MEMORANDUM To: Walter Zelman White House Health Care Task Force From: Douglas Letter Appellate Litigation Counsel Civil Division Department of Justice As part of your work on the Health Care Task Force you have posed to me several general questions regarding the possible constitutionality of different options concerning regulation and delivery of health care services. In this memorandum, I provide you with some background on the law regarding Federal Govern- ment/State relations, the ability of the Federal Government to place conditions on federal funds and aid, and the authority of the Federal Government to regulate economic activity. In doing so, I have tried to give you answers to your questions, although, as you will see, there are no clear answers on some of them. At this point, we cannot provide definitive responses to some of your questions because the questions are rather amorphous, and the state of the law is not clearly developed in certain of the relevant areas. In ruling on constitutional challenges to various federal legislative schemes, the federal courts often analyze the entire scheme and take into account in differing ways its various aspects rather than focusing exclusively on the narrow part of the scheme actually under legal attack. Consequently, it is difficult to try to advise you whether a particular mechanism would survive constitutional challenge unless we know the precise place of that mechanism within the overall legislative scheme. This factor makes it harder for you in trying to craft a legislative scheme while avoiding possible constitutional problems, but we are limited in our ability to give you solid advice until we have a rather precisely defined scheme to examine. Therefore, it is probably best for me to provide you with this background information and general advice at this point, and then to remain available to provide clearer opinions as you fill in the details of the legislative proposal. You should thus take the advice given here as preliminary; as we work with you during the development of the legislative proposal, our advice should become more precise. In addition, although I have consulted a number of sources within the Department of Justice regarding your questions, the Attorney General's Office has not had the opportunity to study these points thoroughly because of the short timing. At this stage, my impression is that you are interested almost exclusively in the Justice Department's view of possible legal issues. Therefore, as you see, this memorandum sticks primarily to those types of points and largely avoids questions of policy. I expect that the Department may later want to provide policy advice to the Task Force. A. You raised questions with me concerning the ability of the Federal Government to direct the states to take various actions that would utilize the states' power. Federal health care legislation would definitely encounter constitutional difficulty under the Tenth Amendment if it directly orders the states to take certain action (such as to form health-care cooperatives) or refrain from taking certain action (such as to levy additional health-care taxes). The Supreme Court has recently held, in connection with federal radioactive waste legislation, that the Tenth Amendment does not permit the Federal Government to "command . . . state governments to implement legislation enacted by Congress."1 We believe this ruling would bar legislation that, for example, requires the states to form health-care cooperatives, or forbids the states from imposing health-care charges or taxes. Note that the Federal Government can itself regulate the activities of the states with regard to their relations with their employees.2 Thus, general federal health regulation could be applied to the states as employers. The Tenth Amendment difficulty arises, however, when the Federal Government requires states to exercise regulatory authority over private employers and employees. There are two ways to avoid the Tenth Amendment limitation on compelling states to implement federal legislation. First, requirements that would otherwise violate the Tenth Amendment may be imposed as conditions on federal funding. The Supreme Court has squarely held that the Federal Government may utilize the device of attaching conditions to federal funding as a means of 1 New York v. United States, 112 S. Ct. 2408, 2428 (1992). 2 See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) (Congress can impose Fair Labor Standards Act protections on state workers) . imposing requirements that are otherwise beyond the Federal Government's constitutional authority.3 The only real limitation is that the conditions must "bear some relationship to the purpose of the federal spending."4 Thus, any requirements or conditions to be imposed should be attached to health care related federal funding. The other technique to avoid Tenth Amendment limitations is to "offer States the choice of regulating [private] activity according to federal standards or having state law preempted by federal regulation."5 This is the technique widely used in the environmental area, such as in the Clean Water Act and the Clean Air Act. Thus, the Federal Government can utilize the states in various cooperative federalism schemes, but likely cannot simply order the states to use their sovereign power in specified ways. B. With regard to direct federal regulation of economic activity, the courts have held that the Federal Government has the constitutional authority to impose wage and price controls.6 In addition, the courts have sustained price controls on medical transactions related to Medicare coverage.7 We anticipate that under these precedents, the price and cost controls involved in a new health care coverage system would be constitutionally sustainable. However, there are aspects that could cause problems. 