Delegation of Authority to Approve DEA Undercover Operations ( 1985 )

Delegation of Authority to Approve
DEA Undercover Operations
The general rule with respect to delegations is that any statutorily conferred authority is
delegable, at least in the absence o f any indication o f congressional intent that the official
nam ed must personally exercise the authority conferred upon him.
The Attorney G eneral and the Adm inistrator of the Drug Enforcement Adm inistration may
delegate their respective authority to approve D EA undercover operations pursuant to
§ 203(b)(1) o f Pub. L. No. 9 8 ^ 1 1 , 98 Stat. 1545, 1559-60 (1984). Nothing in the language,
purpose, o r legislative history of the statute dem onstrates an intent to preclude delegation.
Rather, the statute reflects the com m on legislative practice o f conferring general authority
upon the head o f a department or agency.
November 20, 1985
M em o ran d um O p in io n f o r t h e C h ie f C o u n s e l ,
D rug En f o r c e m e n t A d m in is t r a t io n
This responds to your request for advice from this Office concerning whether
the statutory authority to approve Drug Enforcement Administration (DEA)
operations may be delegated. The DEA’s authority to employ certain under­
cover techniques was expressly conferred by § 203(b)(1) of Pub. L. No. 98-
411, 98 Stat. 1545, 1559-60 (1984), the Department o f Justice appropriations
act for fiscal year 1985. The legislation was requested because of the perceived
legal impediments to, or uncertainties surrounding, the DEA’s use of these
undercover techniques in the absence of express statutory exemption from
general prohibitions in the law. In brief, § 203 authorizes the DEA, in the
course of its undercover operations, to use appropriated funds to purchase
buildings or lease space, to establish or acquire proprietary corporations, and to
make bank deposits; and to use the proceeds of an undercover operation to
offset the expenses o f that operation (sometimes referred to as “proprietary
operations”), all without regard to certain identified general statutory restric­
tions that might otherwise apply to such activities.1
1 The FBI obtained authorization to en g ag e in proprietary operations in the D epartm ent’s appropriations
authorization act fo r fiscal y ear 1979, P u b . L. No 9 5 -6 2 4 , § 18(a), 92 Stat. 3459, 3465-66 (1978). The
authority to establish o r acquire corporations in undercover operations was granted to the FBI the following
year in th e D ep artm en t's appropriations authorization act for fiscal year 1980, Pub. L. No. 96-132, § 7(a), 93
Stat. 1040, 10 4 5 -4 6 (1979). Except for o n e b rie f period, the FBI has had this authority continuously since
that time.
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The DEA’s authority to engage in some of these techniques has been the
subject of legal opinions of this Office. This Office has previously opined, for
example, that the DEA had inherent authority to make bank deposits, on certain
conditions, notwithstanding the general statutory prohibition on the deposit in
banks of public moneys.2 This Office has also previously concluded, however,
that the DEA did not have the implied authority to engage in proprietary
operations.
Under § 203, the DEA is expressly authorized, for the first time, to use the
four undercover techniques previously authorized for the FBI. Section 203
provides that these techniques are available upon the written certification of the
Administrator of the DEA and the Attorney General. You have asked whether
the authority of each of these officials to certify the necessity for the use of the
undercover techniques is delegable.3
The general rule is that any statutorily conferred authority is delegable, at
least in the absence of any indication of congressional intent that the official
named must personally exercise the authority conferred upon him. See United
States v. Giordano, 416 U.S. 505, 514 (1974).4
In Giordano, the government argued that “merely vesting a duty in the
Attorney G eneral. . . evinces no intention whatsoever to preclude delegation to
other officers in the Department of Justice, including those on the Attorney
General’s own staff.” Id. at 513. The Supreme Court noted that “as a general
proposition, the argument is unexceptional.” Id. at 514. The Court found,
however, that in this case, “the matter of delegation is expressly addressed
and the power of the Attorney General in this respect is specifically limited to
delegating his authority to [those mentioned in the statute]. Despite [28 U.S.C.]
2 M emorandum for Robert T. R ichardson, Acting C h ief C ounsel, Drug Enforcem ent A dm inistration from
Larry L. Sim ms, Acting A ssistant A ttorney General, O ffice o f Legal Counsel (Oct. 2 t 1981).
3 The original legislation relating to the FBI conferred the authority to engage in the three specific
undercover techniques “only upon the written certification that the particular undercover technique was
necessary for the conduct o f the undercover operation by the D irector o f the [FBI] and the A ttorney General
(or, if designated by the Attorney G eneral, the Deputy Attorney G eneral).” 92 Stat at 3466. In 1979, when
this section w as reenacted and am ended expressly to authorize the use o f corporations in undercover
operations, the certification authority was also am ended If so authorized by the Director, the A ssociate
D irector o f the FBI also was specifically authorized to certify the necessity for the use o f undercover
techniques. 93 Stat. at 1045-46. At that time, it does not appear that the certification requirem ent was
im posed on the use o f corporations.
