Jurisdiction and Procedure of the Office of the Assistant Solicitor General ( 1939 )

Jurisdiction and Procedure of the Office of the
Assistant Solicitor General
This memorandum summarizes the authorities and internal operating rules for the Office of the
Assistant Solicitor General, the predecessor entity within the Department of Justice to the Office of
Legal Counsel. Although the litigation functions have largely been shifted to other components,
many of the other practices and procedures described in this memorandum (in particular, preparation
of opinions and review of executive orders) remain in place to the present day.
June 1, 1939
MEMORANDUM FOR THE OFFICE OF THE ASSISTANT SOLICITOR GENERAL
In the belief that it will be of assistance to this office both now and in the future
to have in written form an outline of its jurisdiction and procedure, I am setting
down the matters which now are assigned to it and the manner in which they are
now handled. Of course, hereafter the assignments to the office may be increased
or decreased and it may be found advantageous to make changes in the present
procedure of the office; but a description of the present jurisdiction and practice
will be useful as a basis for future action—particularly for successors to me and
additions to the staff of the office.
I.
Procedure in Handling Special Assignments
The act creating the office of the Assistant Solicitor General (Independent
Offices Appropriation Act, 1934, Pub. L. No. 73-78, § 16, 48 Stat. 283, 307–08
(June 16, 1933), codified at 5 U.S.C. § 293a (1934)) provides that he is to assist
the Solicitor General in the performance of his duties and perform such additional
duties as may be required of him by the Attorney General. By Departmental Order
2507 of December 30, 1933, it was provided that the Department should consist,
among others, of the Office of the Assistant Solicitor General, and its functions
were set forth in Exhibit A accompanying that order as:
1. Such matters (including briefs and arguments in the Supreme
Court) as may be assigned by the Solicitor General.
2. Executive orders.
3. Compromises.
4. Preparation of opinions.
5. Special assignments by the Attorney General.
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It will be noted that divisions 1 and 5 comprehend assignments of any character
upon which either the Attorney General or the Solicitor General desires assistance.
Divisions 2 (which comprehends also proclamations), 3, and 4 are more specific
and the procedure in handling those matters will be indicated under separate
headings. Because the assignments under 1 and 5 are so miscellaneous in charac-
ter, it is impossible here to do more than mention some that are more or less
typical. In general the office procedure and mechanics indicated under the other
headings cover that applicable to these two.
A standing assignment from the Solicitor General is the preparation of recom-
mendations by this office to him for or against the taking of appeals from the
United States Customs Court to the Court of Customs and Patent Appeals; this
assignment will be handled under a separate heading hereafter. See infra Part VI.
A standing assignment from the Attorney General is the handling of gifts,
bequests, and devises to the United States, and this also will be handled under a
separate heading hereafter. See infra Part VII.
In April 1936 the Attorney General began sending to this office for its recom-
mendation for or against allowance of claims presented under the Trading with the
Enemy Act, as amended, for the return of property seized by the Alien Property
Custodian during the World War. Since Executive Order 8136 of May 15, 1939, 3
C.F.R. 500 (1938–1943), however, these claims rarely go through this office.
Acting Attorney General. By Departmental Order 2860 of June 20, 1936, the
Assistant Solicitor General is Acting Attorney General in the absence of the
Attorney General and the Assistant Attorneys General.
Acting Solicitor General. By Departmental Order 2869 of July 7, 1936, in the
absence of the Solicitor General, the Assistant Solicitor General is Acting Solicitor
General.
Supreme Court Cases. From time to time the Solicitor General may assign to
this office the preparation and argument of cases in the Supreme Court. Generally
the briefs in such cases have been prepared in the division which has handled them
in the lower courts and reviewed by a member of the Solicitor General’s staff.
Sometimes opportunity is afforded in cases assigned to the Assistant Solicitor
General for argument to revise the briefs before they are printed, in which event
this office makes such changes as it deems desirable if approved by the Solicitor
General. The Assistant Solicitor General argues the cases personally unless
assigned by the Solicitor General to a member of the staff of this office. He is
assisted in the preparation for argument by such members of the staff of this office
or of that of the Solicitor General’s as he may call upon.
Intradepartmental Opinions. Requests frequently are received from the Attor-
ney General, the Solicitor General, or the heads of the respective divisions or
bureaus for opinions presented in the administration of this Department. Some-
times the President may desire informal advice and either a memorandum prepared
in this office directed to the Attorney General or in blank is transmitted to the
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President with a covering communication from the Attorney General, or the
Attorney General orally advises on the basis of such memorandum. When such
matters are received in this office, they are assigned to one or more of its attorneys
who prepare the required memoranda for transmission by the Assistant Solicitor
General.
Committees. The Assistant Solicitor General or members of his staff sometimes
are appointed to represent the Attorney General on committees of various kinds. In
such event they attend committee meetings and actively assist in their work.
Preparation of Proposed Legislation. Sometimes the Attorney General calls
upon this office to draft or to assist interested departments or agencies to draft
legislation to be submitted to the Congress.
II.
Procedure in Handling Proposed Executive Orders
and Proclamations
Authority of the Attorney General for Considering Proposed Executive Orders
and Proclamations. Executive Order 7298 of February 18, 1936, requires that all
executive orders and proclamations be submitted to the Attorney General for his
consideration as to form and legality before submission to the President. This order
superseded Executive Order 6247 of August 10, 1933, which contained a similar
provision.
Reference to the Attorney General. Paragraph 2 of the said Executive Order
7298 provides that proposed executive orders and proclamations shall first be
submitted to the Director of the Bureau of the Budget and that after he approves
them he shall transmit them to the Attorney General for his consideration. The
Attorney General has assigned the function of considering proposed orders and
proclamations to the Office of the Assistant Solicitor General.
File Numbers. Upon receipt of the proposed order or proclamation in the
Office of the Attorney General it is sent to the Division of Records, where it is
given the proper file number and then transmitted to this office. If the order is
deemed urgent, it is sent directly to this office from the Attorney General’s office,
and is not given a file number until after it has been disposed of. In any event,
however, the order is given preferred attention in the Division of Records and is
sent to this office as expeditiously as possible.
Preliminary Examination. The attorney in this office to whom the order or
proclamation is assigned examines the order as soon as he receives it to determine
how expeditiously it should be handled. Frequently after it is received in the
Department of Justice the presenting agency requests that it be given preferred
attention in this Department so that it may reach the White House as soon as
possible. All proposed orders and proclamations are handled as promptly as
possible whether considered urgent or not.
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Views of Other Officers. In some cases, because of the nature or subject matter
of the order, it is referred to another division or divisions in the Department for
their views and recommendations. This is particularly true in regard to orders
involving public land, such orders being occasionally referred to the Lands
Division. In other cases, because of doubtful legal questions involved, the head of
the presenting department or agency is requested to furnish an opinion of its chief
law officer as to the legality of the order or proclamation.
Consideration and Revision. In accordance with the requirements of Executive
Order 7298, this office considers proposed orders and proclamations as to both
form and legality. It is first determined whether the order is legally authorized. If it
is found to be without sufficient legal authority, the presenting agency is informal-
ly notified of the Department’s views and consideration is given to the question
whether the order can be modified so as to eliminate the legal objections. If this
cannot be done so that it is satisfactory to the presenting agency, the order is either
withdrawn by the presenting agency or returned with a letter of the Attorney
General setting forth the legal reasons why the order cannot be approved.
