Authority of the Secretary of the Treasury to Order the Closing of Certain Streets Located Along the Perimeter of the White House ( 1995 )

Authority of the Secretary of the Treasury to Order the Closing
of Certain Streets Located Along the Perimeter of the White
House
18 U.S.C. §3056 grants the Secretary of the Treasury broad authority to take actions that are necessary
and proper to protect the President, including the authority to order the closing o f certain streets
located along the perimeter o f the White House.
M ay 12, 1995
M e m o r a n d u m O p in io n for th e G eneral C oun sel
D epartm ent o f th e T reasury
This is in response to your request for a legal opinion from the Office of Legal
Counsel (“ OLC” ) on whether the Secretary of the Treasury (“ Secretary” ) has
the authority to order the closing to vehicular traffic of (1) Pennsylvania Avenue
between 17th Street and Madison Avenue, (2) State Place, and (3) the segment
of South Executive Avenue that connects into State Place in furtherance of his
responsibility to protect the President under 18 U.S.C. §3056. Based on a review
of §3056 and related statutes, their legislative histories, and relevant court and
OLC opinions, we conclude that §3056 grants the Secretary broad authority to
take actions that are necessary and proper to protect the President. In light of
the recommendations of the White House Security Review and the United States
Secret Service’s unique expertise and special responsibility in this matter, we agree
with your conclusion that § 3056 authorizes the actions contemplated by the Sec­
retary.
I. Background
The White House Security Review, which was recently established by former
Treasury Secretary Bentsen to examine White House security issues, has deter­
mined that “ there is no alternative to prohibiting vehicular traffic on Pennsylvania
Avenue that would ensure the safety of the President and others in the White
House complex from explosive devices carried by vehicles near its boundaries.”
Request for Legal Opinion from Edward S. Knight, General Counsel, U.S. Depart­
ment of Treasury, to Walter E. Dellinger, III, Assistant Attorney General, Office
of Legal Counsel, U.S. Department of Justice 1 (May 10, 1995). You have
informed this Office that in light of the Secretary’s responsibilities to protect the
President under § 3056, he is considering ordering the closing to vehicular traffic
of portions of three streets that bound the grounds of the White House: (1)
Pennsylvania Avenue between 17th Street and Madison Avenue, (2) State Place,
and (3) the segment of South Executive Avenue that connects into State Place.
Id. You have also informed this Office of your view that the conclusion of the
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White House Security Review provides sufficient factual support for the Secretary
to exercise his authority to close the streets mentioned above. Id.
W e have been informally advised that in the past, the Secret Service has taken,
on a temporary basis, actions similar to those contemplated. These actions have
included closing streets and portions of highways to protect the President while
traveling, closing parking garages to safeguard him against bomb threats,
restricting airspace over the President, and cordoning off areas in hotels in which
the President was present.1 The Secret Service has also, on occasion, temporarily
closed certain streets around the perimeter o f the White House, including Pennsyl­
vania Avenue.2
II. Legal A nalysis
A. Statu tory A u thority
1. Section 3056
Section 3056 provides, in pertinent part, that:
[u]nder the direction o f the Secretary of the Treasury, the United
States Secret Service is authorized to pro tect. . .
(1) The President, the Vice President (or other officer next in the
order o f succession to the Office of President), the President-elect,
and the Vice President-elect [and]
(2) The immediate families of those individuals listed in paragraph
( 1).
18 U.S.C. § 3 056(a)(lM 2).
In addition to that broadly-stated authority, officers and agents of the Secret
Service are authorized, under the direction of the Secretary, to perform certain
enumerated functions,3 and to “ perform such other functions and duties as are
1W e have been advised by the Department o f the Treasury that the Secret Service has historically taken these
steps pursuant to its authority under 18 U .S.C . §§3056 and 1752, and 3 U.S.C. §202. W e have also been informed
that the Secret Service generally takes such actions with the assistance o f state and local law enforcement officials.
2 The Department o f the Treasury has inform ed us that East Executive Drive was permanently closed to vehicular
traffic by the National Park Service in 1985. According to the Department o f the Treasury, when the Park Service
closed East Executive Drive, it consulted with the District o f Colum bia's Department o f Transportation but did
not file an application for street closing un d er the District o f C olum bia’s street closing procedures.
