Five New OLC Opinions

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.