In 1983, when this section was reenacted as § 205(b)(1) o f the D epartm ent’s appropriations act for fiscal
year 1984, Pub. L No. 98 -1 6 6 , 97 Stat. 1071, 1086-88 (1983), the certification requirem ent was changed
again to require certification o f the necessity for the use o f corporations and also to allow certification by:
the D irector o f the [FBI] (or, if designated by the Director, a m em ber o f the U ndercover
O perations Review Committee established by the A ttorney G eneral’s G uidelines on FBI U nder­
cover O perations, as in effect on July 1, 1983) and the Attorney General (or, if designated by the
Attorney General, a m em ber o f such Review Committee).
The D epartm ent’s fiscal year 1985 appropriations act continued these provisions 98 Stat. at 1559.
4 G iordano involved the authorization requirem ent o f the federal wiretap statute, Title III o f the Om nibus
C rim e Control and Safe Streets Act o f 1968, 18 U.S.C. § 2516(1), which em pow ers the “A ttorney G eneral, or
any Assistant Attorney General specially designated by the Attorney G eneral” to authorize an application to
a federal ju d g e for an order authorizing or approving a w iretap. The Supreme C ourt held that this provision
did not authorize approval by the Executive A ssistant to the Attorney G eneral. The Court also rejected, on the
facts o f the case, the A ttorney G eneral’s general authority over the Department o f Justice, see 28 U S.C
§ 509, and his general authority to delegate, see id. § 510, as bases for the authority to delegate.
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§ 510, Congress does not contemplate that the duties assigned to the Attorney
General may be freely delegated.” Id.
According to the Court in G iordano, precise language forbidding delegation
is not required. The Court held that the language of 28 U.S.C. § 2516(1) was
intended to limit the power to authorize wiretaps applications to the Attorney
General him self and to those identified in the statute. The Court also examined
the purpose and the legislative history o f the wiretap statute and concluded that
they supported this interpretation.
Applying these principles to your question of delegation, we conclude that
both the Attorney General and the Administrator of the DEA may delegate
their respective authority under § 203 to certify the necessity for the use of
undercover techniques. We reach that conclusion as follows.
As its plain language indicates, and as interpreted by the Court in Giordano,
in the absence o f a contrary congressional intent, 28 U.S.C. § 510 generally
authorizes the Attorney General to delegate the authority vested in him.5
Specifically, with regard to DEA functions, § 6 of Reorganization Plan No. 2 of
1973, reprinted in 28 U.S.C. § 509 note, provides that the Attorney General
may “make such provisions as he shall deem appropriate authorizing the
performance o f [drug enforcement] functions by any officer, employee, or
agency o f the Department of Justice.” The same principles apply to the Admin­
istrator, who is designated as the head of the agency, see id. § 5, and charged
with performing the functions vested in the Attorney General by the Reorgani­
zation Plan as well as other drug control laws, see 28 C.F.R. §§ 0.100, 0.101.
Thus, the Adm inistrator is authorized “to redelegate any of the powers and
functions vested in him by [the regulations].” Id. § 0.104.
Nothing in the language of § 203 discloses a congressional intent to preclude
delegation. There is, of course, no express preclusion of delegation, nor is there
any language comparable to the wiretap provision construed in Giordano
specifically identifying the persons to whom the authority conferred may be
delegated. Rather, § 203 on its face appears to reflect the common legislative
practice o f conferring general authority upon the head of a department or
agency at the time that Congress specifically confers a new power by statute or
creates a statutory duty, with the common practice thereafter being delegation
within that department or agency of the authority conferred or duty imposed
upon its head.6
5 Section 510 provides: “The Attorney G eneral may from tim e to tim e make such provisions as he considers
appro p riate authorizing the performance b y any other officer, em ployee, or agency o f the Department of
Justice o f any function o f the Attorney G en eral.”
6 It is not necessary to determ ine here w h eth er the language regarding delegation in the F B I's authorization
w ould preclude further, o r different, delegation. W e note, how ever, that with regard to the FBI, we find
nothing to indicate a congressional intent to preclude any other delegation. As we understand it, the language
that C ongress adopted w as proposed by th e FBI when it was first enacted and on both occasions when it was
changed, and it is reasonable to conclude th a t Congress intended solely to authorize what the Department
asked fo r and d id not intend to preclude o r lim it delegation. M oreover, we have found nothing in the purpose
or legislative history o f the certification requirem ent applicable to the FBI to com pel the conclusion that
delegation o f the certification authority w as intended to be lim ited to only the persons specifically mentioned.
