the opinions stating that the treaties had been superseded, an Executive order was issued on February 15, 1956, which eliminated the exemption that had been afforded to resident treaty aliens by the 1951 regulations (E.O. 10659, 21 F.R. 1079, 1082). In immigration and naturalization cases involving the treaties since 1956 the decisions have been divided.10 In 1963 the Department of Justice took the position, in a brief filed with the Supreme Court, that the exemption under the treaties was not affected by the 1951 amendments to the statute.11 At the instance of the Department of State bills were introduced in Congress in 1962 and 1963 which were designed to clarify the right of the United States to honor its obligations under the treaties (H.R. 12036, 108 Cong. Rec. 9830; H.R. 6440, 109 Cong. Rec. 8977). No action was taken on either bill.12 It does not appear that any consideration was given to this problem at the time that Congress adopted the Military Selective Service Act of 1967, June 30, 1967, Public Law 90-40, 81 Stat. 100. The pertinent statutory language has not been changed since the 1951 amendments were enacted. II Since differing views have been expressed on this question by the courts and because it is important that this Nation 10 Ungo v. Beechie, 311 F. 2d 905 (C.A. 9, 1963), cert. denied, 373 U.S. 911 (1963), said the treaties had not been superseded. But see Petition for Naturalization of Rego, 289 F. 2d 174, 177 (C.A. 3, 1961), reversing 185 F. Supp. 16 (D.N.J. 1960). 11 Brief in opposition to petition for certiorari, Ungo v. Beechie, supra, October Term, 1962, No. 951, pp. 7–10. 1 At about this time, the Selective Service System instituted an informal practice permitting a resident treaty alien to be relieved from induction. This practice has continued to date. Under the current procedure an alien applying for exemption is required to sign a form in which he acknowledges that "I have read and understand the provisions of" section 315 of the Immigration and Nationality Act. Compare p. 4, supra. Such relief from service has not been extended, however, to treaty aliens who are physicians. Alien medical specialists are liable to the doctor draft, under a 1967 amendment to the selective service law, even if they come to this country after attaining the age of 26 (81 Stat. 102). The Director of Selective Service acknowledges that if treaty aliens generally are entitled to be exempted from military service as a matter of law, then those who are medical specialists likewise are entitled to be exempted. I agree that the legal position of these medical specialists is the same, for the purposes of exemption and consequent bar to citizenship discussed in this opinion, as that of younger resident treaty aliens affected by the military draft. 244-574 - 78 - 26 honor treaty obligations that remain in force, my opinion has now been sought on the relationship of the treaties to the selectice service law. 18 13 At the outset it should be noted that the treaties should not be deemed to have been abrogated or modified by statute unless the purpose of Congress to do so has been clearly expressed. Cook v. United States, 288 U.S. 102, 120 (1933). In determining the intent of Congress in the 1951 amendments, it is entirely appropriate to give weight to the fact that Congress did not refer to the treaties at all in the extensive legislative history of these amendments. Ibid. Repeals by implication are not favored by the law. Johnson v. Browne, 205 U.S. 309, 321 (1907). The rule is well established that effect must be given to both the treaties and the statute if by any reasonable interpretation that can be done. United States v. Lee Yen Tai, 185 U.S. 213, 221-22 (1902). 14 The courts which have said that the treaties were superseded have either said or assumed that the exemption from service of resident aliens under the treaties was directly forbidden by section 6(a). However, as noted above, other courts have reached the opposite conclusion. Thus, the opinion in Schenkel v. Landon, 133 F. Supp. 305 (D. Mass. 1955), considered the problem at length and came to the conclusion that section 6(a) was not inconsistent with the treaties. The most recent judicial decision on this question, Ungo v. Beechie, 311 F. 2d 905 (C.A. 9, 1963), cert. denied, 373 U.S. 911 (1963), also finds no inconsistency.15 The decision considered the doctrine that repeals by implication are not favored by the law, and concluded that section 6(a) did not necessarily conflict with an earlier treaty between the United States and El Salvador (treaty of February 22, 1926, 46 Stat. 2817).16 18 The Department of State formerly expressed the view that sec. 6(a) prohibited the exemption of resident aliens pursuant to treaty, while seeking legislation to change this result. E.g., letter to the Vice President transmitting proposed legislation, March 15, 1963. This does not, of course, preclude a later change in interpretation. United States v. Philadelphia National Bank, 374 U.S. 321, 348-49 (1963). 14 United States v. Rumsa, 212 F.2d 927, 932 (C.A. 7, 1954), cert. denied, 348 U.S. 838 (1954); Petition for Naturalization of Rego, 289 F.2d 174, 177 (C.A. 3, 1961); United States v. Gredzens, 125 F. Supp. 867 (D. Minn. 1954). 15 The recent decision of the Ninth Circuit in Lapenieks v. I.&N.S., 389 F.2d 343 (C.A. 9, 1968) raises different issues. In that case a resident treaty alien had received an exemption in 1952 pursuant to a treaty, and in 1953 was I have concluded that Ungo suggests the sounder construction of section 6(a). The 1951 amendment to that section is not a freestanding provision barring exemption to all resident aliens. It is, if read in context, a limitation only on a special statutory grant of power conferred on the President and therefore does not conflict with the treaties. Section 6(a) since 1951 has read in pertinent part: "*** persons in other categories to be specified by the President who are not citizens of the United States, shall not be required to be registered under section 3 and shall be relieved from liability for training and service under section 4, except that aliens admitted for permanent residence in the United States shall not be so exempted." 