The Effect of an Appropriations Rider on the Authority of the Justice Department to File a Supreme Court Amicus Brief ( 1990 )

The Effect of an Appropriations Rider on the Authority of the
Justice Department to File a Supreme Court Amicus Brief
A rid er in the 1990 appropriations legislation for the Justice D epartm ent, the F ederal C o m m u ­
nications C om m ission, and other agencies that provides that no funds appropriated by th at
legislation m ay be used to repeal, m odify, or reexam ine certain F C C policies does not forb id
the Ju stice D epartm ent from filing a Suprem e C ourt am icus b rie f in a case in w hich those
policies are at issue.
Febrary 5, 1990
Me m orandum O p in io n for the Ac t i n g S o l i c i t o r G e n e r a l
This responds to your request for our opinion on whether a rider in the
Departments o f Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1990 (“ 1990 Appropriations Act”), Pub. L.
No. 101-162, 103 Stat. 988 (1989) forbids the Department of Justice from
filing an amicus brief with the Supreme Court in Metro BroadcastingInc. v.
FCC, No. 89-453, and Astroline Communications Co. v. Shurberg Broad­
casting, No. 89-700.1 For the reasons discussed below, we agree with your
conclusion that the rider does not forbid such a filing.
I. Background
The 1990 Appropriations Act provides funding for several federal govern­
ment entities, including the Department of Justice (title II), the Judiciary
(title IV), and a variety of agencies, among them the Federal Communica­
tions Commission (title V). A rider appears in the provision of title V
making appropriations for the Federal Communications Commission (“FCC”),
which is also found in materially the same language in the two prior annual
appropriations acts.2 It reads:
'S e e M em orandum for William P. Barr. Assistant Attorney General, Office of Legal Counsel, from
John G. Roberts, Jr., Acting Solicitor General, Re: Use o f Departmental Appropriations to File Briefs
Amicus Curiae in Metro Broadcasting, Inc. v. FCC, No. 89-453 and Astroline Comm. Co. v. Shurberg
Broadcasting, No. 89-700 (Jan. 11, 1990) (“Roberts Memorandum”).
2 The original provision from which the current rider is derived appears in Pub. L. No. 100-202, 101
Stat. 1329-1, 1329-31 (1987). See also Pub. L. No. 100-459, 102 Stat. 2186, 2216-17 (1988).
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[N]one of the funds appropriated by this Act shall be used to
repeal, to retroactively apply changes in, or to continue a re­
examination of, the policies of the Federal Communications
Commission with respect to comparative licensing, distress
sales and tax certificates granted under 26 U.S.C. 1071, to
expand minority and women ownership of broadcasting licenses
. . . other than to close MM Docket No. 86-484 . . . .
103 Stat. at 1020.
No such rider appears in title II, which appropriates funds for the Justice
Department, not even in the “General Provisions” of that title. 103 Stat. at
995-1006.3 Nor does any such rider appear in title IV, which appropriates
m onies for the federal courts, including the Supreme Court. Id. at 1010-16.
Finally, no such rider appears in title VI (“General Provisions”), which sets
forth general restrictions on the use of the funds appropriated under all of
the preceding titles of the Act. Id. at 1031-40.
The questions of the FCC rider’s possible application to a Justice Depart­
m ent amicus filing initially arose in August 1988, when the Civil Rights
Division sought permission to file an amicus brief with the Court of Appeals
for the District of Columbia Circuit in what is now the Metro Broadcasting
case.4 Both the Civil Rights Division and the Solicitor General concluded,
as do we here, that the rider does not prohibit amicus filings by the Depart­
ment. The Solicitor General authorized Civil Rights to file an informational
amicus brief with the court of appeals,5 and such a brief was in fact filed.6
II. AmaEysns
The FCC rider prohibits the use of “funds appropriated by this Act . . . to
repeal, to retroactively apply changes in, or to continue a reexamination of,
the [specified] policies of the Federal Communications Commission.” 103
Stat. at 1021. It is clear from the language and purpose of the rider, and
from the overall structure of the 1990 Appropriations Act, that the rider was
3The “G eneral Provisions" o f title II do otherwise impose restrictions on the use of Justice Department
funds. See 1990 Appropriations Act §§ 205-206, 103 Stat. at 1005 (restrictions on abortion-related use
o f funds).