3 Such functions include the ability to:
(A ) execute w arrants issued under th e laws o f the U nited States;
(B) carry firearms;
(C) make arrests without warrant fo r any offense against the U nited States committed in their presence,
o r for any felony cognizable under the laws o f the United States if they have reasonable grounds to believe
that the person to be arrested has com m itted or is committing such felony;
(D ) offer and pay rewards for services and information leading to the apprehension o f persons involved
in the violation or potential violation o f those provisions o f law w hich the Secret Service is authorized
to enforce;
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Authority o f the Secretary o f the Treasury to Order the Closing o f Certain Streets Located Along
the Perimeter o f the White House
authorized by law.” 18 U.S.C. § 3056(c)(1)(F). Aside from expressly granting cer­
tain powers generally afforded federal law enforcement personnel, the statute does
not attempt to enumerate the specific actions the Secret Service may take in ful­
filling its responsibility to protect the President.
The legislative history of § 3056 also does not include any enumeration of the
specific actions the Secretary may take to protect the President. Although the
Secret Service has routinely protected the President since the assassination of
President McKinley in 1901, see S. Rep. No. 82-467, at 2-3 (1951), Congress
did not provide explicit formal authority for this role until 1951. See Pub. L.
No. 82-79, 65 Stat. 121, 122 (1951). Neither the congressional report language
nor the floor debates concerning the authorizing legislation elaborate upon the
activities and functions Secret Service officials may undertake in protecting the
President. Moreover, subsequent amendments to §3056 pertaining to the Secret
Service’s protection duties merely expanded the group of officials over which the
Secret Service has protective responsibilities, without delineating how the protec­
tion is to be accomplished.
Although both the language of §3056 and its legislative history are silent as
to specific protective acts, the language and legislative history of 18 U.S.C. § 1752,
which authorizes the Secretary to designate and regulate temporary residences of
the President, provide some insight into the scope of the Secret Service’s authority
under §3056 with respect to the environs of the White House. Section 1752 was
apparently intended to provide the Secret Service with authority to provide the
same degree of protection for the President outside the vicinity of the White House
as Congress believed the Secret Service could exercise, under §3056, within the
vicinity of the White House. Section 1752 grants the Secretary the authority to
“ designate by regulations the buildings and grounds which constitute the tem­
porary residences of the President.” 18 U.S.C. § 1752(d)(1). It also allows the
Secretary “ to prescribe regulations governing ingress or egress to such buildings
and grounds and to posted, cordoned off, or otherwise restricted areas where the
President. . . is or will be temporarily visiting.” Id. § 1752(d)(2).
The legislative history of the statute suggests that, when enacting § 1752, Con­
gress believed the Secret Service already had similar or greater authority to control
access to the environs of the White House. In 1969, Senator Hruska introduced
S. 2896, stating that its purpose was “ to provide more effective control over
unauthorized entry into the temporary residence of the President, and any buildings
which are being temporarily used as executive office buildings.” 115 Cong. Rec.
25,436 (1969) (statement of Sen. Hruska). The Senate Judiciary Committee report
accompanying S. 2896 stated that the bill would “ extend Federal protection to
temporary residences and offices of the President.” S. Rep. No. 91-1252, at 6
(E) pay expenses for unforeseen emergencies o f a confidential nature under the direction o f the Secretary
o f the Treasury and accounted for solely on the Secretary’s certificate.
18 U.S.C. § 3056(c)(1).
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Opinions o f the Office o f Legal Counsel in Volume 19
(1970) (emphasis added). The report also mentioned that the bill was “ designed
to provide a uniform minimum of Federal jurisdiction for Presidential security
when the President is on temporary visits,” id., noting the testimony of the
Director o f the Secret Service that “ [f]rom a security standpoint, the President
is most vulnerable when he is outside the White House complex traveling or
residing temporarily in some other section of the country” and “ the enactment
of . . . [the] legislation is necessary in order to guarantee the safety of the Presi­
dent when he is temporarily absent from the Executive residence.” Id. at 7.
