dicate should be strictly construed. Under these circumstances, it would, in my opinion, fall within the general rule that a statute is not to be given a retroactive effect unless its terms clearly so require. Not only do the words of the act of May 26, 1936, not so require, but if its language is given its ordinary grammatical meaning, it has merely a prospective application.

This conclusion is to some extent supported by the use of the word "hereafter" at the beginning of the statute. Obviously there could be no withholding under the terms of the statute until after its enactment, in other words, hereafter, and this word may be deemed surplusage if it refers only to the withholding of compensation. If the word is to be given any significance, therefore, it must be construed as qualifying the disallowances which are the occasion for the withholding of compensation no less than the withholding itself.

I therefore conclude that the act does not permit the withholding of compensation on account of a payment as to which the General Accounting Office, in its statement of the account of a disbursing officer, disallowed a credit prior to the passage of the act.

Respectfully,

HOMER CUMMINGS.

RENDITION OF OPINIONS ON CONSTITUTIONALITY OF STATUTES-FEDERAL HOME LOAN BANK ACT

The head of a department is under no duty to question or to inquire into the constitutional power of the Congress. There can rarely be proper occasion for the rendition of an opinion by the Attorney General upon the constitutionality of a measure after it has become law, and it is not within the province of the Attorney General to declare an act of the Congress unconstitutional-at least where it does not involve conflict between the prerogatives of the legislative and executive departments.

It is not within the scope of the Attorney General's duty to render opinions for the guidance of private persons who engage in transactions with the United States.

Suggested that the instant request for an opinion as to the constitutionality of the creation of the Federal home-loan banks under the Federal Home Loan Bank Act be withdrawn.

The PRESIDENT.

MARCH 26, 1937.

you

MY DEAR MR. PRESIDENT: In response to a request from the Federal Home Loan Bank Board that obtain my opinion on "the constitutionality of the creation of the Federal home-loan banks under the Federal Home Loan Bank Act" (July 22, 1932, c. 522, 47 Stat. 725; U. S. C., title 12, secs. 1421 et seq.) you submitted the matter to me, and suggested that, if I knew of no objection, I comply with the request. I expressed reluctance to do so because of a well-settled practice to which I shall hereafter refer at greater length and which, it seemed to me, ought not to be abandoned. Thereafter, with your letter of January 5, 1937, you transmitted to me a letter addressed to you by the Chairman of the Board under date of December 31, 1936, resubmitting the question for further examination.

Save in exceptional cases it has been the practice of Attorneys General to refrain from rendering opinions as to the constitutionality of enactments of the Congress after their approval or disapproval by the President. While the bill which became the Federal Home Loan Bank Act was awaiting executive action, my predecessor was asked to let the President know whether, in his judgment, there were any objections to its approval. Under the established practice my predecessor's report is not available to the public, but I think I may say, subject to your approval, that it suggested no constitutional or other objection to the bill-nor do I find any.

I think I should take this occasion, however, to stress the soundness of the rule which I have mentioned and the grave objections to the rendition of opinions by the Attorney General upon requests from the heads of the Federal Departments and independent establishments concerning the constitutionality of laws they have been appointed to administer. There is no warrant for such requests as the presumption of validity is binding upon them and they must act accordingly.

In my opinion of August 16, 1935 (38 Op. 252, 253), to the Secretary of the Treasury, concerning the duty of disburs

ing officers to make the payments required by the Agricultural Adjustment Act (48 Stat. 31), I said:

"Ordinarily, I think, it does not lie within the province of a ministerial officer to question the validity of a statute which, insofar as he is concerned, merely imposes upon him a proper duty and has no bearing upon his constitutional rights. As stated by the Supreme Court in Aikins v. Kingsbury, 247 U. S. 484, 489, 'he who would successfully assail a law as unconstitutional must come showing that the feature of the act complained of operates to deprive him of some constitutional right.' It is not sufficient that the statute may adversely affect the rights of others; and it can make no difference that others who claim to be injured are assailing its constitutionality.'

See also Smith v. Indiana, 191 U. S. 138, 148; Columbus & Greenville Ry. v. Miller, 283 U. S. 96, 99.

