Abstract
The precise legal force that attaches to the opinion of the Attorney General is not easy to determine. Although the statutes mention such “force and effect as belong to the opinions of the Attorney-General,” nowhere do they define the “force and effect” to which they refer. Yet the binding quality of the Attorney General’s opinion is obviously an important matter. If his opinions are mere “abstract essays,” then the part he plays in determining executive action with respect to the international rights and obligations of the nation will be considerably less than if some degree of actual force lies behind his legal advice. Consequently, this chapter considers the question of the conclusiveness of the Attorney General’s opinion with respect to the various officials of the executive branch of the government.
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Reference
Federal Justice, p. 517, footnote 94.
The Department of Justice, pp. 148–50.
Cong. Globe, 31st Cong., 1st Sess., p. 1026. S Idem.
Stat. 162 (1870); Rev. Stat., Sec. 358; 5 U.S. Code 308. s Cong. Globe, 41st Cong., 2d Sess., p. 3036.
House Doc. No. 356, 68th Cong., 1st Sess., p. 51; exceptions in the cases cf the Comptroller General and the Judge Advocates General of the Army and Navy were contemplated.
Cong. Globe, 40th Cong., 1st Sess., pp. 303, 314; 15 Stat., 2 (1867).
OAG 141 (1867). 18 12 OAG 182 (1867). 20 Cong. Globe, 40th Cong., 1st Sess., p. 549.
Ibid., p. 540.
Cong. Globe, 40th Cong., 1st Sess., p. 618.
Treasury Decision 46102 (1933). 91 Federal Justice, pp. 517–8; see also, Langeluttig, The Department of Justice, pp. 150–4.
Wirt to Nelson, Chairman of House Committee on Judiciary, Mar. 27, 1818; ASP, Misc., vol. 2, p. 590.
Langeluttig, The Department of Justice, p. 151.
OAG 390, 391 (1851). Crittenden, it may be noted, did not agree with the opinion given by Attorney General Johnson.
OAG 32, 36–7 (1857). This case concerned a proposed deduction from the sum due a contractor for carrying mail overseas Cushing had advised that the deduction be made; Black ruled otherwise.
OAG 654, 659 (1893); see also, 20 OAG 719 (1894).
Department heads are not always completely satisfied with the review of executive orders and regulations by the Attorney General and by the Bureau of the Budget. Executive orders have been revised and reissued on complaint of department heads; for one instance, see The Secret Diary of Harold L. Ickes: The First Thousand Days, 1933–1936 (New York, 1954 ), pp. 134–6.
During recent hearings on appropriations, Assistant Attorney General Rankin, head of the Office of Legal Counsel, was questioned concerning the review of executive orders:
Senator MAGNUSON. In other words, if an Executive order is drafted at the White House, it goes to the budget, and the budget does not have to but always comes to you and asks your advice on the legality of the order?
Senator MACxusox. If there is a conflict — supposing the Solicitor of the Department of Interior, for instance, had a difference of opinion with your shop as to the legality of an Executive order they wanted, then do they usually follow your advice as being the higher legal authority, or have you had trouble?
Mr. RANKIN. That is a flattering term. They have been decent about it.“ Hearings before the Subcommittee of the Committee on Appropriations, United States Senate, Departments of State, Justice and Commerce Appropriations for 1954, 83d Cong., 1st Sess., pp. 116–7.
See Langeluttig, The Department of Justice, pp. 137, 167–8. Sewall Key, “The Legal Work of the Federal Government,” Virginia Law Review, vol. 25 (1938), p. 195, states that no government official “has ever been held liable for acts done pursuant to an opinion of the Attorney General.”
See below, Chapter 5, pp. 125–7, for discussion of the limits to this protection. It may also be mentioned that the Attorneys General have taken, at least sometimes in the past, the precaution to get assurances from requesting agencies, when such assurances seemed desirable, that an opinion if rendered would be followed.
Correspondence of Andrew Jackson, John Spencer Bassett ed. (Washington, 1931), vol. 5, p. 187.
The Department of Justice, p. 127. - -
Harold L. Ickes, “My Twelve Years with F. D. R.,” Saturday Evening Post, vol. 220 (June 5, 1948 ), p. 81.
Berger v. U.S.,, 36 C. Cls. 243, 247 (1901).
U.S. Bedding Co. v. U. S., 55 C. Cls. 459,460–1 (1920), citing Smith v. Jackson (which see below) and 25 OAG 303 (1904).
In re Fitch’s Estate, 1 Extraterritorial Cases 869, 870–1 (1919).
See, inter alla, Craig v. Leitensdorfer, 123 U.S. 189, 208 (1887); Angarica v. Bayard, 127 U. S. 251, 255 (1888); Price v. Forrest, 173 U.S. 410, 412 (1899); U.S. v. Smith, 197 U.S. 386, 391–2 (1905); U.S. v. Falk, 204 U.S. 143, 152 (1907); Perkins v. Elg, 307 U.S. 325, 348–9 (1939); United Public Workers v. Mitchell, 330 U.S. 75, 81 n. 7 (1946).