4 See M em orandum for the Solicitor General, from W illiam Bradford Reynolds, Assistant Attorney
G eneral, Civil Divison, Re: Steele v. FCC and Winter Park Communications, Inc. v. FCC. Nos. 84-1176
& 85-1755 (D.C. Cir.) (July 22, 1988) (rider did not prohibit amicus filing in court of appeals); hand­
written com m ents o f the Solicitor General on M emorandum for the Solicitor General, from Thomas W.
M errill, D eputy Solicitor General, Re: Steele v. FCC (Aug. 3, 1988) (rider did not prohibit filing of an
“inform ational" am icus brief).
5 In his handw ritten marginal comments authorizing a filing, the Solicitor General wrote that “ [t]he
argum ent relating to the appropriations rider is troublesome but I think Civil Rights has the better of it."
He further observed that a purely “informational” filing would not “come within ten miles of the appro­
priation rid er’s prohibition (even on its m ost expansive interpretation).”
6See B rie f fo r the U nited States as Am icus Curiae. Winter Park Comm., Inc. v. FCC & Metro Broad­
casting, Inc. v FCC. D.C. Cir. Nos. 85-1755 & 85-1756 (Aug. 29, 1988).
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intended to impose restrictions only on the FCC, and thus does not forbid the
filing o f an amicus (or any other) brief by the Department of Justice. Even if
this conclusion were less than clear, we would resolve any ambiguity in favor
o f this construction to avoid the very serious constitutional problems that
would exist were the rider interpreted to prevent the Department from filing
in the Court.
The 1990 Appropriations Act is essentially an omnibus enactment com­
prising a number of separate and unrelated appropriations “Acts” (titles I-V),
and a number of general provisions that apply to all titles of the Act (title
VI). Each of titles I-IV is expressly designated an “Act.” Id. at 995, 1006,
1010, 1016. For example, title II, which appropriates funds for the Justice
Department, provides that title II “may be cited as the 'Department of Jus­
tice Appropriations Act, 1990.” ’ Id. at 1006.7 With the exception of title VI,
which for understandable reasons Congress might not separately designate an
“Act,” title V is the only title that is not expressly designated an Act. Be­
cause it is not designated an “Act ” there is some question as to whether the
term “this Act” in title V was intended to refer only to title V or to the entire
1990 Appropriations Act.
We believe that title V also should be considered a separate act for the
purpose of construing the provisions within that title, which appears to be
the only purpose for Congress’ separate designation of titles I-IV as “Acts.”
We can think of no substantive reason why Congress would have wanted
title V treated any differently in this respect from titles I-IV. Indeed, it
appears that the only reason title V may not have been designated an “Act”
is that, unlike titles I-IV, it appropriates monies to a number of different
federal government entities8 and, as a consequence, would not have been
easily entitled. It follows from the fact that title V was intended to be
understood as a separate “Act” for the same purposes that titles I-IV are to
be so understood that the term “this Act” in the title refers only to title V,
not to the entire 1990 Appropriations Act.9 Accordingly, we conclude that
the expenditure restriction in the rider applies only to the FCC appropria­
tions made in title V.10
Interpreting the rider as applicable only to the FCC is the interpretation
’ The Act provides that title I “may be cited as the 'Departm ent of Commerce Appropriations Act,
1990"', see 103 Stat. at 995; that title III “may be cited as the 'Departm ent o f State Appropriations Act,
1990',” id. at 1010; and that title IV “may be cited as "The Judiciary Appropriations Act, 1990',” id. at
1016.