If the order is found to be legally unobjectionable there is for determination the
question whether it should be revised as to form. It has been found that in the vast
majority of cases revision as to form and language is necessary, although the order
may be without legal objection. Section 1 of Executive Order 7298 provides that
proposed orders and proclamations shall be prepared in accordance with certain
formal requirements, for example, the authority under which it is issued must be
cited, it must be typewritten on paper of a certain size, and matters of style
(punctuation, capitalization, spelling, etc.) must conform to the Government
Printing Office style manual. The instrument is revised to conform to these more
or less mechanical requirements. However, the most important function in revision
is to give the order or proclamation the proper language and structure. The aim is
to make it clear and unambiguous by conforming it to all the principles of good
writing and good composition. Generally, revisions in form are made without
consultation with or the consent of the presenting agency; in some cases, however,
the changes are so extensive that the revision is referred informally to the present-
ing agency for its approval. In no case is a change made in the substance of the
order without the approval of the presenting agency.
Submission to the Attorney General. After the proposed order or proclamation
has been properly revised, in case revision is necessary, it is submitted, with four
carbon copies thereof (three of which accompany the original to the White House),
to the Attorney General by memorandum of the Assistant Solicitor General, which,
ordinarily, contains a description and explanation of the order and a citation and
discussion of the law under which the order is authorized. Accompanying the
memorandum to the Attorney General is a draft of a transmittal letter to the
President for the signature of the Attorney General if the order is approved by him.
This letter ordinarily contains an explanation of the order and states that it is
approved as to form and legality.
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Opinions. In a considerable number of cases where difficult points of law are
involved the Attorney General in his letter to the President expresses his opinion in
some detail on the legality of the order—such opinions being similar in all
essential respects to opinions expressly requested of the Attorney General by the
President. Such opinions may or may not be published, according to the general
principles governing the publication and non-publication of opinions of the
Attorney General.
Transmission to Mail Room. When the transmittal letter to the President is
signed by the Attorney General, it is sent, together with the memorandum and the
proposed order, to the mail room for proper recordation. In accordance with the
said Executive Order 7298 it is then transmitted to the Division of the Federal
Register, National Archives, which in turn forwards it to the White House. In some
urgent cases the proposed order is brought to this Department by a representative
of the Bureau of the Budget, who desires to carry the order to the White House
after it is approved by the Attorney General and the Division of the Federal
Register. In such cases the order is returned to this office by the office of the
Attorney General and then delivered to the representative of the Bureau of the
Budget.
Publication and Printing. In conformity with the requirements of the Federal
Register Act approved July 26, 1935 (Pub. L. No. 74-220, § 5(a)(1), 49 Stat. 500,
501), all executive orders and proclamations having general applicability and legal
effect are published in the Federal Register. All other orders and proclamations are
printed and copies thereof furnished this office.
File and Index. The chief attorney of this office maintains a complete file of all
proposed Executive orders and proclamations handled by this office, together with
copies of all memoranda to the Attorney General and transmittal letters to the
President. Such correspondence is filed in loosely bound volumes, each volume
containing the correspondence for one calendar month. In addition, the chief
attorney maintains a separate record of all proposed executive orders and procla-
mations submitted by this office to the Attorney General. A topical index of all
proposed executive orders and proclamations handled by this office is being
prepared under the direction of, and will be maintained by, the chief attorney.
Informal Submission to this Office. In a considerable number of cases pro-
posed orders or proclamations are informally submitted for the consideration of
this office either as to form or legality, or both. As an accommodation to and for
the convenience of the presenting agency, an attorney of this office revises the
draft so submitted or suggests changes therein. In some cases, also, this office is
informally requested to draft or aid in the drafting of a proposed order or procla-
mation before its formal submission.
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III.
Procedure and Jurisdiction in Handling Offers in
Compromise
Thoroughness and Expedition. In the handling of offers in compromise the
primary purpose of the Department is to act for the best interests of the United
States. Final action on offers in compromise should be expedited as much as
possible, always consonant, of course, with thorough and careful consideration of
the facts and the law involved. Expedition benefits both the government and the
citizen.
Order of Procedure. When an offer in compromise is received in the Depart-
ment to pay the government an amount in satisfaction of a claim by it, or to accept
from the government an amount in satisfaction of a claim against it, the offer is
referred to the division or bureau in the Department which handles that type of
case. There it is studied and further investigated if necessary. Then the offer is
transmitted to the Assistant Solicitor General with the file and the recommendation
of the head of the division or bureau for acceptance or rejection of the offer. In the
office of the Assistant Solicitor General the case is assigned to an attorney for
careful review. If the case is complicated, or there is doubt respecting the recom-
mendation, frequently it is reviewed in the Assistant Solicitor General’s office by
more than one attorney. Then it is submitted to the Assistant Solicitor General with
the recommendation or recommendations of the reviewer or reviewers and he
either accepts or rejects the offer or makes his recommendation to the Attorney
General, depending on the amounts involved as hereinafter noted. If within the
final jurisdiction of the Assistant Solicitor General, his office then transmits it back
to the division or bureau from which it came. If the amounts bring the case within
the Attorney General’s exclusive jurisdiction, after he has acted on the Assistant
Solicitor General’s recommendation, the case is referred back to the division in
which it originated through the Assistant Solicitor General’s office, in order that it
may be advised of the action of the Attorney General.
Recommendations of U.S. Attorneys, etc. If an offer in compromise grows out
of a case pending in the office of a United States Attorney, it is usually referred to
that official for his recommendation. In war risk insurance cases the United States
Attorney’s recommendation is required by statute. It is also customary, with the
exception of war risk insurance cases, to refer the case to the department or bureau
in which it originated for comment on the offer. Although this Department is not
bound by the recommendations of other departments or bureaus, careful considera-
tion is given to their recommendations.
Tenders with Offers. In any case involving a claim in favor of the United
States, the amount offered in compromise should be submitted with the offer.
Occasionally the Department accepts an offer which is to be paid on the install-
ment basis. In such cases it is desirable that the installment payments should not be
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extended over a period of more than one year. Unless the full amount of an offer is
paid at the time of acceptance, suits are not dismissed and judgments are not
entered as satisfied on the record until the full amount of the offer has been paid.
Jurisdiction of the Assistant Solicitor General. By Departmental Order 2873
of July 14, 1936, the Attorney General authorized the Assistant Solicitor General
to take final action on offers in compromise in cases involving claims in favor of
the United States not exceeding $50,000 and in cases involving claims against the
United States where the amount of the proposed settlement does not exceed
$10,000. By the same order the Attorney General authorized United States
Attorneys to compromise directly Indian claims and security and farm credit loan
claims in cases not exceeding $500 upon the recommendation of the Superinten-
dent of the local Indian agency or the local representative of the administration
which made the loan, respectively. In all other cases action by the Attorney
General is required.
