          Participation in Congressional Hearings During an
                         Appropriations Lapse

Under the Antideficiency Act, an officer or employee of the Department o f Justice m ay participate
   in a congressional hearing during a lapse in appropriations for the Department if he or she is
   a Senate-confirmed officer, if appropriated funds are available for his or her participation, if he
   or she is subpoenaed, or if there exists other express or necessarily implied authorization to partici­
   pate in the hearing.

                                                                                   November 16, 1995

                    M e m o r a n d u m O p in io n   for th e   Attorn ey G en era l


   The Department of Justice has been informed that various congressional
committees intend to hold hearings at which Department of Justice officials have
been requested to testify, during the period in which the Department lacks appro­
priations to pay for the services of those officials. You have asked under what
circumstances Department officials may participate in these hearings.
   The Antideficiency Act (“ Act” ) provides that “ [a]n officer or employee of
the United States Government or of the District of Columbia government may
not . . . involve either government in a contract or obligation for the payment
of money before an appropriation is made unless authorized by law.” 31 U.S.C.
§ 1341(a)(1)(B). In addition, the Act establishes that “ [a]n officer or employee
of the United States Government . . . may not accept voluntary services . . .
or employ personal services exceeding that authorized by law except for emer­
gencies involving the safety of human life or the protection of property.” 31
U.S.C. §1342. These provisions are enforceable by criminal sanctions and their
requirements must be observed. All federal officers and employees must comply
with the law, whether they serve in the executive, legislative, or judicial branch.
Where the Act applies, it restricts the functions that federal officers and employees
may perform during an appropriations lapse to only those functions that are
encompassed by one of the exceptions to the Act’s general prohibitions. The ques­
tion thus becomes under what conditions, if any, does participation in congres­
sional hearings constitute an excepted function for employees subject to the Act’s
restrictions.
   Before addressing those exceptions, we note that the Act is not implicated at
all by the activities of federal employees for whom no obligation in advance of
an appropriation is incurred by employing a particular individual, even when
appropriations are currently lacking for that individual. A prominent example is
provided by those officers who are appointed by the President with the advice
and consent of the Senate. These officers are entitled to their salaries by virtue
of the office that they hold and without regard to whether they perform any serv­
ices during the period of appropriations lapse. See United States v. Grant, 237

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F.2d 511 (7th Cir. 1956). Therefore, no federal officer or employee incurs an
obligation in advance of appropriations when these officers perform services;
 instead, this obligation arises by virtue of their status and cannot be obviated by
placing them on furlough status.1
   Where the Act does not apply, as in cases like these, officers and employees
may participate in congressional hearings, although the participation of Senate-
confirmed officers is subject to the significant limitation that support persons to
whom the Act does apply may not assist those officers unless these activities
are independently justified under the Act’s exceptions. You have indicated that
you do not intend to make available Senate-confirmed officials of the Department
to participate in congressional hearings unless they have adequate and thorough
support to ensure full preparation. This effectively means that the exceptions of
the Act define the limits of the Department’s ability to comply with requests for
testimony. We turn, therefore, to address the scope of those exceptions.
   There are two major exceptions to the Act. First, there is an exception for func­
tions that relate to “ ‘emergencies involving the safety of human life or the protec­
tion o f property.’ ” 31 U.S.C. § 1342. The Act states that this phrase “ does not
include ongoing, regular functions of government the suspension of which would
not imminently threaten the safety of human life or the protection of property.”
Id. In the highly unusual event that suspension of the Department’s participation
in a congressional hearing would imminently threaten the safety of human life
or the protection of property, the Department may legally participate in the
hearing.
   The Act also states that governmental functions that are otherwise authorized
to be undertaken despite a lack o f appropriations may continue during an appro­
priations lapse. See 31 U.S.C. § 1341(a)(1)(B); id. §1342. In the context of the
Department’s participation in congressional hearings, there are two types of
authority that satisfy this “ otherwise authorized” exception: express authorization
and necessarily implied authorization. See Authority for the Continuance o f