•Each o f titles I-IV appropriates monies for a single agency or, in the case o f title IV, an entire branch
o f government (the federal judiciary).
’ This interpretation of the term is consistent with the other uses o f the term in title V. See 103 Stat. at
1018 (Commission on the Bicentennial of the United States Constitution); id. at 1022 (Securities and
Exchange Commission); id. at 1023 (Small Business Administration); id. at 1024 (same); id. at 1028
(same).
10The restriction would apply to, although presumably have no practical effect on, the other agencies
for which appropriations are made in title V.
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most consistent with the rider’s character as a proviso. Sums are appropri­
ated “[f]or necessary expenses of the Federal Communications Commission
. . . Provided!” that the rider’s terms are observed. 103 Stat. at 1020. While
it would be possible to read the provision as conditioning the FCC appro­
priations on Commerce, Justice, State and other agency compliance with the
terms o f the rider, clearly the most natural reading of the proviso is as a
condition only on the immediately preceding appropriation to the FCC. It
would be odd indeed for Congress to condition one agency’s appropriations
on compliance by other agencies with enacted prohibitions. This is espe­
cially the case where, as here, the other agencies have no apparent authority
to engage in the prohibited activities.
The legislative history confirms that Congress intended the rider to apply
only to the FCC. The Senate Report on the bill that first included the rider
explains the purpose of the rider as follows:
The Committee has inserted a provision in the bill which
bars the Federal Communications Commission from expend­
ing funds to repeal, retroactively restrict, or continue a pending
reexamination of, longstanding rules to promote the owner­
ship o f broadcasting licenses by minority group members and
women. The FCC has commenced an inquiry, In the Matter
of Reexamination of the Commission’s Comparative Licens­
ing, Distress Sales and Tax Certificate Policies Premised on
Racial, Ethnic or Gender Classifications, MM Docket No. 86-
484, which calls into question the advisability and legality of
these rules.
The Committee believes the inquiry is unwarranted . . . .
S. Rep. No. 182, 100th Cong., 1st Sess. 76 (1987) (emphasis added) (“Sen­
ate Report”). The report continues with instructions to the FCC to close
MM Docket No. 86-484, and to resolve within sixty days certain proceed­
ings that had been either remanded by the District of Columbia Circuit
Court o f Appeals — including the Shurberg case — or held in abeyance
pending the outcome of the FC C ’s rulemaking, “in a manner consistent with
the policies that mandated incentives for minorities and women in broadcast
ownership.” Id. at 77.
These passages make clear that the purpose of the rider was to prevent
the FCC from using its appropriated funds to continue the then-pending
FCC administrative proceeding reexamining the minority and gender prefer­
ence policies11 or, at most, to prevent the FCC from conducting any such
reexamination in the future. The rider even identifies by docket number
11 The FC C ’s rulem aking followed a request by the FCC to the D.C. Circuit — before which a constitu­
tional challenge to the F C C ’s comparative licensing gender preference policy was pending — to permit
the agency to reexam ine its preferences. See Race and Gender Preferences, 1 F.C.C. Red 1315 (1986)
Continued
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(MM Docket No. 86-484) and, almost verbatim, the title of the specific FCC
rulemaking (or “reexamination”) with which it was concerned.12
The structure of the 1990 Appropriations Act also supports the conclusion
that Congress did not intend the rider as a restriction on the use o f all funds
appropriated in the 1990 Appropriations Act. If Congress intended to apply
the rider’s restrictions to all of the federal entities, presumably it would have
inserted language of restriction in the respective titles— each of which in­
cludes other restraints on the use of the appropriated monies—or, more likely,
in title VI, a catch-all section that includes provisions limiting the use of
funds appropriated in any of the earlier titles. Neither titles I-IV nor title VI
contains any restriction substantively similar to that in the rider.