Attorney General’s Compromise Power. The authority of the Attorney General
to compromise claims in favor of and against the United States is derived in part
from statutes and in part from the inherent power in the office. The power to
compromise granted to the Secretary of the Treasury and other officers under the
provisions of such statutes as sections 3229 and 3469 of the Revised Statutes
(2d ed. 1878), 18 Stat. pt. 1, at 620, 688 (repl. vol.); section 617 of the Tariff Act
of June 17, 1930, Pub. L. No. 71-361, 46 Stat. 590, 757; and section 9 of the Suits
in Admiralty Act of March 9, 1920, Pub. L. No. 66-156, 41 Stat. 525, 527–28, was
transferred to the Attorney General in connection with any case referred to the
Department of Justice by Executive Order 6166 of June 10, 1933. Thus, once a
case is referred to the Department of Justice for action, the power to compromise
that case is vested in the Attorney General regardless whether some other officer
had power to compromise it prior to the reference. The Attorney General has direct
statutory power to compromise yearly term war risk insurance cases after suit has
been instituted under the Act of June 16, 1933, Pub. L. No. 73-78, 48 Stat. 283,
302, as amended by the Act of February 24, 1938, 52 Stat. 81 (codified at 38
U.S.C. § 445(b)), and also suits brought under the Public Vessels Act, Pub. L. No.
68-546, 43 Stat. 1112 (codified at 46 U.S.C. § 786). The Attorney General under
his broad primary power also has authority to compromise any case which has
been referred to him for litigation and matters germane thereto. See Compromise of
Claims Under Sections 3469 and 3229 of the Revised Statutes—Power of the
Attorney General in Matters of Compromise, 38 Op. Att’y. Gen. 98 (1934)
(Cummings, A.G.).
Basis for Acceptance. Claims in favor of or against the United States cannot be
compromised unless there is a sufficient basis for such action. Mere considerations
of equity, hardship, sympathy, etc. do not furnish such a basis. In cases involving
claims by the United States to justify compromise it must be shown (1) that a
judgment in all probability cannot be recovered, or (2) that a judgment, if recov-
ered, in all probability cannot be collected. The question whether a judgment can
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be recovered usually depends upon legal or factual considerations. If the law as
laid down by the courts is contrary to the government’s contentions or if the
government does not have the requisite testimony to prove its case within a
reasonable certainty, there is sufficient doubt as to the ability of the government to
recover a judgment to justify compromise. If there is little or no doubt that the
government can recover a judgment, compromise can only be made when it
appears improbable that more than the amount offered can be collected. In cases
involving insolvent defendants, the government has the right of priority under the
provisions of section 3466 of the Revised Statutes (2d ed. 1878), 18 Stat. pt. 1, at
687 (repl. vol.), and if the defendant’s property is not covered by prior liens, the
government under its right of priority may be able to collect even though he is
insolvent. However, as against insolvent banks, the government may not collect
tax claims if to do so will diminish the assets necessary to pay the depositors. See
12 U.S.C. § 570.
With reference to claims against the United States, the only question to be
considered is whether the United States can successfully defend, since in such
cases there is no question of collectibility. Claims against the United States may
not be compromised without express statutory authority unless there is an appro-
priation available to pay them. Ordinarily claims against the United States are not
compromised by the Department until suit has been instituted. The statutes which
expressly authorize the Attorney General to compromise so provide. In other cases
the claims are not referred here until suit has been instituted. See Annual Report of
the Attorney General, 1938, at 77.
Criminal Cases. Criminal cases may not be compromised without express
statutory authority. The only class of criminal cases which Congress has author-
ized government officers to compromise are those arising under the Internal
Revenue laws. See section 3229 of the Revised Statutes; section 7 of the Federal
Alcohol Administration Act, Pub. L. No. 74-401, 49 Stat. 977, 985–86 (codified at
27 U.S.C. § 207). In connection with income, gift, and estate tax cases, the policy
of the Department is not to accept money in compromise of criminal liability. If
the case is one where successful prosecution is unlikely, the case may be compro-
mised by payment of an amount not less than the government could otherwise
collect. If the case is one wherein prosecution is likely to be successful, the
Department will accept only the maximum amount of the taxes, penalties, and
interest which the taxpayer can pay, together with a plea of guilty or nolo conten-
dere. After compromise the case is submitted to the court by the United States
Attorney without any recommendation for or against leniency. In connection with
minor liquor tax violations, the Department accepts amounts of money in com-
promise of criminal liability in appropriate cases. See Annual Report of the
Attorney General, 1938, at 76, 92, 200.
War Risk Insurance Cases. As heretofore stated, the Attorney General is au-
thorized by law to compromise any suit brought under the provisions of the World
War Veterans’ Act, 1924, Pub. L. No. 68-242, 43 Stat. 607 (as amended), on a
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contract of yearly renewable term insurance, upon the recommendation of the
United States Attorney charged with the defense, for sums within the amount
claimed to be payable. The maximum face value of such a contract is $10,000.
This authority does not extend to suits brought on converted policies. The Veterans
Administration’s files in cases recommended by the United States Attorney for
acceptance are referred to the Bureau of War Risk Litigation for use of the
Director in preparing his recommendation to the Assistant Solicitor General upon
the merits of the claim. Since the plaintiffs in these suits are entitled to trial by
jury, each case is examined, after investigation by the Federal Bureau of Investiga-
tion, to determine whether plaintiff has sufficient evidence to make a prima facie
case for a jury and whether such evidence is sufficient to support a verdict. In
those cases where it appears that plaintiff can get his case to a jury and it seems
probable that a verdict would be returned in his favor, the compromise offer, if
reasonable, is accepted. Action by the Assistant Solicitor General for the Attorney
General is final, unless the amount to be paid out exceeds (as is rarely the case)
$10,000. Where acceptance is indicated, the Assistant Solicitor General signs a
written consent to enter judgment. The case is then referred back to the United
States Attorney for entry of judgment against the United States. See Annual Report
of the Attorney General, 1938, at 202.
Note. Assistant Solicitor General Bell discussed the general subject of com-
promise before a conference of United States Attorneys in Washington on April
21, 1939. That discussion is to be printed and reference may be made to what was
then said by him and the heads of other divisions and bureaus on the subject.
IV.
Procedure in Handling Opinions
Prime Purpose. In the preparation and publication of opinions requested by the
President and the heads of the executive departments, including the Veterans
Administration, the following steps ordinarily are taken in the order in which they
are set forth; but this detail and routine is not permitted to interfere with the
accomplishment of the prime purpose—the prompt preparation of well considered
opinions.
Weekly Report. The weekly report of this office to the Attorney General should
show file numbers and (l) all opinions completed and sent to the Attorney General
during the week; (2) all opinions transmitted to the Chief Clerk for publication;
and (3) all opinion requests pending, from whom and when received, when
acknowledged, present status and the estimated date of completion. (For form see
previous weekly reports.)
File Numbers. Requests for opinions are routed to the Assistant Solicitor Gen-
eral, sometimes directly from the Attorney General’s office and sometimes
through the Division of Records. In the latter case, file numbers are assigned by
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the Division of Records. If no file number has previously been assigned, the papers
are forwarded to the Division of Records for this purpose.