The head of a department is under no duty to question or to inquire into the constitutional power of the Congress (36 Op. 21, 25). Such matters arise in the Congress, or with the President, and are not "questions of law arising in the administration of his department," within the contemplation of the statute under which the heads of the departments are authorized to require my opinion (U. S. C., title 5, sec. 304). This provision has been long construed as limiting the scope of opinions to specific cases, actually arising, in which the head of a department is authorized to make some determination, or to take some action, in connection with which some guidance is required.1

Assuming, therefore, that in the administrative branch of the Government only the President ordinarily can have

120 Op. 463, 464; 32 Op. 531, 536.

The Attorneys General have at times had occasion to declare their inability under the statutes to render opinions for the guidance of the Congress. 36 Op. 532, and other opinions therein cited. (A comprehensive list of such opinions appears in the Congressional Record of March 26, 1936, v. 80, p. 4370). In 36 Op. 21, 25, my predecessor had occasion to point out that questions concerning the constitutionality of contemplated legislation do not arise in the department which would administer the statute, if enacted. In one instance the Congress, recognizing these statutory limitations, specifically "authorized and directed" the Attorney General to render to the Secretary of War an opinion involving the constitutional power of the Congress in connection with certain contemplated legislation, and required the Secretary of War to transmit the opinion to the Congress. 25 Op. 195.

proper interest in questioning the validity of a measure passed by the Congress, and that such interest ceases when he has expressed his approval or disapproval, it necessarily follows that there rarely can be proper occasion for the rendition of an opinion by the Attorney General upon its constitutionality after it has become law.

Necessarily when the Attorney General, at the request of the President, is considering pending legislation, he must often point out doubts and uncertainties of varying degrees of merit and must deal with the matter in a practical and, at times, argumentative fashion. Since such opinions are merely for the assistance of the President and are ordinarily regarded as confidential,2 the Attorney General may state his views fully and freely, with advantage to the President and without embarrassment to any one. To illustrate the manner of treatment sometimes required, I quote below from two unpublished opinions rendered during a former administration on proposed legislation, connected in no way with the legislation which has drawn forth this letter.

(A) "The question is one which has been debated back and forth by lawyers, legislators and writers on constitutional law * * * Substantial arguments have been adduced on both sides of the question. The strict constructionists take the view that Congress has not the power and those inclined to more liberal views reach the opposite conclusion * * *. It is one of those questions where a little statesmanship must be added to legal arguments to reach a sound conclusion. * *Practical considerations lead to the conclusion that the liberal view, sustaining the power, should be adopted. * * * 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."

(B) "In my judgment it would not be wise to base objection to this measure on constitutional grounds. This measure falls into a class with innumerable others that

2 A number of such opinions have been published. 5 Op. 254, 259; 10 Op. 426, 435; 12 Op. 337, 347; 18 Op. 18, 27; 25 Op. 194, 213-218; 25 Op. 422; 27 Op. 327, 330; 30 Op. 88; 37 Op. 403, 407.

have been enacted by Congress since the organization of the Government and which, if constitutional at all, would have to be sustained under the so-called general welfare clause because there is no specific authority elsewhere in the Constitution. The question as to the extent of authority of Congress under the general welfare clause has never been decided by the Supreme Court of the United States and is not likely to be. An attack on this measure on the ground that it is not authorized by the Constitution would be met instantly with the argument that many measures open to the same objections have been approved during this and prior administrations; and to single out this one measure for constitutional criticism would result in inconsistency which could not be defended."

The situation is fundamentally different when the Attorney General is asked to pronounce upon the constitutionality of a statute after it has been passed by the Congress and approved by the President. Both then have evidenced their determination that the measure is constitutional. What before remained in the sphere of debate has now been elevated to the domain of law. Should the Attorney General now vouchsafe his opinion holding the legislation unconstitutional, he would set himself up as a judge of the acts of the Congress and of the President. Moreover, should a practice of rendering opinions upon requests such as that submitted in this instance prevail, the occasion surely would arise when, entertaining doubts which he could not conscientiously put aside, he would be compelled to declare, with disturbing public effect, the invalidity of a statute, while in effect voicing only a personal view that might ultimately be rejected by the courts. Of course, if the Attorney General should regard a statute as clearly constitutional, an opinion to that effect might not be immediately harmful-aside from the fact that he might later be called

Since that time the Supreme Court has had occasion, in United States v. Butler, 297 U. S. 1, 66, to approve the "Hamiltonian position" of the broad scope of the spending power under the general welfare clause-a view which I had ventured to rely upon in my opinion of August 26, 1935, 38 Op. 258, thus, apparently, ending one phase of the historic controversy regarding the interpretation of the general welfare clause.