   1 Sim ilarly, the Act would not forbid a furloughed officer or employee from participating in a congressional hearing
if that officer or em ployee participated in his o r her individual capacity. So, for instance, an officer or employee
who is nom inated for a position that is subject to Senate confirmation may, while on furlough status, participate
in his or her ow n confirm ation hearing.
   A nother analogous situation may arise when a non-Senate confirm ed officer or employee reports for work because
his or her duties fall within an exception to th e Act, but there are intervals during the day when the officer or
em ployee is not engaged in an excepted function. If these intervals are anticipated to be brief, such that the officer
or em ployee could not be dismissed from w ork and then recalled in time to perform the next excepted function
activity, then the employee may remain at w ork throughout the intervals. During these intervals, officers and
employees may perform non-excepted functions, because the need for the officer or em ployee's availability would
justify the Department in keeping the officer o r employee in the close vicinity o f his or her duty station to await
the onset o f the excepted function. Consequently, the Department would be obligated to compensate such employees
while they are awaiting the excepted function w ork whether they spend this interval performing the non-excepted
function o r simply sit idle. During these intervals, then, such officers and employees are akin to Senate-confirmed
presidential appointees in that they must be paid fo r these intervals regardless o f whether they perform a non-excepted
function, and thus the government incurs no additional obligation by virtue o f that work being performed. The non-
excepted functions that such officers o r employees may perform during these b n e f intervals between excepted func­
tions include services relating to participation in congressional hearings where participation is not otherwise author­
ized.


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            Participation in Congressional Hearings During an Appropriations Lapse


Government Functions During a Temporary Lapse in Appropriations, 5 Op.
O.L.C. 1 ,3 -5 (1 9 8 1 ).
   Officers and employees of the Justice Department may participate in congres­
sional hearings that take place during a lapse in appropriations if there is express
legal authority to participate despite a lack of appropriations, or an express require­
ment to do so. We are not aware of any statute that grants the officers and
employees o f this Department such authority in the case of general requests for
congressional testimony. Express authority would exist, however, if Congress or
a committee were to issue a subpoena requiring the Department or specific offi­
cials to participate in a hearing during an appropriations lapse. Departmental poli­
cies with respect to responsibilities to the judicial system provide a precedent:
it has long been the Department’s position that, during an appropriations lapse,
attorneys representing the government are to comply with a court order that they
continue with litigation even though the litigation does not fall within an exception
to the Act. See Memorandum for William P. Tyson, Director, Executive Office
for United States Attorneys, from Robert Shanks, Deputy Assistant Attorney Gen­
eral, Office of Legal Counsel, att. at 2 (Mar. 24, 1982) (“ Tyson Memorandum” );
see also Rojas v. United States, 55 F.3d 61 (2d Cir. 1995) (scheduling order
imposes a duty on attorney, nonperformance of which can subject attorney to con­
tempt sanctions under 18 U.S.C. §401(3)). We would follow the same principles
with respect to a congressional order that imposes a legal duty. See 2 U.S.C.
§§192, 194 (imposing legal duty to comply with a duly issued legislative sum­
mons or subpoena).
   The Department’s officers and employees may also participate in a hearing
despite an appropriations lapse if authority for such participation arises by nec­
essary implication from another specific statutory duty or duties. See 5 Op. O.L.C.
at 3-5. In the context of congressional hearings, this exception permits the Depart­
ment to participate where there is express authority or an express and specific
appropriation for the hearing itself, and the Department’s participation is necessary
for the hearing to be effective, even though there is no specific authority or appro­
priation available for the Department to participate. This exception also operates
where there is express authority for a specific Department official to participate —
 such as might arise from a subpoena— but no express authority for support or
assistance of the witness. The Department would regard support and assistance
to the otherwise authorized participation as being justified by necessary implica­
tion. This approach follows from the well-settled practice with respect to Social
Security. See 5 Op. O.L.C. at 5 n.7.
   We are not aware of any other exceptions to the Act that would permit the
Department to participate in congressional hearings during an appropriations lapse.
It has from time to time been suggested that the “ authorized by law” exception
to the Act includes all activities that derive from or relate to a constitutional
power, such as the “ legislative power.” Such a construction would authorize Con-