Acknowledgment. If an opinion is to be rendered but cannot immediately be
prepared because of the necessity for study, etc., an acknowledgment of the
request should be made without delay.
Unauthorized Requests. If the request is from an officer or other person not
authorized by law to require opinions of the Attorney General, a letter is prepared
acknowledging the request and then stating, with such variations as the case and
courtesy may require:
The Attorney General is authorized by statute to give opinions only
to the President and the heads of the executive departments. He
would like to be of service to you but I am sure you will feel, as he
does, that he ought not depart from the prevailing practice.
It is the practice, however, to supply any helpful information that may be availa-
ble, particularly if the request is from a member of the Congress; and if the request
is from the head of an independent establishment other than the Veterans Admin-
istration (which is authorized by law to obtain opinions) the suggestion is often
made, either within the letter or otherwise informally, that under established
practice opinions required for the guidance of the independent establishments may
be requested by the President, if he deems it proper, upon suggestion from the
agency concerned.
Questions upon Which Opinions Not Rendered. If the request is from an
officer authorized to obtain opinions it is considered and determined, under the
principles laid down by the Attorneys General regarding the non-rendition of
opinions in certain circumstances, whether the question is moot, pending in court,
etc. The circumstances may be such, moreover, as to require an opinion showing
the reasons why the opinion asked should not be rendered. A controlling principle
in this connection, however, is that if the officer is charged or confronted with the
duty of taking some present step or making some present determination he is
entitled to whatever advice the Attorney General can furnish to guide him,
although it may not amount to a categorical opinion upon the precise question of
law involved. (For illustrations, see Exhibit A annexed.)
Views of Chief Law Officer. If additional information is required or if the
views of the chief law officer of the affected department have not been furnished
in accordance with the established practice, this information is requested in the
letter of acknowledgment. The practice is reflected by the following: letters of
October 15, 1906, signed by Acting Attorney General Purdy, and September 15,
1924, signed by Attorney General Stone, addressed to the heads of the executive
departments and independent establishments; printed “instructions” (not dated)
issued from the White House in 1918, addressed “to those who (though otherwise
not entitled to an opinion) have asked the President to secure an opinion from the
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Attorney General,” directing that “if there is a law clerk or officer, or person acting
as such, for the officer or board seeking the submission, his opinion, covering the
entire subject, with complete data . . . should accompany the inquiry.” Special
Opinion Rules, Dep’t File No. 19-012. Also see the more recent letter of March 6,
1939, addressed to the Administrator of Veterans Affairs. Dep’t File No. 19-33-64.
Views of Other Officers. It is also considered at this time whether the views of
any other department or officer are necessary or would be helpful; if so, letters to
them asking their views are prepared and the officer requesting the opinion so
advised. Frequently the requesting officer or his staff is orally consulted for further
light on the request.
A memorandum is also prepared requesting the views of the Assistant Attorney
General or other officer of this Department concerned in the subject matter or
apparently in a position to afford helpful assistance.
Preliminary Study. Study in this division of the question involved is undertak-
en as promptly as possible, and is not deferred pending receipt of views and
information requested as above pointed out save only when and to the extent that
the exigencies require. In some cases tentative drafts of opinions are prepared in
advance of the receipt of such information and views.
Preparation of Opinion. As promptly as possible the attorney to whom the
matter has been assigned prepares (in rough draft or final form, depending upon
the exigencies) a completed draft of an opinion. In connection therewith he may,
and frequently does, consult the Assistant Solicitor General and other members of
the staff. When the draft is completed it is turned over to the Assistant Solicitor
General and by him carefully studied and subjected to such revision as he finds
proper. Frequently, and particularly in connection with questions that are difficult
or of major import, the Assistant Solicitor General obtains the independent views
of several or all the members of the staff. At times tentatively finished drafts may
be submitted to officers of the Department and other divisions for their comments
or suggestions. In some cases the general views of the Attorney General are
obtained preliminarily through the submission of memoranda, rough drafts or
conferences.
Avoidance of Conflicts with Briefs. Special effort is made to avoid conflicts
with positions taken by the Department in briefs filed in the courts. The Solicitor
General and members of his staff are consulted informally to such extent as the
exigencies warrant and in particular cases the completed draft of the opinion is
submitted to the Solicitor General before it is forwarded to the Attorney General.
Also, the Solicitor General is furnished a copy of the weekly report with red-
penciled references to the completed and pending opinions listed therein.
Uniformity in Citations, Capitalization, etc. In order to achieve greater uni-
formity and to obviate changes in the copy for the printer, all attorneys and
stenographers have been instructed to adhere rigidly to the Government Printing
Office style manual in the matter of capitalization, punctuation, etc., and to
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observe prescribed uniform methods of citing the United States Code, the Statutes
at Large, opinions of the Attorney General, the reported cases, etc. The Printing
Office has also been requested to make any necessary changes in the matter of
capitalization and punctuation (e.g., placing of commas and periods in connection
with quotation marks, etc.).
Recommendation re Publication. If it is considered that the opinion should be
withheld from publication a memorandum embodying such recommendation and
addressed to the Attorney General accompanies the opinion. It is prepared by the
attorney to whom the opinion was assigned and is signed by the Assistant Solicitor
General. It provides on the bottom thereof a place for the Attorney General’s
indication of approval or disapproval of the recommendation.
If it is considered that the opinion should be published it is accompanied by a
letter for the Attorney General’s signature and directed to the officer to whom the
opinion is addressed, asking whether or not he perceives any objection to publica-
tion.
Opinions ordinarily are published, as provided by law (5 U.S.C. § 305), unless
they relate to matters deemed confidential or amount to mere practical suggestions
or informal advice of little or no value as a precedent.
Submission to the Attorney General. The proposed opinion with such recom-
mendation or letter respecting publication is transmitted with the complete file
relating to the matter to the Attorney General bearing a printed tag requesting
return to this office when acted upon.
When the proposed opinion reaches the Attorney General he subjects it to such
consideration and to such revision as he deems proper. It is perhaps a tribute to the
care displayed in the preparation of these drafts that they are usually approved and
signed by the Attorney General without revision.
Opinion Returned to Assistant Solicitor General. If the opinion is signed by
the Attorney General it is returned to this division in order that proper entries in
our records (i.e., record book in Assistant Solicitor General’s office and card index
in opinion section) may be made.
Opinion Transmission to Mail Room. Immediately after such entries have
been made the opinion is transmitted to the mail room for dispatch by messenger
to the addressee. The papers accompanying the opinion, together with a carbon
copy of the letter, are required by departmental rules to be sent with the opinion to
the mail room, where they are properly stamped—indicating the time that the
opinion leaves the Department—and thence go to the Division of Records for
recording and preparation of the file.
File Returned by Division of Records. The file, together with a carbon of the
record card, is transmitted by the Division of Records to this division.
Opinion Files Confidential. The opinion files are regarded as confidential and
there is affixed to each file in the Division of Records a pink label bearing the
following legend:
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Unpublished letters and memoranda in the opinion files must not be
cited or made public without approval by the Attorney General.
Questions relating thereto should be handled with the Assistant So-
licitor General.
Additional Verification if Publication Recommended. If publication of the
opinion has been recommended, the file copy of the opinion is now again verified
and citations and quotations checked against original sources.