See, for examples, opinions cited this Chapter, footnotes 36, 38, 39, 41.
In the Hearings on appropriations, cited footnote 49 above, the Legal Adviser of the State Department submitted a memorandum indicating that his Office had acted upon 885 requests for legal opinions during the previous year; Hearings, p. 1018. This figure may be compared with the 100–150 formal and informal opinions rendered per year to outside agencies by the Attorney General in recent years; see above, Chapter 3, p. 84.
See below, Chapter 5, p. 146.
Letter of February 26, 1951 to the writer.
See above, this Chapter, p. 102. 78 See above, Chapter 2, p. 51.
The Batture at New Orleans,“ in The Writings of Thomas Jefferson, Memorial edition (Washington, 1904), vol. 18, p. 131; 1 OAG 164 (1807). See account of this incident in William Howard Taft, Our Chief Magistrate and His Powers (New York, 1916), pp. 148–52.
The Letters of Theodore Roosevelt, Elting E. Morison ed. (Cambridge, 1951), vol. 3, pp. 359–62.
Judge Charles Fahy, letter of March 21, 1951 to the writer, in reply to a direct query on the point.
For further discussion of this possibility, see below, Chapter 6, pp. 143–7.
In 35 OAG 553 (1925), Attorney General Sargent commented that the “practice of rendering opinions to the President for the guidance of independent establishments” was of such long standing that he regarded it “as settled and proper.”
Attorney General Cummings, it may be noted, recommended legislation authorizing the heads of independent establishments in the executive branch to obtain opinions from the Attorney General; Ann. Rept., AG, 1934, p. 120; ibid., 1935, pp. 129–30.
In the case of government corporations, see Morgan v. T. V. A., 28 F. Supp. 732 (1939), in which the removal by President Roosevelt of one of the members of the Tennessee Valley Authority was upheld. With respect to the Civil Service Commission, the President has statutory powers and duties relating to the executive civil service; see 5 U. S. Code 631, 631a, 633.
noticed the opinion of the Attorney General upon what was called the New River Case. I called up the attorneys for the Power Commission,… and I asked them if they had read an opinion upon this proposition. They told me they had, but that the Attorney General being their superior, of course, his opinion governed in the matter.90
Cong. Rec., 71st Cong., 3d Sess,. p. 1743.
See U. S. v. Appalachian Power Co., 311 U. S. 377 (1940).
Budget and Accounting Act, 1921, 42 Stat. 20. The Comptroller General is removable only by joint resolution of Congress.
See 31 U. S. Code 74; Mare v. Alexander, 2 F. 2d 895, 896 (1924); McCarl v. Cox, 8 F. 2d 669 (1925).
Comp. Gen. 784 (1923).
Comp. Gen. 772 (1924); see also 5 Comp. Gen. 702, 708–9 (1926).
U. S. 388, 389–90 (1918); see also comments of Langeluttig, The Department of Justice, pp. 155–6.
See above, this Chapter, pp. 99–100.
Harvey Mansfield, The Comptroller General (New Haven, 1939), p. 104, has concluded that the Comptroller General treats the opinions of the Attorney General like “precedents of a foreign jurisdiction.”
See 38 OAG 178, 181 (1935); 38 OAG 181 (1935). In these opinions, however, the Attorney General refused to advise a department head whether or not to invoke the President’s executive power, stating that such a decision was one of policy.
Langeluttig, The Department of Justice, pp. 162–72.
The President’s Committee on Administrative Management, Report with Special Studies (Washington, 1937), p. 185.
See Langeluttig, The Department of Justice, pp. 172–5; The President’s Committee on Administrative Management, Report (1937), pp. 23, 187.
Note Attorney General Cummings’ blunt statement in 38 OAG 176, 179 (1935) that no appeal would be taken from certain Court of Claims decisions adverse to the Comptroller General; also The President’s Committee on Administrative Management, Report (1937), pp. 23, 187.
In Miguel v. McCarl, 291 U. S. 442 (1934), the Solicitor General entered the case to argue for reversal of the decision of Circuit Court which was favorable to the Comptroller General.
Miguel v. McCarl, 291 U. S. 442, 456 (1934); Brunswick v. Elliott, 103 F. 2d 746 (1939).
The President’s Committee on Administrative Management, Report (1937), pp. 187–8. Note also Harold Ickes’ remark to the effect that the Comptroller General was the most powerful officer except only the President; The Secret Diary of Harold L. Ickes: The First Thousand Days, 1933–1936, p. 587.
See 40 OAG 328 (1944); 40 OAG 193 (1942). The President’s Committee on Administrative Management, Report (1937), pp. 25, 201, recommended that the Comptroller General’s powers to settle accounts be transferred to the Secretary of the Treasury, and that jurisdictional disputes between the Secretary and other executive officers be settled by the Attorney General. This recommendation was not adopted. The Second Hoover Commission made no comparable recommendation; see, however, the recommendation mentioned above, footnote 16.
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© 1957 Martinus Nijhoff, The Hague, Netherlands
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Deener, D.R. (1957). Legal Force. In: The United States Attorneys General and International Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9570-6_5
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