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gress to continue holding hearings during an appropriations lapse and would allow
the Department to participate. Such a construction, however, is impermissible
because it would necessarily nullify the Antideficiency Act. The Federal Govern­
ment is a government of limited and expressly enumerated powers. Those powers
are denominated in the Constitution, and the Federal Government may only under­
take those activities that are constitutionally authorized. See United States v.
Lopez, 514 U.S. 549 (1995). Consequently, if all constitutionally authorized func­
tions— legislative, executive, and judicial — were excepted, the Act would not
apply to any activity of the Federal Government.
   We have also considered whether a decision by Congress to go forward with
hearings in which Department officers cannot participate would result in a
congressional encroachment upon the President’s constitutional authority.2 We
conclude that no encroachment would occur. The Supreme Court has repeatedly
pronounced that statutes are to be construed to avoid serious constitutional ques­
tions, where such a construction is permissible. See, e.g., Crowell v. Benson, 285
U.S. 22, 62 (1932). Attorney General Civiletti recognized in his 1981 opinion
that it would “ raise grave constitutional questions” if the Act were to be read
to prohibit the President from exercising his constitutional powers. 5 Op. O.L.C.
at 6. Construing the Act as covering executive branch participation in congres­
sional hearings generally, however, does not raise grave concerns over impermis­
sible congressional encroachment on the Executive’s constitutional role.3 The Con­
stitution grants the President authority to “ recommend to [Congress’s] Consider­
ation such Measures as he shall judge necessary and expedient.” U.S. Const, art.
II, §3. Congress does not encroach upon this power by refusing to include the
participation o f the President or his subordinates in a regular congressional
hearing, however unwise and counterproductive such a decision might be. So long
as the President retains a means o f making legislative recommendations, Congress
generally is not obligated to grant the executive a platform at its hearings.4
   The Antideficiency Act places a substantial limit on the functioning of federal
officers and employees generally, including officers and employees of the Depart­
ment of Justice. These limits extend to participation in congressional hearings con­

   2 We have applied this same analysis in exam ining the application o f the Act to the judicial branch. See Tyson
M emorandum at 2; cf. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (striking down congressional encroach­
ment on the judicial branch).
   3 This assertion is made with the exceptions to the Act in mind. W e believe that any instances where grave concerns
might otherwise be raised would fall within the emergency exception or one o f the other exceptions to the Act.
We also note that the Act does not raise corresponding encroachment concerns when applied to Congress. Whereas
the Attorneys General and the courts appropriately remain vigilant against congressional encroachment, there is no
“ grave constitutional” obstacle that prevents Congress, through the Act, from deciding to curtail — or to postpone
until appropriations are available— regular legislative, investigative, o r oversight hearings. Moreover, the Act does
not prohibit m embers o f Congress by themselves from conducting hearings, because their salaries are paid from
permanent appropriations. It is extremely difficult to see how interpreting the Act to preclude Department o f Justice
officers o r em ployees from participating in those hearings would raise a grave question as to whether Congress
has encroached on its ow n constitutionally-based authority to conduct hearings.
   4 That said, the decision to exclude the President from the deliberations at crucial moments in the legislative
process w ould be relevant in a presidential decision to veto such a bill.


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            Participation in Congressional Hearings During an Appropriations Lapse


ducted during a period of lapsed appropriations. During such a period, an officer
or employee of the Department of Justice may participate in congressional
hearings if he or she is a Senate-confirmed officer, if appropriated funds are avail­
able for his or her participation, if he or she is subpoenaed, or if the hearing
falls within one of the categories set forth above.

                                                          WALTER DELLINGER
                                                         Assistant Attorney General
                                                          Office o f Legal Counsel




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