Syllabi. Headnotes and title are prepared, and are approved or revised by the
Assistant Solicitor General.
Reference to Other Divisions. If the opinion affects or is of apparent interest to
other divisions or officers of this Department, including the Solicitor General, the
file is referred to them for noting and prompt return to this office.
Response to Letter re Publication. When response is received from the officer
to whom the opinion was addressed regarding publication his recommendation is
ordinarily followed as a matter of course. If he objects to publication the opinion
usually is not published, although this lies in the discretion of the Attorney
General. If he requests that it be withheld temporarily note is made to that effect
and the matter followed up by inquiry from time to time until publication.
Copies for Publicity Section and Law Week. If the opinion is to be published a
carbon copy is now sent to the United States Law Week and another to the
Publicity Section of the Attorney General’s office.
Mimeographed Copies. Mimeographed copies are prepared under the supervi-
sion of this division if required by the Publicity Section or if the matter is of such
nature that some immediate distribution is desirable or immediate requests for
copies appear imminent.
Copies to Chief Clerk for Printing. When released for publication a carbon
copy of the opinion with title and headnotes is transmitted by memorandum from
this division to the Chief Clerk with the request that he arrange for printing and
distribution.
Verification of Proof. The opinion is printed at the Government Printing Office
in pamphlet form. The proof is read and verified against the carbon copy of the
opinion in the office of the Chief Clerk, and is referred to this division for approval
before being returned to the Printing Office.
Distribution and Mailing List. Seven hundred twenty-five copies are ordinarily
printed. Approximately 650 copies are distributed to persons on the mailing list,
which is kept in the Chief Clerk’s Office but subject to supervision of this office—
leaving approximately 75 copies on hand to supply future needs and to fill requests
from persons (ordinarily officials) who are not upon the mailing list or require
copies additional to those ordinarily sent.
A separate mailing list for these opinions is also kept by the Superintendent of
Documents at the Government Printing Office, comprising largely private persons
433
Supplemental Opinions of the Office of Legal Counsel in Volume 1
(who pay a small fee), and libraries and other depositaries designated by statutes
which relate to official publications generally.
Bound Volumes and Digests
Same Type Used. The type used in printing the pamphlet is kept standing at the
Government Printing Office for eventual use in the printing of the bound volumes
of the opinions of the Attorney General—with such changes and corrections as
may subsequently be found necessary.
Additions and Corrections. The printed pamphlet opinion is carefully exam-
ined in this office and is verified against the carbon copy of the opinion as an
additional precaution against appearance of errors in the bound volume; also at
times it appears advisable to indicate some minor change or the addition of a
citation or footnote in the bound volume.
Setting up Type for Bound Volumes. From time to time copies of the pamphlet
opinions with running headlines and with such eliminations, additions and
corrections as may be necessary are transmitted by this office to the Government
Printing Office for setting up in paged form as they will appear in the bound
volume. The frequency with which this is done is dependent in part upon the
number of opinions, bearing in mind also that the effect of setting up the type for
the bound volume is to make impracticable the obtaining of any additional copies
in pamphlet form—an exigency which occasionally arises. Also the temporary
withholding of opinions for publication, or delay in obtaining approval of publica-
tion by the head of the Department affected, has bearing upon this.
Opinions Temporarily Withheld from Publication. An opinion withheld from
publication beyond the time when the opinions for that period are set up for the
bound volume must be (for reasons of practicability and economy) inserted in the
volume out of its ordinary order with respect to time. Formerly such opinions were
placed in the volumes as of the approximate time of their release for publication. It
has now been determined, however, that such delayed opinions will hereafter be
placed at the end of the volume, with proper notations.
Indices and Digests. As the printed pamphlet copies of opinions are received
from the Government Printing Office they are digested and indexed on cards (in
duplicate) and the cards filed in proper alphabetical order for use in printing the
index digest in the bound volume.
When the work of preparing the bound volumes, digests, etc., was transferred to
this office a little over a year ago it was assigned to Mr. Fowler for supervision and
execution with such assistance as should be found necessary and available. Some
changes in method and arrangement have been devised and approved.
Supplement to General Digest. It is contemplated that a supplement to the
general digest (now in course of preparation) will be issued as promptly as
possible after Volume 39 is completed, and that thereafter attention will be given
to the question of reissuance of the entire digest.
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Jurisdiction and Procedure of the Office of the Assistant Solicitor General
Unpublished Opinions
All opinions determined to be withheld from publication are carefully examined
and if they appear to be worthy of preservation as precedents copies are made and
bound with appropriate headnotes and indices for confidential use in this office.
This work is being performed by Mr. Arthur Robb, who is on the payroll of the
Administrative Division but has been assigned to the supervision of this office for
this purpose.
Important memoranda and opinions (intradepartmental) prepared by this office
for the assistance of the Attorney General and others, upon questions arising in this
Department or otherwise, are similarly preserved, bound and indexed, by Mr.
Robb under the supervision of this office. All such items since the establishment of
the office of the Assistant Solicitor General (January 1, 1934), and including in
addition some such memoranda and opinions prepared previously thereto in the
office of the Assistant Attorney General, Admiralty and Civil Division, have been
collected and are now in course of preparation for binding and indexing.
V.
Procedure in Handling Gifts, Bequests, and Devises
Unconditional gifts and bequests of personal property are accepted by the Sec-
retary of the Treasury and other administrative officers without express statutory
authority under a practice which has prevailed, with knowledge of and apparent
approval by the Congress, since the earliest days of the government. A few
statutes, mostly of recent origin, authorize acceptance of gifts, bequests and
devises by particular agencies. There is no general statute, but the enactment of
such a statute has recently been recommended by this Department. See Dep’t File
No. 103-01-1.
As cases arise and are brought to the attention of this Department (by other
departments of the government, or by United States Attorneys, or executors, or
counsel for executors, etc.) the United States Attorneys are instructed by letters or
telegrams prepared in this office to enter appearances on behalf of the government
to protect its interests. United States Attorneys when first confronted with a will
involving a bequest to the government are sometimes at a loss as to how to
proceed and it becomes necessary for this office to instruct them, pointing out the
applicable principles and practice, and at times to assist them in preparing
arguments in support of the government’s position. For some typical precedents,
see Dep’t File Nos. 103-11-1; 103-16-A; 103-9-1; 103-32-2; 103-51-10; 103-51-4.
In connection with gifts inter vivos this Department extends assistance only as
requested by the head of the department or agency concerned.
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Supplemental Opinions of the Office of Legal Counsel in Volume 1
VI.
Procedure in Handling Customs Cases
Appeals. The United States Customs Court has jurisdiction of cases involving
the classification and reappraisement of merchandise imported into the United
States. The decisions of the Customs Court are appealable to the Court of Customs
and Patent Appeals and may be taken from the latter court to the Supreme Court
on a writ of certiorari. These cases are handled by the Assistant Attorney General
in charge of the Customs Division located in New York City. In any case where
the decision is against the government and where the Assistant Attorney General
in charge of the Customs Division is of the opinion that an appeal should be taken,
he prepares a recommendation to that effect and transmits it to the Solicitor
General.