3 United States v. Butler, 297 U.S. 1 (1946); Oklahoma v. Civil Service Comm'n, 330 U.S. 127 (1947); South Dakota v. Dole, 483 U.S. 203 (1987); New York v. U.S., 112 S.Ct. 2408 (1992). 4 New York v. U.S., 112 S.Ct. 2408, 2423 (1992). 5 New York v. U.S., 112 S. Ct. 2408, 2424 (1992). 6 Bowles v. Willingham, 321 U.S. 503 (1944); Local Union No. 11. IBEW v. Boldt, 481 F.2d 1392, 1396 (Em. App. 1973) (citing cases); Amalgamated Meat Cutters v. Connally, 337 F.Supp. 737 (D.D.C. 1971) (three-judge court). In Whitney v. Heckler, 780 F.2d 963 (11th Cir.), cert. denied, 479 U.S. 813 (1986), the court sustained a temporary freeze on fees charged Medicare patients by non-participating physicians; the freeze was designed to preclude physicians from shifting the burden of reductions in Medicare reimbursements to Medicare beneficiaries. See also Metrolina Family Practice Group v. Sullivan, 767 F. Supp. 1314 (D.N.C. 1989), aff'd, 929 F.2d 693 (4th Cir. 1990) (table) Past systems of wage and price controls have been designed to assure that transactions take place at a reasonable price, rather than to prevent certain transactions from taking place at all. A health care system that imposes a cap on total costs could operate, overtly or as a practical matter, to prevent certain types of medical treatment from taking place at all. The courts may find that distinction significant. Where the restriction is on medical treatments that the Government will pay for out of public funds, there is ample precedent to uphold the limitation. Indeed, the courts have sustained even limitations on the amounts a physician can charge a Medicare patient over and above the government reimbursement.8 However, where a restriction on the availability of treatment at any price goes beyond protecting the integrity of a government reimbursement system -- and the restriction imposed is for economic reasons (rather than health and safety, as in the case of FDA regulations) -- there could be a constitutional problem.9 - This is an uncharted area of the law. The right to medical treatment has been given constitutional protection in the area of abortion; but that is for reasons that are not generally appli- cable to other types of treatment. 10 Where the treatment sought is medically necessary -- and particularly where a life-threaten- ing condition is involved -- it is entirely possible that the courts would impose some constitutional limits on the Govern- ment's ability to impose, for economic reasons, restrictions on a patient's abilit to obtain treatment for which he or she is willing to pay.1 8 See cases cited in note 7 su~ra. 9 See Massachusetts Medical Society y. Dukakis, 815 F.2d 790, 797 (1st Cir.), cert. denied, 484 U.S. 896 (1987). 10 Planned Parenthood v. Casey, 112 S. Ct. 2791, 2807-8 (1992). Compare Pennhurst State school & Hos~ital v. Halderman, 451 U.S. 1, 16 n.l2 (1981) (no constitutional right to rehabilitative treatment for mentally retarded); O'Connor v. Donaldson, 422 U.S. 563, 587-89 (1975) (Burger, C.J., concurring) (no constitutional right to treatment for mental illness) 11 See New York State Ophthalmological Society v. Bowen, 854 F.2d 1379, 1388 (D.C. Cir.1988), cert. denied 490 U.S. 1098 (1989), in which Judge Mikva suggested that a liberty interest may exist where "the challenged regulation restricts access to treatment indispensable to a patient's life, health or sight in a way that 'shocks the conscience,'" or "has dire personal consequences." There are two ways of protecting a system against constitutional vulnerability on this score. First, doctors could be offered strong~incentives to come "voluntarily" within the system, but not be faced with an absolute requirement -- thus preserving some opportunity for doctors to practice, and patients to obtain care, outside the system, while guaranteeing that the vast bulk of medical transactions occur within the system. Although court rulings have sustained the Government's right to control prices charged by private physicians, part of the justification for that has been the doctors' ability to opt out of the system. 