Finally, reflecting the belief that federal law already was adequate to ensure
protection of the President within the vicinity of the White House, the report
opined that “ [although the Secret Service is charged with protecting the person
o f the P resid en t. . . there is, at the present time, no Federal statute which specifi­
cally authorizes them to restrict entry to areas where the President maintains tem­
porary residences or offices.” Id.Similar themes were expressed during floor debate on the bill. In describing
the problems confronting the Secret Service when protecting the President outside
o f W ashington, Senator McClellan stated:
Protecting the President . . . is a formidable task for the Secret
Service, which is charged with safeguarding the personal life of
the President. As difficult as this task is, however, it is rendered
even more difficult because the Secret Service’s present powers are
somewhat limited. Title 18, section 3056 of the United States Code
authorizes the Secret Service to protect the life of the President,
but does little more. Consequently, the Service must rely upon a
patchwork of State laws and local ordinances and local officers to
clear areas for security perimeters, to provide for free ingress and
egress when the President is visiting, and to protect the President’s
private homes from trespassers.
116 Cong. Rec. 35,651 (1970) (statement o f Sen. McClellan). Moreover, Senator
Hruska, speaking in support of the legislation, declared:
[Under S. 2896, the] Secretary of the Treasury would be authorized
to designate by regulations buildings and grounds which are tem­
porary residences of the President and temporary offices of the
President and his staff. The Secretary also would be authorized to
prescribe regulations for admission to such buildings and grounds
and to post or cordon off restricted areas where the President is
or will be temporarily visiting . . . . It would be unconscionable
not to recognize the obvious fact that the President’s vulnerability
is maximized when he is traveling or residing temporarily in
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Authority o f the Secretary o f the Treasury to Order the Closing o f Certain Streets Located Along
the Perimeter o f the White House
another section of the country. It would be unconscionable not to
recognize the obvious fact that the Secret Service does not presently
possess adequate Federal authority during these most vulnerable
occasions. This body cannot ignore the obvious responsibility and
duty it has at this moment to create the needed protection and
authority.
116 Cong. Rec. 35,653 (1970) (statement of Sen. Hruska).4
It is clear that Congress did not perceive that it was giving the Secretary greater
power to protect the President when he was away from the White House than
when he was within it. Rather, the language and legislative history of § 1752
reflect a belief that the authority afforded by § 1752 with respect to temporary
residences already was available with respect to the President’s permanent resi­
dence, the White House.
Section 1752 plainly grants the Secretary authority to limit ingress and egress
to an area where the President will be visiting to create a security perimeter, even
when creating such a perimeter will require the closing of a public street to vehic­
ular traffic. Since congressional action did not reflect any intent to give the Sec­
retary greater authority under § 1752 than exists under § 3056, it would be incon­
gruous for us to conclude that the Secretary has such authority with respect to
temporary presidential residences but lacks the authority to limit ingress and egress
to an area to create an appropriate security perimeter around the WTiite House.
Turning back to the language of § 3056, we note again that Congress painted
the Secret Service’s Presidential protection authority with a broad brush. That
treatment seems reasonable, given the nature of Presidential protection services.
Protecting the President requires a certain amount of flexibility to respond quickly
to changing and often potentially dangerous situations. Too tight a rein on the
authority of the Secret Service would compromise Presidential security. As we
have stated in affirming the authority of the Secret Service, under §3056, to
cordon off the area in the vicinity of the White House as a protective measure
in anticipation of large-scale demonstrations, “ the Secret Service may not have
unlimited powers in protecting the President but its powers are broader than rou­
tine public safety measures. The test to be applied, it seems, is whether, given
the overwhelming interest in protecting the President and his performance o f his
duties, the measures taken are reasonable under the circumstances.” Memorandum
for Honorable Robert E. Jordan, III, General Counsel, Department of the Army,
from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel
at 11 (Nov. 12, 1969).
Relevant case law confirms this broad view. The Supreme Court has recognized
that “ [t]he Nation undoubtedly has a valid, even an overwhelming, interest in
4 S. 2896 was passed by the Senate on Oct. 8, 1970, see 116 Cong. Rec. 35,654 (1970), and incorporated into
the Omnibus Crime Control Act o f 1970, Pub. L. No. 91-644, tit. V, § 18, 84 Stat. 1880, 1891 (1971).