Such cases are referred by the Solicitor General to the Assistant Solicitor Gen-
eral where they are assigned to an attorney to prepare a recommendation for or
against the taking of an appeal. The case is then forwarded to the Solicitor General
who finally decides whether an appeal shall be taken. Such cases are briefed and
argued by representatives of the office of the Assistant Attorney General in charge
of customs matters. Cases wherein the plaintiff takes an appeal are not referred to
this office.
Petitions for Writs of Certiorari. Petitions for writs of certiorari filed by im-
porters in the Supreme Court are referred to the Customs Division in New York
where a tentative brief in opposition is prepared and forwarded to the Solicitor
General. These cases are then assigned to the Assistant Solicitor General who
revises the briefs and submits them to the Solicitor General before they are sent to
the Government Printing Office for printing. In cases wherein the government
might desire to petition the Supreme Court for a writ of certiorari, the Customs
Division in New York transmits the case to the Solicitor General with a recom-
mendation either for or against the filing of the petition. The Assistant Solicitor
General then prepares a recommendation to the Solicitor General who finally
decides whether or not a petition shall be filed.
Constitutional and Treaty Questions. All cases in the Customs Court wherein
there arises a question involving the constitutionality of a statute or the interpreta-
tion of a treaty or international agreement are referred to this office for considera-
tion before they are tried. If the case involves a treaty it is referred to the State
Department for its views with respect to the defenses to be imposed. If the case
involves a constitutional question it is carefully considered here in order that a
proper record may be made and all pertinent questions presented to the court in the
event the case should reach the Supreme Court of the United States. If the case is
an important one, this office actively assists the Assistant Attorney General in
charge of customs matters in the preparation of the brief.
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Jurisdiction and Procedure of the Office of the Assistant Solicitor General
VII.
Office Procedure and Mechanics
The staff of the office of the Assistant Solicitor General is not sufficiently large
to present any substantial problems of administration such as exist in divisions
having larger personnel, like the Lands Division, the Tax Division, etc. Therefore,
it will be necessary only briefly to indicate the manner in which the more or less
mechanical business of the office is carried on.
Care is taken to see that the general departmental orders respecting the handling
of files, correspondence, etc. are observed. Particular care is exercised to see that
in all official matters, copies of all correspondence, memoranda, etc. go into the
general files of the Department, whatever copies may be retained in this office.
The required and customary usage in these matters is observed.
Correspondence—Form. Where possible and when not in conflict with any
general departmental order, undue formality in the form of correspondence is
avoided: for instance, in the salutation it is generally preferable to say “Dear Mr.
Blank” rather than “Dear Sir” or “Gentlemen”; in closing, similarly, it is generally
preferable to use “Sincerely yours,” “Cordially yours,” etc. rather than “Yours
truly,” etc.
Messenger—Library—Supplies. The library of this office is very small, and it
depends primarily upon the main departmental library. The library is managed, as
are the office supplies of this office, by its messenger who performs the customary
duties of that position in securing books for members of the staff, furnishing them
with supplies, receiving and transmitting the mail, memoranda, etc.
Incoming Matter. All incoming official matter—mail, memoranda, compro-
mises, etc. (sometimes routed directly from the Attorney General’s office,
sometimes through the Division of Records, or in the case of intradepartmental
memoranda, from the various divisions and bureaus of the Department)—is
received in the head office of the Assistant Solicitor General, where it is stamped
in as of the date it is received and a written record made in various record books
which have been set up for the purpose. After such records have been made, the
mail is then routed to the Assistant Solicitor General and by him assigned to the
several attorneys in the division.
Outgoing Matter. All outgoing letters, memoranda, compromises, etc., in fact
all official matter leaving the division, is routed by the attorneys to the head office
of the Assistant Solicitor General. A written record is there made indicating the
date on which the matter is transferred from the attorney to the Assistant Solicitor
General. After being acted on by the Assistant Solicitor General, a further record is
made indicating the date on which the matter finally leaves the division. In order
that complete information may be available in the office, the practice has been
established whereby compromise cases requiring the approval of the Attorney
General and all opinions, which of course require his signature, are returned to this
437
Supplemental Opinions of the Office of Legal Counsel in Volume 1
office after being approved and signed by him and a record is made of the date of
his approval and signature.
Office Record Books
Assignment Book. On Monday morning of each week a typewritten assignment
sheet is made up for each attorney in the division. This sheet shows all official
matters pending with each attorney, the date on which assigned to him and their
general status. For each succeeding day of the week a pen-written record is kept
which shows assignments completed by, and new assignments to, each attorney in
the division. In this way a current record of the work being handled by each
attorney is available at all times.
Opinion Book. The opinion record book contains a separate typewritten sheet
for every official request for an opinion of the Attorney General, which, of course,
means requests from the President or the head of an executive department of the
government. The data kept on each such request is as follows:
1. Department of Justice file number.
2. By whom requested and date of request.
3. Subject matter of the request.
4. Date received in this office.
5. Name of attorney in this division to whom preparation of opinion
is assigned and date assigned.
6. Date on which draft of opinion is submitted to Attorney General.
7. Date opinion is signed by the Attorney General.
Executive Order & Proclamation Book. The executive order and proclamation
record book contains data similar to that kept in the opinion book and is as
follows:
1. Department of Justice file number.
2. Executive order number (available after Order is printed in the
Federal Register).
3. Subject matter and by whom order is presented.
4. Date received in this office.
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Jurisdiction and Procedure of the Office of the Assistant Solicitor General
5. Name of attorney in this Division to whom assigned and date as-
signed.
6. Date on which order with proposed letter of transmittal to the
President is submitted to Attorney General for approval.
Compromise Books. Compromise cases are referred to this office from the
several divisions and bureaus in the Department and separate data is kept in record
books according to the particular division or bureau from which they emanate.
Generally the following information is noted for the records of this office:
1. Title of case.
2. Date received in this office.
3. Whether claim is for or against the government.
4. Amount involved.
5. Amount offered in compromise.
6. Acceptance or rejection of offer by Assistant Solicitor General and
date such action taken.
When offers in compromise require final action by the Attorney General upon the
recommendation of the Assistant Solicitor General, notation is made of the date on
which they are submitted to the Attorney General. When final action has been
taken by the Attorney General, the cases are returned to this office where a record
is made of his action in the matter and of the date on which he acted. The cases are
then returned to the respective divisions or bureaus from which they originated.
Custom Appeals Book. As one of the regular assignments of this office is to
make recommendations to the Solicitor General as to whether appeals should be
taken in customs cases, a record book is maintained containing the following
information respecting each case submitted:
1. Title of case.
2. Date received in this office.
3. Date on which appeal expires.
4. Date on which recommendation of Assistant Solicitor General for
or against appeal is submitted to Solicitor General.
5. Date on which Solicitor General acts on above recommendation.
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Supplemental Opinions of the Office of Legal Counsel in Volume 1
6. Date of letter to the Assistant Attorney General, in charge of Cus-
toms matters, New York, advising of the Solicitor General’s decision
in each case.