12 Where all or virtually all medical services were required to be provided within the government regulated system, a very limited "escape hatch" would not necessarily carry the day.13 But if there is some reality to the escape opportunity, we believe it would contribute substantially to a legal defense of the systeni. An alternative would be to build in some kind of variance procedure, where medical treatment outside the restrictions of a cost cap would be allowed if it met some criteria of significant medical necessity. It must be recognized that any such escape hatch might become very difficult to control, since the governing criteria would probably have to be general and thus subject to expansive administrative and judicial interpretation. C. Requiring all doctors to operate within a federal health care system may or may not raise constitutional problems, depending on what the #system# is. If the only limitation imposed is that doctors within the system limit their charges to a schedule of reasonable fees established by the Federal Government or by a designated health care cooperative, there should be no problem. The courts have uniformly sustained federal price controls against constitutional challenge, even though they force providers of goods and service either to conform to the federal limitations or go out of business.14 These precedents should sustain a federal health care scheme that forces doctors to 12 See Whitney v. Heckler, sunra. 13 In New York Ophthalmological Society, supra, the court concluded that a patient's option to forego Medicare coverage did not relieve a Medicare limitation on cataract treatment from constitutional scrutiny (the court sustained the limitation on other grounds). 854 F.2d at 1384. 14 Bowies v. Willingham, 321 U.S. 503 (1944); Local Union No. 11, IBEW v. Boldt, 481 F.2d 1392, 1396 (Em. App. 1973) (citing cases) ; Amalgamated Meat Cutters v. Connally, 337 F.Supp. 737 (D.D.C. 1971) (three-judge court). operate within a federal system that regulates their charges. We note, however, that most or all of the rulings upholding federal price controls have involved situations in which the controls were temporary, which might not be true in the planned legis- lation here. However, more serious issues are presented if the system operates to deny or limit the opportunity of some doctors to practice medicine at all. Under present practice, as we understand it, HMOs typically limit their members to a restricted list of providers. This policy does not restrict the opportunity of doctors not on the list to practice medicine, since there are plenty of patients who do not belong to HMOs. Moreover, the HMOs are private entities, and are thus free to choose with whom they will deal. But if federal legislation establishes HMOs to which all patients in an area must belong, then serious questions would be raised by the HMOs' restriction of their members to a limited list of providers. Under this kind of system, an HMO determination that a doctor could not get on the list could represent state action denying the doctor a chance to practice his profession. At the very least, doctors would have to be given an opportunity to get on the list upon meeting a reasonable set of requirements (which could include charging reasonable fees);,and would also have to be provided some kind of due process to challenge determinations that they do not qualify for inclusion on the list. These difficulties are reduced in a system that utilizes private entities as the health care cooperatives or HMOs. The Supreme Court has allowed private entities to become very heavily involved in federal regulatory schemes without becoming govern- mental actors subject to due process restrictions. For example, the Court has held that a private nursing home's decision to transfer a Medicaid patient to a lower-level facility was not a governmental decision requiring due process procedures -- despite the federal funding involved and the attendant federal regula- tion.15 However, if the private entity were deemed to be acting as the Government's agent for purposes of implementing the statute, a different rule would likely apply. There is, however, one warning: when the private entity is exercising the coercive power of the Federal Government, then it must comply with constitutional restrictions. For example, the 15 Blum v. Yaretsky, 457 U.S. 991 (1982). See also RendellBaker v. Kohn, 457 U.S. 830 (1982) (private school is not a state actor subject to due process restrictions in making personnel decisions, even though nearly all the students were state-funded, and school was subject to extensive state regulation in connection with such funding) Supreme Court has held that where federal regulations require private employers to administer dru~ tests to their employees, constitutional restrictions apply.1 Thus, if a private health care cooperative were required to accept all qualified applicants as members, constitutional restrictions would likely apply to its membership decisions. However, if it were free to pick the doctors and hospitals that it would utilize, within overall budget constraints, its decisions in that specific area would likely be free of constitutional restrictions. Furthermore, any problems in this area could be lessened if the system were one in which participation by health care providers can be described as voluntary. D. Federal legislation that restricts individuals' ability to select their own physicians will invite attack on the ground that it interferes with a constitutional right of privacy. The case law on the right of privacy has not addressed this issue; thus, we cannot predict what the outcome of such a challenge would be. Clearly, the Federal Government (or a health care cooperative operating under federal legislation) can limit the services for which it