50 U.S.C. App. 456(a); 81 Stat. 101. This section gives the President power to create exemptions for aliens not exempt under any other law, except of course that exemptions for resident aliens cannot be so created. The language does not say that resident aliens shall not be exempted under any provision of law (such as a treaty), but only that they shall not be exempted pursuant to section 6(a). Similarly, the power specifically given to the President in section 4(a), to grant applications for exemption from service for aliens other than those admitted for permanent residence, does not forbid the exemption of resident aliens under some other authority. The Department of State has said that the treaty provisions may be viewed as self-executing, so that under the treaties the Executive has both the power and the obligation to exempt resident aliens from military service. Having been duly ratified with the advice and consent of the Senate, and not having been set aside by subsequent legislation, the treaty provisions represent an independent source of law as fully as if they were separate sections of the Military Selective Service Act of 1967 itself. I conclude that the treaties in question, as part required to sign an acknowledgment that he would thus be barred from citizenship. When the regulations were amended in 1956 to eliminate the exemption for treaty aliens (see p. 4, supra) he was reclassified and summoned to service, but was not inducted because he was found physically unfit. The only question presented on these facts was whether he was "relieved" from military service within the meaning of section 315 of the Immigration and Nationality Act (see note 5, supra) so that he was barred from citizenship. The court did not discuss the effect of the 1951 amendments to the selective service law on the treaties. 16 The treaty is no longer in effect, having been abrogated in 1958. of the "supreme Law of the Land" under the Constitution, must be honored by the United States as they apply to resident aliens. The foregoing conclusion means that the treaty rights of resident aliens will be recognized. However, since the treaties confer an exemption from service but not from registration, resident aliens must register and apply for relief under the treaties. Cf. Moser v. United States, 341 U.S. 41, 45-46 (1951). A treaty alien who applies for and is granted such relief will be subject to the bar against eligibility for citizenship imposed by section 315 of the Immigration and Nationality Act." A related consequence is that, as an alien ineligible for citizenship, he will thereafter be excludable should he leave the United States and attempt to return as an immigrant.18 But these are consequences he voluntarily assumes in electing to secure relief from military service and forego eligibility for citizenship. The treaty alien has the "choice of exemption and no citizenship, or no exemption and citizenship." Moser v. United States, supra, 341 U.S. at 46. Sincerely, RAMSEY CLARK. 17 Imposition of such a condition on the grant of relief from service is not inconsistent with our treaty obligations. Moser v. United States, supra. The effect of sec. 315 has been held to be premised on "a knowing and intentional waiver" of the right to citizenship by an alien who procures exemption from military service. Bachmann v. United States, 327 F.2d 415 (C.A. 9, 1964); Matter of R.E., 9 I. & N. Dec. 740 (A.G. 1962). In this connection, I understand the Department of State has suggested that treaty aliens could make application for relief through their respective embassies to the Department of State, which would forward such applications to the Selective Service System. Such a procedure appears to be an appropriate technique for determining eligibility to invoke treaty rights. In any such procedure, however, there must be a definite application for relief, signed by the alien, in which he acknowledges that he understands the consequence of a permanent citizenship bar under section 315. (The procedure in this regard, reflecting the requirements of that section of the Immigration and Nationality Act, is to be contrasted with the procedure utilized with respect to treaty aliens prior to enactment of that act in 1952. See note 12, supra.) 18 Immigration and Nationality Act, sec. 212(a) (22), 66 Stat. 184, 8 U.S.C. 1182 (a) (22); the possibility of relief from such exclusion is limited, sec. 212 (c) of the act, 8 U.S.C. 1182 (c). MEMBER OF CONGRESS-APPOINTMENT TO CIVIL OFFICE PRIOR TO PAY INCREASE Article I, section 6, clause 2 of the Constitution does not prohibit the appointment of a legislator to an office when at the time of appointment it is possible but not certain that a proposed salary increase for that office may receive final approval at a future date. Hon. MELVIN R. LAIRD JANUARY 3, 1969. DEAR MR. LAIRD: In your capacity as Secretary of Defensedesignate, you have requested my advice as to whether commencing your term as a Member of the House of Representatives for the 91st Congress would preclude your appointment as Secretary of Defense in accordance with the announced intention of the President-elect to nominate you for that position. The question arises in view of the possibility that the salary payable to the Secretary of Defense may be increased early in this session of the 91st Congress pursuant to section 225 of the Federal Salary Act of 1967, P.L. 90-206, 81 Stat. 642. I have seen the memorandum which you received from the Comptroller General and agree with the result reached by him. The pertinent provision of the Constitution is Article I, section 6, clause 2, which provides: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; ** *." [Italics added.] The constitutional language prohibits the appointment of a legislator to an office the compensation of which "shall have |