Reports to the Attorney General
Annual. At the end of each fiscal year an annual report of the work performed
by each division and bureau of the Department is submitted to the Attorney
General for inclusion in his annual report to the Congress. The report for the
division of the Assistant Solicitor General is prepared in narrative form and under
headings which show the type and amount of work performed by the office. See
Annual Report of the Attorney General, 1938, at 26.
Quarterly. Commencing with July 1 of each fiscal year quarterly reports are
prepared for the Attorney General. These reports are purely statistical in form and
are divided into two parts, the first showing, under the proper headings, the
number of assignments completed during the year up to and including the date
ending the quarter; and the second showing the number of assignments pending as
of the date ending the quarter. Such quarterly reports facilitate the preparation of
the annual report. (See those heretofore made.)
Weekly. A report of completed and pending assignments is submitted to the
Attorney General at the close of every week during the year. This report, like the
quarterly reports, is divided into two parts, the first showing matters completed
during the week; and the second showing matters pending at the end of the week.
The data contained in the weekly report is grouped under five main headings, as
follows:
1. Executive orders and proclamations.
2. Opinions.
3. Compromises.
4. Special Assignments from the Attorney General.
5. Special Assignments from the Solicitor General.
Every assignment completed during the week is listed under one of the above
headings so that by consulting the report the amount and type of work performed
by the division for any given week can easily be determined; in the same way, the
amount and type of matter pending in the division at the end of any given week
can easily be determined. (See those heretofore made.)
GOLDEN W. BELL
Assistant Solicitor General
440
Jurisdiction and Procedure of the Office of the Assistant Solicitor General
EXHIBIT A
Statutory Limitation on the Power of the Attorney
General to Render Opinions
Section 35 of the Act of September 24, 1789, ch. 20, provides, in part:
And there shall also be appointed a meet person, learned in the law,
to act as attorney-general for the United States, who shall be sworn
or affirmed to a faithful execution of his office; whose duty it shall
be . . . to give his advice and opinion upon questions of law when re-
quired by the President of the United States, or when requested by
the heads of any of the departments, touching any matters that may
concern their departments . . . .
1 Stat. 73, 92–93.
The provisions of the above statute were brought forward in sections 354 and
356 of the Revised Statutes (2d ed. 1878), 18 Stat. pt. 1, at 60 (repl. vol.), and later
in sections 303 and 304 of title 5, U.S. Code.
For more than a hundred years the above-quoted statute has been construed by
the Attorneys General as limiting their power to render opinions. In an opinion
dated June 12, 1818, Attorney General Wirt said:
Under this law, which is the only one upon the subject, I do not think
myself authorized to give an official opinion in any case, except on
the call of the President, or some one of the heads of departments;
and I should consider myself as transcending the limits of my com-
mission in a very unjustifiable manner, in attempting to attach the
weight of my office to any opinion not authorized by the law which
prescribes my duties.
Office of Attorney General, 1 Op. Att’y Gen. 211, 212 (1818).
Again, in an opinion dated September 14, 1821, Mr. Wirt said:
This act limits me to questions of law propounded by the President
and heads of departments; . . . no officer should be permitted to
stretch his authority and carry the influence of his office beyond the
circle which the positive law of the land has drawn around him.
Office of Attorney General, 1 Op. Att’y Gen. 492, 492–93 (1821).
Subsequent Attorneys General have generally followed the rule thus laid down
by Mr. Wirt. That the Congress has considered this the correct interpretation of the
statute is evidenced by the fact that, in 1924, it expressly authorized the Attorney
General to render opinions to the Director of the United States Veterans Bureau on
441
Supplemental Opinions of the Office of Legal Counsel in Volume 1
questions of law arising in the administration of the Bureau, Act of June 7, 1924,
Pub. L. No. 68-242, § 9, 43 Stat. 607, 610 (codified at 38 U.S.C. § 433), but has
otherwise declined to follow recommendations of several Attorneys General to
extend the opinion jurisdiction.
Following the rule thus laid down in the early days of the statute the Attorneys
General have consistently held that the law does not permit them to render
opinions except to the President and to the heads of the departments (including,
since 1924, the Director of the United States Veterans Bureau), and to them only
upon questions of law which have arisen and are still pending in their respective
departments and requiring future determination. They have consistently held that
their opinions are limited to such as will aid an administrative officer entitled
thereto in determining what administrative action he should take in connection
with a particular matter pending and undetermined in his department.
In this connection the Attorneys General have held that the Attorney General
“possesses no jurisdiction under the law to revise a conclusion already reached and
about which the official presenting the question merely desires my confirmatory
opinion.” Jurisdiction of the Attorney General—Certain Cases in Which the
Attorney General Will Not Render an Opinion, 38 Op. Att’y Gen. 149, 150 (1934);
Attorney-General, 20 Op. Att’y Gen. 440 (1892). In other words, where an officer
of the United States authorized to administer a statute has without securing the
opinion of the Attorney General adopted thereunder a practice satisfactory to
himself, the Attorney General is without authority to question this practice, and
will not do so, unless and until it is made to appear that such officer or his
successor entertains some doubt as to the correctness thereof and for that reason
seeks the advice of the Attorney General in connection therewith. Speaking on this
subject, Attorney General Butler, in an opinion dated February 12, 1836, said:
I cannot undertake to give an official opinion on the question pro-
posed to me, without assuming that this office possesses a revisory
jurisdiction not conferred upon it by law.
Duties of Attorney General, 3 Op. Att’y Gen. 39, 40 (1836).
The Attorneys General have also generally held that under the statutes the
Attorney General is not authorized to render opinions to, or for the benefit of, the
Congress or its committees. In an opinion dated March 26, 1937, which discusses
at some length the Attorney General’s authority to render opinions, the present
Attorney General called attention to the ruling of his predecessors in this respect,
Rendition of Opinions on Constitutionality of Statutes—Federal Home Loan Bank
Act, 39 Op. Att’y Gen. 11, 12–13 (1937), and in a footnote to the opinion referred
to 80 Cong. Rec. 4370–71 (1936), where a list of some of the opinions of prior
Attorneys General on the subject will be found, id. at 13 n.1.
Not only have Attorneys General declined to render opinions on direct requests
of the Congress or its committees, or members thereof, but they have also
442
Jurisdiction and Procedure of the Office of the Assistant Solicitor General
considered it beyond their authority to render opinions to administrative officers
where it appeared that the purpose for which the opinions were requested was their
use by the Congress or committees thereof. On this question Attorney General
Mitchell, in an opinion dated April 25, 1932, said, in part:
Under date of January 28, 1820, the House of Representatives en-
tered an order requesting the opinion of Attorney General Wirt re-
specting a matter in which the House was interested. In declining to
give the opinion the Attorney General, among other things, said:
The Attorney General is sworn to discharge the duties of his of-
fice according to law. To be instrumental in enlarging the sphere
of his official duties beyond that which is prescribed by law
would, in my opinion, be a violation of this oath. (1 Op. [Att’y
Gen.] 336.)