will reimburse the patient. But a more difficult issue is raised if an individual willing to forego reimbursement of the fee is unable to choose his or her own physician. In this context, we assume that the physician meets all applicable legal requirements -- including whatever fee limits might be set by the legislation -- so that the only issue is the individual's per- sonal preference for a particular doctor. In order to insure that the legislation survives constitutional challenge in an area where the law is highly uncertain, it would be preferable to afford some option on the part of individuals to choose phy- sicians at their own expense outside the cooperative's list. E. Questions have also been raised regarding delegations of federal authority to different types of entities. Under the modern non-delegation doctrine, Congress may delegate authority to a variety of bodies, including the Executive Branch, indepen- dent agencies, the states, and even private groups. There appear to be few substantive limits on the nature of the authority that Congress may vest. For example, Congress has successfully assigned government corporations to collect insurance premiums from private retire- ment plans and pay benefits,17 and provided industry groups with 16 Skinner v. Railway Labor Executives' Ass'n, 289 U.S. 602 (1989) 17 See Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 222-23 n.7 (1986). authority to fix minimum prices, redistribute revenues, and control production levels,18 as well as promulgate safety stan- dards.19 The Supreme Court has also held that even delegations of fundamental governmental functions such as taxation do not receive heightened scrutiny.20 Consequently, there is no neces- sary legal impediment to delegating comprehensive authority over health insurance and related matters. There are, however, at least two important procedural limitations. First, Congress must lay down an intelligible principle to which the delegate must conform, so that courts may determine whether the will of Congress has been obeyed.21 This limitation would ordinarily be satisfied by a general directive concerning the public policies (such as fair rates, or cost containment or universal coverage) that the scheme is intended to promote.~2 Greater elaboration and specificity may be 18 Such schemes are particularly prevalent under the Agricultural Marketing Agreement Act of 1937. The Act effectively permits dairy farmers (and, to a lesser extent, dairy handlers) to set the minimum prices that handlers must pay to farmers, see United States v. Rock-RoyalCo-o~erative. Inc., 307 U.S. 533, 574-78 (1939) (upholding statute against delegation challenge and allowing order approved by farmers that required milk handlers to pay into settlement fund difference between minimum price and uniform price). The Act also gives authority to reject quotas set by the Secretary of Agriculture, see Wickard v. Filburn, 317 U.S. 111, 115-16 (1942). Similarly, the Tobacco Inspection Act of 1935 delegated to tobacco growers the power to veto the Secretary's designation of an auction market, see Currin v. Wallace, 306 U.S. 1, 6 (1939), and the Bituminous Coal Act of 1937 allowed coal producers to fix minimum prices for members of Bituminous Coal Code, effective upon approval or modification of the National Bituminous Coal Commission. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). 19 See Saint Louis, Iron Mountain, & Southern Ry. Co. v. Taylor, 210 U.S. 281, 285-87 (1908) (sustaining congressional delegation under Federal Railway Safety Appliances Act of 1893 to American Railway Association to set minimum height requirement for drawbars on railroad cars) . Congress has subsequently incorporated privately-developed safety standards for occupational safety and health regulation, see 29 U.S.C.  655(a), 652(9). 20 See Skinner v. Mid-American Pipeline Co., 490 U.S. 212, 220-23 (1989) 21 ~, Mistretta v. United States, 488 U.S. 361, 371-79 (1989) (Sentencing Commission) 22 See Skinner, 488 U.S. at 219 (citing cases). necessary if the delegate's authority could be viewed as ex- tending to matters of individual liberty, such as the te or degree of medical care for which a person may contract. Because delegations of authority to private actors have generally concerned industry self-regulation or secondary insurance, rather than primary responsibility for the management of matters so directly affecting the citizenry, it is unclear whether a more demanding standard of review for this type of delegation could emerge. Second, for reasons primarily relating to the constitutional separation of powers, oversight of most delegations must in all likelihood be vested in the President or an Executive Branch agency, and may not be vested in the Congress and possibly other bodies.24 To a certain extent, Article II of the Constitution centralizes implementation of federal laws in the Executive Branch of the Federal Government. Thus, the Supreme Court has stated in one context that those who carry out substantial authority pursuant to the laws of the United States must be appointed under the Appointments Clause of Article 11.25 Despite this principle, Congress has successfully assigned to the states what amounts to final authority over cooperative federal/state ventures, thus effectively avoiding the restric- tions of Article 11.26 But Executive Branch oversight may be 23 In Toubv v. United States, 111 S. Ct. 1752, 1756 (1991), the Supreme Court noted the ambiguity in its precedent as to whether regulations that pose a risk to individual liberty, such as those contemplating criminal sanctions, require more specific guidance from Congress, but held that the delegation in that case would survive such a heightened review. 