Even assuming that the rider extends to the funds appropriated to the
Department of Justice, we do not believe that filing an amicus brief would
be prohibited. The rider only prohibits the expenditure of funds “to repeal,
to retroactively apply changes in, or to continue a reexamination o f ’ the
specified FCC policies. The Department of Justice does not even have the
power to “repeal” or to “apply changes in” an FCC policy. That administra­
tive power rests in the FCC and, through legislation, Congress.
Nor, we think, can the filing of an amicus (or any other) brief be regarded
as “continufing] a reexamination” of the FCC policies at issue.13 First, read
in the context of the immediately preceding proscriptions on “repeal” and
“changes in” the FCC policies, the term “continu[ing] a reexamination” is
" (...continued)
(MM Docket No: 86-484), modified, 2 F.C.C. Red 2377 (1987). The FCC had sought this reexam ination
in part because o f its opinion at that time that both the racial and the gender preferences were unconstitu­
tional. See B rief f o r the Federal Communications Commission on Rehearing En Banc in Steele v. FCC,
D.C. Cir. No. 84-1176. The FCC was engaged in preparing findings in the rulemaking when Congress
decided to abort the proceedings. In obedience to Congress’ directive, the FCC closed the rulemaking
and reinstituted the preferences on January 14, 1988. See FCC 88-17.
"T h ere is no suggestion in either the text or legislative history o f the subsequently-enacted riders that
Congress’ purposes for including the rider in the FCC appropriation has changed since the rider was
first enacted in 1987. See S. Rep. No. 144, 101st Cong., 1st Sess. 86 (1989) (Committee “recom mends
retention” of provisos enacted previously); S. Rep. No. 388, 100th Cong., 2d Sess. 79 (1988) (Com m it­
tee has "continued language from previous appropriations acts with regard to . . . minority and women
ow nership o f broadcasting licenses”).
13 Arguably, no expenditure made after closure of the rulemaking proceeding in MM Docket No. 86-
484 by any o f the federal entities for which appropriations were made in the 1990 Appropriation Act
could run afoul o f this portion of the rider’s prohibition. The rider could fairly be interpreted to prohibit
only the expenditure of funds to continue the particular “reexamination” o f the FCC policies then in
progress in MM Docket No. 86-484, which was closed on January 14, 1988. See, e.g., S. Rep. No. 182
at 76 (rider inserted to prohibit expenditures to “continue a pending reexamination" of the FCC policies
(em phasis added)). If the rider were so interpreted, it would not prohibit a new “reexamination” o f the
policies.
Congress clearly understood and appreciated the difference between beginning a reexam ination and
continuing a reexam ination of a particular matter, as evidenced by its prohibition in the same appro­
priations act o f expenditures “to repeal, to retroactively apply changes, or to begin or continue a reex­
amination of the rules and policies established to administer such rules o f the Federal Com m unications
Commission as set forth at section 73.3555(c) of title 47 of the Code of Federal Regulations.” See 103
Stat at 1021 (em phasis added).
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best understood to refer only to administrative reexamination of the poli­
cies.14 A court does not examine policies qua policies; it reviews the legality
o f the policies. Thus, while the prohibition might prevent commencement
o f a new administrative inquiry into the wisdom (or even the legality) of the
agency’s racial and gender preference policies, we do not believe it would stand
as a bar to a legal challenge to those policies before the courts of law.15
Second, even if the rider were interpreted to extend to challenges in a
judicial forum, we do not believe that the filing of a brief once the Court has
decided to hear a challenge entails the use of funds “to continue a reexami­
nation” o f the FCC policies. The Court perhaps expended funds to continue
the reexamination by docketing the cases, and will continue to do so by
retaining the case on its docket for briefing, argument and disposition. With
certiorari granted, however, the Department would only be expending funds
to participate in a “reexamination” that has already been continued; it would
not be expending funds “to” continue a reexamination. The reexamination,
if that it be, see discussion infra, is underway and will continue, whether or
not the Department participates. The Department fully complied with the
terms o f the prohibition (assuming that it applies) by opposing the grant of
certiorari.