That opinion has stood unquestioned for one hundred and twelve
years and has been repeatedly followed in later rulings. Under date of
December 17, 1884, Attorney General Brewster felt obliged to de-
cline compliance with a resolution passed by the House of Repre-
sentatives requesting his opinion on the application of a section of
the Revised Statutes (18 Op. [Att’y Gen.] 87). Having failed to ob-
tain the opinion by direct request, the House of Representatives
passed another resolution requesting the Postmaster General to ask
for the Attorney General’s opinion, and the Postmaster General
transmitted the request to the Attorney General who again refused to
give the opinion on the ground that he had no authority to give it to
the House of Representatives and the Postmaster General did not
need it on any question pending in his Department.
Under date of February 14, 1929, my immediate predecessor de-
clined the request of the House Committee on Expenditures in the
executive departments for an opinion, and on June 3, 1930, I felt
obliged to decline an opinion requested by the Judiciary Committee
of the Senate.
Congress has accepted this long standing interpretation of the law
and has never attempted by law to enlarge the powers or duties of the
Attorney General so as to require him to give opinions to either
House of Congress or to committees thereof. Having in mind the
constitutional separation of the functions of the legislative, executive,
and judicial branches of the Government, there has always been a se-
rious question whether the principle of that separation would be vio-
lated by a statute attempting to make the Attorney General a legal
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Supplemental Opinions of the Office of Legal Counsel in Volume 1
adviser of the legislative branch, and as a matter of governmental
policy the wisdom of constituting as legal adviser of either House of
Congress an official of the executive department, who sits in the
President’s Cabinet and acts as his legal adviser, has always been
open to doubt.
When pending legislation affecting the Department of Justice has
been referred to Attorneys General for comment or suggestion, it has
been their practice to suggest such legal points as are pertinent and
which ought to receive consideration by committees, but that practice
has never properly involved any formal legal opinions from Attor-
neys General and has no resemblance to a request for an opinion as
to the effect of an existing statute.
Request of Senate for Attorney General’s Opinion on Railroad Mergers, 36 Op.
Att’y Gen. 532, 534–35 (1932).
The general question of opinions of the Attorney General, their functions, and
the practice relating to the rendition thereof are discussed at some length by
Cummings and McFarland in Federal Justice. For reference to the places where
different phases of the question are discussed, see Homer Cummings & Carl
McFarland, Federal Justice: Chapters in the History of Justice and the Federal
Executive 571 (1937) (under heading “Opinions of the Attorneys General”).
In an opinion to the Secretary of the Treasury dated January 30, 1911, Attorney
General Wickersham said in part:
It appears that the questions presented involve the legality of cer-
tain orders issued by the Commissioner of Internal Revenue, the pur-
pose of which is to prohibit the reclamation of spirits from such
packages in the absence of affirmative proof that such spirits had
been properly tax-paid. The papers in the case show that these orders
were issued under your direction and that the Commissioner and the
Solicitor of Internal Revenue, as well as yourself, are fully satisfied
that your action in the premises is correct, the questions referred to
being presented for my consideration merely because of the request
of counsel for the parties interested.
There are numerous precedents to the effect that the Attorney-
General is precluded from rendering opinions under such circum-
stances. In an opinion of August 17, 1892 (20 Op. [Att’y Gen.] 440),
it appeared that the Treasury Department had reached conclusions
upon certain questions which had arisen or might arise therein under
a statutory provision, and that an opinion was desired as the “cor-
rectness of the interpretations and applications of said law.” In de-
clining to accede to this request it was said (id. at 441–42):
444
Jurisdiction and Procedure of the Office of the Assistant Solicitor General
It is required not only that the question must be one arising in the
administration of a department, but it must be one which is still
pending. A matter which has been considered and decided is not
now a “question” upon which the head of a Department may re-
quire an opinion of the head of the Department of Justice.
An opinion reported in 3 Op. [Att’y Gen.] 39 likewise decides
that the Attorney General does not possess the power to revise the
decisions of an executive department, deliberately made and entirely
satisfactory to the Secretary thereof.
It appears, moreover, that a proper determination of the questions
presented can not be accomplished without considerable difficulty,
and that the questions are essentially judicial in their nature. There is
also every reason to believe that if an opinion should be rendered
sustaining the validity of the orders in question, parties interested
would resort to the courts for the purpose of having the matter judi-
cially investigated and determined. That it is not proper for the At-
torney-General to express an opinion upon a question which must ul-
timately be decided by the courts has been settled by numerous and
unequivocal precedents (Digest Op. 46–48).
....
Under all the circumstances, it seems clear that it would not be
proper to attempt to give you the advice requested.
Internal Revenue—Reclamation of Alcohol from the Staves of Empty Spirit
Packages—Attorney-General, Opinions, 28 Op. Att’y Gen. 596, 596–97, 598
(1911).
In an opinion to the Administrator of Veterans Affairs dated November 30,
1934, Attorney General Cummings said in part:
It appears from your letter that I am not called upon to give an
opinion upon a question of law now pending and undetermined in the
Veterans’ Administration but am asked to give an opinion upon a
question which you have already considered and decided. It has been
held by my predecessors that this Department possesses no jurisdic-
tion under the law to revise a conclusion already reached and about
which the official presenting the question merely desires my con-
firmatory opinion, (20 Op. [Att’y Gen.] 440). Furthermore, I am ad-
vised that a similar question is now before the United States District
Court for the District of Nebraska in the case of Mrs. Emma Thomas,
Administratrix of the Estate of James A. Hakel, deceased v. United
445
Supplemental Opinions of the Office of Legal Counsel in Volume 1
States, involving a claim for insurance benefits under Section 309 of
the World War Veterans’ Act, as amended. This Department has
heretofore followed the practice of declining to render opinions upon
questions contemporaneously pending before the courts for determi-
nation and which are within their competency to decide.
Status of Employees Affected by McKellar Proviso in the Emergency Appropria-
tion Act, Fiscal Year 1935, 38 Op. Att’y Gen. 139, 150 (1934).
In an opinion to the Secretary of the Treasury dated March 3, 1921, Attorney
General Palmer said in part:
It appears that at least the first of the questions submitted by you
has been passed upon by Judge Hazel, of the United States District
Court for the Western District of New York, and that an appeal from
his decision is now pending. The answers to the other questions are
necessarily dependent upon the answer to the first. I regret that under
these circumstances I can not comply with your request, as it has
long been the settled rule of this Department not to render an opinion
upon any question whose answer may bring it into conflict with a ju-
dicial tribunal, especially while the question is under consideration
by the courts.
Railway Companies—Extra Compensation for Customs Officers—Attorney Gen-
eral’s Opinion, 32 Op. Att’y Gen. 472, 473 (1921) (citing Attorney-General, 20
Op. Att’y Gen. 618 (1893); Attorney-General—Legacy Tax, 23 Op. Att’y Gen. 221
(1900); Returning Chinese Laborers—Treasury Regulations, 23 Op. Att’y Gen.
582, 585 (1901); Attorney-General—Opinion, 24 Op. Att’y Gen. 59 (1902);
Attorney-General—Opinion, 25 Op. Att’y Gen. 369 (1905)).
In an opinion to the Secretary of the Treasury dated September 7, 1900, Attor-
ney General Griggs said:
It is not the practice of this Department to give an opinion in a matter
where the question involved is disputable and is the subject of a
pending suit and awaiting judicial determination.
Attorney-General—Legacy Tax, 23 Op. Att’y Gen. 221, 221–22 (1900).
446