24 Cf. Morrison v. Olson, 487 U.S. 654 (1988) (appointment power and separation of powers concerns); Bowsher v. Synar, 478 U.S. 714 (1986) (removal authority); INS v. Chadha, 462 U.S. 919 (1983) (legislative veto); Bucklev v. Valeo, 424 U.S. 1, 118-40 (1976) (appointment power). 25 See Buckley v. Valeo, 424 U.S. 1, 124-26 (1976 ). 26 See, ~, Train v. NRDC, 421 U.S. 60, 79 (1975) (noting that EPA is required to approve state plans providing for timely attainment and subsequent maintenance of ambient air standards otherwise complying with amended Clean Air Act). The Supreme Court has upheld Congress' "adoption" of state authority as less of a constitutional delegation than a consent to state legislation. See Prudential Ins. Co. v. Ben~amin, 328 U.S. 408, 438-40 & n. 51 (1946) (McCarran-Ferguson Act). But see, ~, (continued...) particularly critical if delegated authority were to be exercised by private associations or cooperatives. Courts have been wary of allowing the exercise of coercive power by private parties, and could be expected to demand comprehensive administrative review of actions directly affecting the public and implicating powers normally reserved to governmental actors.27 Moreover, because the purpose of the limits on delegation is to afford a statutory standard for courts to enforce, the doctrine suggests that some form of judicial review must be provided,28 although it may be permissible to preclude review by whole classes of affected parties, such as consumers of medical care.29 Finally, it bears mention that attempts to provide an external check on congressional delegation by providing for referenda or other direct democratic controls (as opposed to checks in the form of Executive or Judicial Branch review) are not constitutionally required. Indeed, these referenda may 26(.. continued) Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 164 (1920) (Congress cannot transfer legislative authority concerning maritime law to states). To the extent the ceding of state authority to a cooperative is involved, state non-delegation law would be implicated. 27 See, ~, Sunshine Anthracite Coal Co., 310 U.S. at 399 ("[s]ince law-making is not entrusted to the industry, this statutory scheme is unquestionably valid"); Seauioa Oranae Co. v. Yeutter, 973 F.2d 752, 759 (9th Cir. 1992) (Agricultural Marketing Agreement Act's requirement of producer approval of marketing orders were a legitimate condition precedent to exercise of Secretary's "'ultimate authority"'); United States v. Frame, 885 F.2d 1119, 1128-29 (3d Cir. 1989) (upholding authority of beef producers to collect assessments and plan disbursements when "the amount of governmental oversight of the program is considerable"); Evanston Ins. Co. v. Merin, 598 F. Supp. 1290, 1311-12 (D.N.J. 1984) (delegation of authority to pay claims of insureds upon insolvency of a surplus lines insurer upheld based on supervisory control of state insurance commissioners); Prudential Pro~ert~ & Casualty Co. v. Insurance Commission of South Carolina Dept. of Insurance, 534 F. Supp. 571, 580 (D.S.C. 1982) (upholding constitutionality of state reinsurance facility responsible for apportioning losses based on oversight of state insurance commission) ; aff'd, 699 F.2d 690 (4th Cir. 1983); L. Tribe, American Constitutional Law 368-69 (2d ed. 1988) (delegation to private actors disfavored). 28 See Touby, 111 5. Ct. at 1757-58. 29 See Block v. Com~unjty Nutrition Inst., 467 U.S. 340, 346-47 (1984) themselves be the source of constitutional infirmities. Prior delegations to industry groups have been redeemed on the ground that any resulting referenda were less an exercise of quasi- legislative authority by interested parties than a condition for enactment required by Congress.30 Moreover, if the legislative scheme explicitly provides a democratic check on the health care cooperative's officials or administrators -- such as referenda or the election of repre- sentatives -- those provisions would almost certainly be subject to the constraints of the Equal Protection Clause, which would limit any attempt to define narrowly the electorate.31 Addition- ally, First Amendment concerns might be implicated, and the various constitutional rules govern ingolitical elections might have to be followed in such referenda.3 Were regional coopera- tives subject to such checks, novel questions concerning the composition of the relevant electorates could be raised. F. The principles stated above should answer or help analyze the questions you posed to me. Thus, for example, you asked whether, if money is required to be paid through a health care cooperative, must that entity be a government agency. The answer from precedent appears to be "no," but that there may be a requirement of some form of control by a federal official if the cooperative is a private entity. In addition, if the cooperative is a private entity, we have not found any requirement under the non-delegation doctrine that it must be governed by a representative body chosen by election, but we can certainly envision a court so holding in the future. 