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protecting the safety of its C hief Executive and in allowing him to perform his
duties without interference from threats o f physical violence.” Watts v. United
States, 394 U.S. 705, 707 (1969). See also White House Vigil fo r the ERA Com­
m ittee v. C lark , 746 F.2d 1518, 1528 (D.C. Cir. 1984) (“ At stake is not merely
the safety o f one man, but also the ability of the executive branch to function
in an orderly fashion and the capacity of the United States to respond to threats
and crises affecting the entire free world” ). Accordingly, courts have construed
the Secretary’s authority under §3056 broadly, even in the face of constitutional
challenges. In fact, the only limitation the courts have recognized on the Sec­
retary’s authority has been the Constitution. Where, for example, first amendment
rights have been implicated, courts have balanced the Secret Service’s interest
in protecting the President against the first amendment rights of those burdened
by such actions.5
Even in the first amendment context, however, courts have been careful to allow
the Secret Service latitude in acting to protect the President. In a decision con­
cerning the Secret Service’s denial of a White House press pass to a journalist,
the D.C. Circuit required the Secret Service to publish the standards it uses to
determine W hite House press pass eligibility. In delineating the requirements
imposed on the Secret Service, however, it agreed with the Secret Service that
the first amendment did not require “ detailed articulation of narrow and specific
standards or precise identification of all the factors which may be taken into
account in applying [the] standard.” Sherrill, 569 F.2d at 130. The court stated
that “ [i]t is enough that the Secret Service be guided solely by the principle of
whether the applicant presents a potential source of . . . danger to the President
and/or his immediate family so serious as to justify his exclusion.” Id. (citation
omitted). Arguing that this more flexible approach was appropriate given the mis­
sion o f the Secret Service, the court declared that “ [t]his standard is sufficiently
circumspect so as to allow the Secret Service, exercising expert judgment which
frequently m ust be subjective in nature, considerable leeway in denying press
passes for security reasons.” Id. The court also indicated its belief that courts
should be “ appropriately deferential to the Secret Service’s determination of what
justifies the inference that an individual constitutes a potential risk to the physical
security of the President or his fam ily.” Id.
Courts have allowed the Secret Service even more latitude outside of the first
amendm ent context. In Scherer v. Brennan, 379 F.2d 609 (7th Cir.), cert, denied,
389 U.S. 1021 (1967), the court found within the scope of the Secret Service’s
duties to protect the President the barring o f a federally-licensed firearms dealer
5 See A Quaker Action Group v. Hickel, 421 F.2d 1111, 1117-18 (D.C. Cir. 1969). See also Sherrill v. Knight,
569 F.2d 124, 128 n.14 (citing A Quaker Action Group, 421 F.2d at 1117 ( “ [t]he congressional grants o f authority
to the Secret Service to protect the President . . . and to control access to temporary presidential residences . . .
cannot be said to authorize procedures or actions violative o f the Constitution . . . . [W]e cannot agree with the
G overnm ent's argum ent that m ere mention o f the President’s safety must be allowed to trum p any First Amendment
issue” )).
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Authority o f the Secretary o f the Treasury to Order the Closing o f Certain Streets Located Along
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from his own home and his constant surveillance even though he had voiced no
direct threat to the President. The appellant argued that this invasion of privacy
was illegal under the Supreme Court’s analysis in Camara v. San Francisco, 387
U.S. 523 (1967) (holding that the fourth amendment requires a warrant for inspec­
tion of private premises by health inspectors unless the occupant consents thereto).
In rejecting appellant’s argument, the court stated, “ Here, the need to protect the
President of the United States from possible physical harm would justify measures
that might not be considered appropriate in routine health inspections.” Scherer,
379 F.2d at 612.
2. Section 202
In addition to the broad authority to protect the President granted in §3056,
3 U.S.C. §202 grants the “ United States Secret Service Uniformed Division”
authority to perform duties prescribed by the Secretary to protect the “ White
House in the District of Columbia” and “ any building in which Presidential
offices are located.” This provision makes clear that the Secretary has authority
to direct not only such action as is necessary to protect the person of the President
but also the White House itself and the Old Executive Office Building, which
is also bounded by the designated streets.
The language and legislative history of §§3056 and 1752, the authority granted
in §202, the court decisions, and former opinions of this Office suggest that while
the Secretary’s authority to protect the President may not be unlimited, the Sec­
retary may take such actions as are consistent with the Constitution, not prohibited
by statute, and reasonable under the circumstances for the protection of the Presi­
dent in the performance of his duties. We perceive no constitutional impediment
to the closing of the designated streets. Consequently, given the conclusions of
the WTiite House Security Review with respect to the vulnerability of the White
House, the Secretary would appear to have the authority to expand the security
perimeter of the White House by closing the designated streets if the Secretary
concludes that such action is reasonably necessary to protect the President. We
now turn to consideration of whether any other statutes prohibit or limit such
action.
