to have the office “clarify” for prosecutors that the Violence Against Women Act covers violence that might arise in same-sex relationships.

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New OLC Opinion: Violence Against Women Act Covers Same-Sex Violence

My past practice of covering the release of OLC opinons has fallen by the wayside because of the press of work here at my day job, so I never got to bore you with my thoughts on the application of the Emoluments Clause to President Obama’s receipt of the Nobel Peace Prize or on DOJ’s views on the proposed constitution for the US Virgin Islands.  For all of you who have been feeling a void in your life ever since, take heart, because I’m about to get my dull on and tell you about OLC’s latest goings and doings.

Yesterday, OLC released an opinion signed April 27 of this year concluding that the criminal provisions of the Violence Against Women Act apply to otherwise covered conduct when the offender and the victim are the same sex.  The three offenses in question, 18 U.S.C. 18 U.S.C. §§ 2261, 2261A, and 2262, prohibit interstate domestic violence, interstate stalking, and interstate violation of a protection order, respectively.

Sections 2261A and 2262 were easy, because both of those apply to whoever does a prohibited act with respect to “another person,” and as the opinion concludes (p.3), “[t]he plain meaning of the term [another person] encompasses individuals of both sexes, regardless of their relationship to the offender.”  Sure, the legislation was called the Violence Against Women Act, and if memory serves the particular subtitle was even called the “Safe Homes for Women Act,” but headings play a relatively modest role in statutory interpretation.

Section 2261, however, involves prohibited conduct with respect to “a spouse, intimate partner, or dating partner,” and the Defense of Marriage Act provides in relevant part that “[i]n determining the meaning of any Act of Congress . . . the word ‘spouse’ refers only to a person of the opposite sex [...]

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Tales of OLC Opinions Foretold

As the Washington Post is reporting today (on page A16 in the print edition), Office of Legislative Affairs AAG Ron Weich has sent a letter to Congressional Hispanic Caucus Chairperson Nydia Velazquez assuring her that the information-gathering and information-sharing provisions of the PATRIOT Act do not override the preexisting confidentiality requirements of the Census Act. The critical language of the letter is this:

The long history of congressional enactments protecting such information from such disclosure, as well as the established precedents of the courts and this Department, supports the view that if Congress intended to override these protections it would say so clearly and explicitly. Because no provision of the Patriot Act, including Section 215, indicates such a clear and explicit intent on the part of Congress, the Department’s view is that no provisions of that Act override otherwise applicable Census Act provisions barring the Commerce Secretary and other covered individuals from disclosing protected census information possessed by the Commerce Department.

I think it’s clear that OLA is channeling OLC on this. I suspect that those two sentences are cut and pasted either from some informal advice OLC rendered in advance of a formal opinion, or from an as-yet-unpublished formal opinion.

Because one of the Administration’s themes is (with apologies to Blue Oyster Cult) “Don’t Fear the Census,” I expect that the opinion will be published as soon as possible on the OLC website. Recall that in August 2009, OLC published a ten-year-old Clinton-era opinion concluding that section 642(a) of the awkwardly acronymed Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) does not repeal a statutory confidentiality requirement codified at 13 U.S.C. § 9(a). [...]

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