30 See, ~, Parker v. Brown, 317 U.S. 341, 352 (1943); Currin, 306 U.S. at 16. 31 See New York City Bd. of Estimates v. Morris, 489 U.S. 688 (1989); Ball v. James, 451 U.S. 355, 362-72 (1981) (exercise of general governmental powers over entire geographic area served by body, as opposed to a special-purpose unit of government primarily affecting a limited class of constituents, subject to a one-person, one-vote system of election); cf. Buckley v. Valeo, 424 U.S. at 93 (equal protection analysis identical under Fifth and Fourteenth Amendments). 32 See Cal-Almond, Inc. v. Department of Agriculture, 960 F.2d 105 (9th Cir. 1992) (First Amendment considerations might be relevant to referenda among agricultural producers). But see Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973) (referendum concerning irrigation district not governed by same constitutional principles covering political elections). The question arose as to whether a private or semi-private health care cooperative could be delegated the power to tax its members by raising premiums. As noted above, the Supreme Court has ruled that the taxing power is not subject to special non- delegation principles. Therefore, the delegation of such power would seem to be no more or less beyond Congress' power than delegations of other types of federal power. However, no precedent that we have found confronts the issues raised by a private entity directly receiving payments from private citizens for what might be construed as a government service or entitlement. You also asked about the authority of the Federal Government to impose spending limits on health care cooperatives established in the states or regions. If the question is whether the Federal Government can stop a state from spending its own revenues, the answer appears to be "no." However, the Government can achieve the same objective by creative use of restrictions on receiving federal grants or benefits; i.e., federal funds could be reduced or eliminated if states spend beyond a specified amount. If the question is the power of the Federal Government to limit spending by a private health care cooperative, the answer is likely that it can so regulate, although, as noted above, there may be limits on the Government's ability to stop individuals from obtaining and paying for health care that is medically necessary. Finally, you asked whether there is a difference for legal purposes whether the Federal Government uses a cooperative federalism scheme such as the Clean Air Act (under which the Federal Government implements the statute if a state fails to do so, pursuant to an approved federal plan) or simply encour- ages/forces the states through incentives to adopt a health care regulatory system. While numerous different types of issues might arise depending upon which type of scheme is used, we see no difference at the outset because both would appear to be valid ways for the Federal Government to act. G. You have also raised the issue concerning the type of command there should be over a federal entity established to govern a federal health care system. Although this would appear to be largely a policy call, I wish to note that the Department of Justice has over the years been an active advocate of preserving the maximum amount of control for the President. We have found that numerous problems for the Presidency arise when admin- istrative agencies are headed by officers given independence from the Chief Executive. In recent years, many questions have cropped up concerning the precise nature of the independence of such officers, and whether Article II of the Constitution re- stricts the amount of freedom from the President that can be given to an officer who is executing the law. Consequently, we urge that very serious thought be given before any agency is created whose officers are not freely appointed by the President (with Senate approval, of course) and freely removable by him as well. * * * * * I trust that this memorandum provides you and your staff with helpful guidance as you consider which of many options to recommend. I look forward to working with you further on this important and exciting project. As explained earlier, we at the Department of Justice should be able to provide the Task Force with more focused views on constitutional and other issues as the options are narrowed and a more specific scheme is crafted. If you have questions about any of the material in this memorandum, please call me at 514-3602. Unfortunately, I will be away from my office most of the week of March 8 because I have a court appearance in California involving a major constitutional issue. In my absence, as I mentioned to you earlier, please feel free to contact Barbara Biddle (514-2541). Most of the work on this memorandum was done by Robert Zener and Edward Swaine in the Civil Division, and Barbara can consult with them or others here, and should be able to help you until I return on March 15.