B. Other Relevant Statutes
Other congressional grants of authority that could arguably apply to the streets
at issue do not diminish the Secretary’s authority to close them to vehicular traffic.
We will discuss each such congressional grant of authority in turn.
1. District of Columbia Street Closing Authority
The District of Columbia government has exercised the power to close streets
and transfer title within the District of Columbia since 1932, when Congress,
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pursuant to its plenary powers over the District of Columbia,6 granted it such
authority. See Techworld Dev. Corp. v. D.C. Preservation League, 648 F. Supp.
106, 111 (D.D.C. 1986) (citing S. Rep. No. 72-688, at 3 (1932)). When Congress
passed the District of Columbia Self-Government and Governmental Reorganiza­
tion Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (codified at D.C. Code Ann.
§§1-211 to -299) (“ Home Rule Act” ), it delegated to the present District of
Columbia government all powers that had been granted to the previous govern­
ment, see D.C. Code Ann. § l-227(a), including the power to close streets.
D.C. Code Ann. §§7-421 to -428 authorize the District of Columbia City
Council (“ D.C. Council” ) to close streets within the District of Columbia. The
street closing process established by the D.C. Council requires referral of street
closing applications to the National Capital Planning Commission for review and
recommendation, to the Advisory Neighborhood Commissions affected, and to
abutting property owners. See D.C. Code Ann. at § 7-422.
We do not believe D.C. Code Ann. §§7-421 to -428 or the Home Rule Act
prevent the Secretary from closing the streets at issue. First, in passing the Home
Rule Act, Congress provided that the D.C. Council shall have no authority to
“ [e]nact any act, or enact any act to amend or repeal any Act of Congress, which
concerns the functions or property of the United States or which is not restricted
in its application exclusively in or to the District.” Id. at § l-233(a)(3). Rejecting
the United States’ assertion that the D.C. Council’s act of closing a government-
owned street in Northwest Washington violated this provision, the court in
Techworld stated:
[T]he limitation of § 1-233 is included to ensure that the local
government does not encroach on matters of national concern. It
withholds authority over property used by the United States in
connection with federal governmental functions, and over property
of national significance. The Council may not concern itself with
the Lincoln Memorial, or the White House, or with the United
States Courthouse. The closing of a small street in Northwest Wash­
ington, however, is precisely the sort of local matter Congress
wishes the D.C. Council to manage.
Techworld, 648 F. Supp. at 115. See also District o f Columbia v. Greater Wash­
ington Cent. Labor Council, AFL-CIO, 442 A.2d 110, 116 (D.C. 1982), cert,
denied, 460 U.S. 1016 (1983) (quoting legislative history of the Home Rule Act:
“ The functions reserved to the federal level would be those related to federal
operations in the District and to property held and used by the Federal Government
for conduct of its administrative, judicial, and legislative operations; and for the
monuments pertaining to the nation’s past” ). See also id. at 116 n.l (quoting
6 See U.S. Const, art. I, § 8 , cl. 17.
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Hearings on Self-Determination for the District o f Columbia, pt. 2, 93d Cong.
52 (1973) (statement of John Nevius, former Chairman of the Council) (“ For
the purposes of identifying these Federal functions, we are speaking basically of
three things: First, the function regarding Federal buildings and properties; second,
the conduct of Federal business . . . and third, the function of international rela­
tions and matters concerning the diplomatic corps” )).
Here, unlike the situation in Techworld, Congress has delegated by statute to
the Secret Service the indisputably federal function of protecting the President.
In this context, we believe that D.C. Code Ann. § l-233(a)(3) establishes that
the D.C. Council may not assert its authority where doing so would interfere with
the Secret Service’s ability to carry out its congressionally-mandated function of
protecting the President.