Finally, the Supreme Court’s review of these cases would not properly be
considered a “reexamination” of the FCC policies because the Court has
never previously examined these policies. One could argue that any second
and successive examination constitutes a “reexamination” because the FCC
has already once examined them. We believe, however, that the better read­
ing of the rider (regardless to whom it applies) is as a prohibition on a
second and successive examination by the same entity. This especially would
seem to be the better interpretation, given that the prohibition is against
“continuing” a reexamination, not merely reexamining, the specified poli­
cies. One does not ordinarily think of a second body “continuing” a
reexamination begun by another body. O f course, this interpretation finds
substantial support in the legislative history. See discussion supra at 16.
For the aforementioned reasons, we believe it is clear that Congress did
not intend the rider to serve as a limitation on Department of Justice expen­
ditures. Even if Congress’ intent were less than clear, however, we would
14 In the Senate Report accompanying the first appropriations bill to which the rider was attached, the
C om m ittee instructed the FCC to resolve certain pending cases in a manner consistent with the FCC’s
racial and gender preference policies. S. Rep. No. 182 at 77. The Com m ittee’s instruction identifies
the cases to w hich it refers as ones w hich had been either remanded to the FCC by the District of
C olum bia C ircuit Court o f Appeals, o r held in abeyance by the FCC pending reexam ination of its
policies. T he Com m ittee thus merely instructed the FCC to apply the racial and gender preference
policies in adm inistrative adjudication, which is consistent with our view that the rider was directed
only at adm inistrative actions that might lead to reversal of the specified FCC policies.
13 Indeed, if the prohibited “reexamination” of FCC's policies bars a Justice Department legal challenge
to those policies, it would also preclude judicial review o f those policies, since the federal judiciary is
funded by title IV o f the Act, and would be subject to the same restrictions in the rider. Apart from the
serious constitutional issue that would be presented by a provision purporting to prevent constitutional
challenges to a law, see, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988), it would be extraordinary to
construe a provision to prevent judicial review sub silentio.
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interpret the rider to permit an amicus filing so as to avoid the serious consti­
tutional problems, see NLRB v. Catholic Bishop, 440 U.S. 490 (1979), that
would otherwise exist. A statute that purported to prohibit the Executive from
filing an amicus or other brief on the constitutionality of federal agency action or
policy would raise the most serious constitutional concerns.16
The President is constitutionally required to take care that the laws, in­
cluding the Constitution, be faithfully executed. See U.S. Const, art. II, § 3.
Before entering office, the Constitution requires that he “solemnly swear”
that he will “to the best of [his] Ability, preserve, protect and defend the
Constitution of the United States.” Id. art. II, § 1, cl. 8. The filing of briefs
in courts of law through his subordinates—particularly as such filings may
bear on the legality of action taken by Executive departments or agencies—
is integral to the discharge of his constitutional duty to see that the laws are
faithfully executed. As a consequence, while the question never has been
and may never be litigated, it is doubtful that Congress, through exercise of
its appropriations power or otherwise, could ever prevent the Executive from
advancing before the courts a particular view of the constitutionality o f an
Executive agency action or policy.
C O N C L U SIO N
For the foregoing reasons, we conclude that the 1990 Appropriations Act
does not bar the Department of Justice from filing an amicus brief with the
Supreme Court in the Metro Broadcasting litigation.
J. MICHAEL LUTTIG
Principal Deputy
Assistant Attorney General
Office o f Legal Counsel
'‘ Interpreting the rider so that it would extend to the Department of Justice would result in its applica­
tion to the judiciary, as well. Application of the rider to prohibit the judiciary from expending any o f its
appropriated funds "to continue a reexamination” of the FCC policies would raise separate, but equally
serious, constitutional questions.
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