Abstract
On one occasion, when asked to give an opinion on the constitutional power of Congress to enact a certain law, the Attorney General refused, saying: “I do not believe the Congress would pay any attention to an opinion of an Attorney General to the effect that the power does not exist.” 1 Doubtlessly, he was right. For, as one Representative exclaimed on the floor of the House, “the opinion of the Attorney General may govern the gentleman from Ohio, but it will govern me when it is in pursuance of my convictions of right or wrong, and not otherwise. I surrender my opinions as a legislator to no man.” 2 Nor are opinions accepted as controlling by the courts. As Justice Frankfurter of the Supreme Court remarked: “This Court does not always take the interpretation of the Attorney-General of the United States of a federal statute.” 3 Nevertheless, even though Congress and the courts do not recognize them as directly controlling, opinions do have some practical effects on legislative and judicial action.
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Reference
Unpublished opinion, quoted in 39 OAG 11, 14 (1937).
Cong. Globe, 35th Cong., 2d Sess., p. 1540.
First Iowa Coop. v. Federal Power Commission, 328 U. S. 152, 187 (1946).
Cong. Rec., 68th Cong., 1st Sess., pp. 3299, 3699.
OAG 562 (1923) ; note comment of E. S. Corwin, The President: Office and Powers 1787–1948, 3d ed. (New York, 1948), p. 449 on this opinion.
Cong. Rec., 68th Cong., 1st Sess., p. 4053.
See 1 U. S. Code 204a, 1952 ed. 86 McDonald v. U. S., 89 F. 2d 128, 135 (1937).
The American Shipper, 3 F. Supp. 184, 185 (1933).
Matter of Birkin, 5 B.T.A. 402, 405 (1926).
In re Fitch’s Estate, 1 Extraterritorial Cases 869, 870–1 (1919).
U. S. v. Dietrick, 126 F. 671, 676 (1904).
U. S. v. Dietrick, 126 F. 676 (1904).
OAG 326, 334 (1854). Opinions of the Attorney General continue to have a modest usage as “legal precedents and expositions.” Their use by the federal and state courts can be checked through Shepard’s United States Citations: Statutes and Department Reports Edition (1943) and Supplements thereto, which devote a separate table to opinions. However, Shepard’s Citations occasionally confuse opinions of the American state attorneys general with those of the federal Attorney General.
Usage of opinions as legal precedents by administrative and quasi-judicial authorities varies. The Index-Digest of the Published Decisions of the Comptroller General of the United States, for the periods July 1, 1940 to June 30, 1946 and from July 1, 1946 to June 30, 1951 contains references to 148 citations of opinions in decisions. Volumes 1–3 of Digest of Opinions, The Judge Advocates General of the Armed Forces, covering the period 1951–54, contain 84 references to citations of the Attorney General’s opinions. In the Administrative Decisions under Immigration and Nationality Laws, vols. 4–5, February 1950 to June 1954, there are 46 citations. Opinions are occasionally cited by independent commissions; see Matter of Montana Power Co., 7 Opinions and Decisions of the Federal Power Commission 184, 186, 190 (1948); Matter of Columbia Ry. and Nay. Co., 1 Ops. Decs. FPC 87 (1933).
Finally, as will be discussed more fully below, see particularly Chapter 13, and p. 386, footnote 6, the Attorney General’s opinions have also been cited by international claims commissions.
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© 1957 Martinus Nijhoff, The Hague, Netherlands
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Deener, D.R. (1957). Practical Effect. In: The United States Attorneys General and International Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9570-6_6
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DOI: https://doi.org/10.1007/978-94-011-9570-6_6
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