Continued
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Nor have we discerned anything regarding the purpose of § 203 that sup­
ports, much less compels, the conclusion that Congress intended to preclude
delegation by the Administrator or the Attorney General. Unlike Title III,
which was enacted specifically to impose stringent lim itations on the
Department’s prior practices regarding warrantless wiretaps, specific proce­
dures to obtain authorization for a wiretap, and vigorous penalties for violation
of those procedures, § 203 was enacted to exempt the DEA from limitations
imposed by general statutory provisions that might otherwise be thought to
preclude the use of the four undercover techniques. In other words, the purpose
of § 203 was to expand the agency’s authority, not to restrict it. It is therefore
not necessary to construe the legislation as imposing the same type of restric­
tions on the exercise of that authority as the Court felt to be required in
Giordano.
Finally, we have examined the legislative history of § 203 as it relates to the
DEA and have discovered no statements of congressional intent to preclude
delegation. As we understand it, in its legislative proposal within the Depart­
ment, the DEA requested the authority to employ the undercover techniques,
and the Department’s draft bill as introduced in the Senate authorized certifica­
tion by the Administrator “or by a person designated to act for the Administra­
tor in his absence.” S. 1191, 98th Cong., 1st Sess. § 600(a)(4), 129 Cong. Rec.
10616, 10620 (1983). No further action was taken on this bill, however, and the
undercover authorities and the certification requirement in Pub. L. No. 98-411
applicable to the DEA were added by the House Committee on Appropria­
tions.7 There are thus no express indications in the legislative history why the
Committee chose the language that it chose.8 Similarly, we have discovered no
6 ( . . . continued)
In this regard, we have exam ined the legislative history o f the fiscal year 1979 appropriations authorization
act, which first conferred the authority on the FBI to engage in undercover techniques, see S. Rep. No. 911,
95th C ong., 2d Sess. (1979); H.R. Conf. Rep. No. 1777,95th Cong., 2d Sess. (1979), the legislative history o f
the fiscal year 1980 act, w hich expressly authorized the D irector o f the FBI to designate the A ssociate
D irector to certify the necessity for the use o f undercover techniques, see S. Rep. No. 173, 96th Cong., 1st
Sess. 30-31 (1979), reprinted in 1979 U .S.C.C.A.N . 2003, 2 0 3 2 -3 3 , H.R. Conf. Rep. No. 628, 96th Cong.,
1st Sess. 3 (1979), reprinted in 1979 U .S.C.C.A.N . 2044, 2047, and the legislative history o f the fiscal year
1984 act, which changed the express delegatee for both the Attorney General and the D irector to a m em ber of
the U ndercover O perations Review C om m ittee, see H.R. Conf. Rep. 4 7 8 ,98th Cong., 1st Sess. 28 (1983). See
generally supra notes 1 & 3.
In none o f these reports have we discovered any express indication that Congress intended to preclude or
lim it delegation, to require the Director, the Attorney General, o r the delegatee specifically m entioned
personally to exercise the authority conferred, or to require the certification to be made “at the highest level"
or words to that effect.
7The provision does not appear in the bill as reported by the subcom m ittee to the full C om m ittee on M ay 9,
1984, but it does appear in the bill as reported by the Com m ittee to the full House on M ay 23, 1984. The
C om m ittee's report on the bill, H.R. Rep. No. 802, 98th Cong., 2d Sess. (1984), does not discuss the
provision as to the DEA.
8The com parable provision relating to the FBI has appeared in three different statutes, but none o f them use
exactly the language adopted in § 203 applicable to the DEA. It is clear that the structure for delegation
envisioned by the language enacted w ith regard to the DEA could not have been made precisely parallel to
that o f the FBI because the DEA does not utilize an undercover operations review com m ittee. To the extent
that the H ouse A ppropriations Com m ittee had in mind the history o f the F B I's authority, several different
conclusions are possible.
C ontinued
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statements applicable either to the FBI, in the legislative history of the various
authorization and appropriations acts since 1979, or to the DEA, in the legisla­
tive history of § 203, that disclose a congressional intent to preclude delegation
or to require the exercise of the authority personally by the officials named. See
supra note 6.
We therefore conclude that both the Administrator of the DEA and the
Attorney General may delegate the authority to certify the necessity for the use
o f undercover techniques conferred upon each of them by § 203 of Pub. L. No.
98-411.
R alph W . T arr
D eputy Assistant Attorney General
Office o f Legal Counsel
8 ( . . . continued)
In the absence o f a request by the DEA f o r specific m ention in the authorization o f officials to whom the
authority co u ld be delegated, the Committee could have specifically intended to choose language that would
leave the A dm inistrator o f the DEA and the A ttorney G eneral the most free to delegate their authority.
A lternatively, know ing th at the provision relating to the FBI had been am ended tw ice as the FBI gained
experien ce in ad m inistering the certification requirem ent, th e Com m ittee could have assum ed that the
inclusion in the F B I’s authority o f specific, nam ed officials d id no more than reflect the current practice at the
FB I; there w as no such p ractice at the DEA to reflect in the language o f § 203. Other conclusions are no doubt
also possible. G iven the variety o f possibilities, any attem pt to draw a firm conclusion regarding delegation
by the A d m in istrato r and the Attorney G eneral by com parison to the com parable FBI provision seems futile.
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