Second, the streets slated for closing are located within the National Capital
Service Area, a geographic area comprising many of our national governmental
buildings and monuments, the White House, the National Mall and other areas,
over which Congress in the Home Rule Act reserved some federal administrative
authority. Section 739 of the Home Rule Act (codified at 40 U.S.C. § 136), estab­
lished the National Capital Service Area. It also established the position of a presi-
dentially-appointed National Capital Service Director within the Executive Office
of the President and charged that office with assuring “ that there is provided
. . . adequate police protection and maintenance of streets and highways” within
the National Capital Service Area. 40 U.S.C. § 136(b).
The National Capital Service Area provision was added to the Home Rule Act
as a floor amendment. Suggesting that the National Capital Service Area was an
area of heightened federal interest within the District of Columbia, the chief
sponsor of the amendment, Representative Green, stated that the National Capital
Service Director “ would have jurisdiction [within the area] over the police depart­
ment, fire protection, over sanitation, the streets, the roads and the accesses to
them.” 119 Cong. Rec. 33,611 (1973) (statement of Representative Green). See
also id. at 33,645 (“ the President would appoint a Director of Federal Area Serv­
ices who would be responsible for police protection, fire protection, sanitation,
the streets, and access roads” ). While the language and legislative history of the
provision do not suggest that the District of Columbia has no jurisdiction over
the National Capital Service Area, they do suggest that Congress considered the
federal government’s interest in areas within the National Capital Service Area
to be greater and more important than its interest in areas outside the National
Capital Service Area. We believe this reservation of federal governmental interest
further supports the Secret Service’s authority to take unilateral action in closing
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streets within the National Capital Service Area in an effort to protect the Presi­
dent.7
2. Administrative Procedure Act
You have also raised the issue of whether the Secretary’s action would con­
stitute a “ rule” as defined by the Administrative Procedure Act (“ APA” ), 5
U.S.C. §551(4), see generally id. §§551-559, thereby triggering the requirement
to provide “ interested persons” with notice and opportunity to comment as a
part of the rulemaking process. We believe that the Secretary could successfully
argue that the notice and comment requirements of the APA do not apply because
his action in closing the streets at issue to provide protection for the President
is not a “ rule” within the meaning of §551(4). Moreover, if the federal govern­
ment owns the streets in question, any action to close them would be exempt
from the APA pursuant to the “ public property” exception in § 553(a)(2).
The APA defines “ rulemaking” as “ agency process for formulating, amending,
or repealing a rule.” Id. §551(5). In defining a “ rule” , the APA identifies several
components: a rule may be “ o f general or particular applicability” ; it must be
of “ future effect” ; and must be “ designed to implement, interpret, or prescribe
law or policy” or must “ describe[] the organization, procedure, or practice
requirements of an agency.” Id. § 551(4).
We do not believe that closing the affected streets in order to protect the Presi­
dent is the sort of action that Congress intended to be subject to the APA’s notice
and comment process. A decision to close the streets would not be designed to
“ implement, interpret, or prescribe law or policy” so as to provide guidelines
or procedures for parties to follow in the future. To the contrary, the Secretary’s
action in closing the streets would be an isolated agency action that does not
affect or govern subsequent agency acts or decisions. Daingerfield Island Protec­
tive Soc’y v. Babbitt, 823 F. Supp. 950, 957 (D.D.C. 1993) (National Park Service
approval of design for interchange connecting George Washington Memorial Park­
way and island in Potomac River was not a “ rule” under 5 U.S.C. §551(4)).
The Secretary would be acting in a particular situation based on a unique set
of facts, pursuant to a statute authorizing his agency personnel, the Secret Service,
to protect the President. We do not believe that this unilateral action executing
such a decision is the sort of government action that Congress contemplated in
defining a “ rule” for purposes of the APA.8
7 W e are aw are o f only one District o f Columbia court decision discussing the National Capital Service Area.
The lim ited analysis presented in that opinion supports o ur view that the federal government exercises greater
adm inistrative authority over areas within the National Capital Service A rea than it exercises with respect to other
areas w ithin the District o f Columbia. In rejecting a claim that Congress had not delegated to the District o f Columbia
the authority to tax personal property w ithin the National Capital Service Area, the court in Itel Corp. v. District
o f Columbia, 448 A.2d 261, 267 n.10 (D .C.), cert, denied, 459 U.S. 1087 (1982), stated, “ this part o f the Home
Rule A ct serves to add some federal bureaucracy to the existing D.C. bureaucracy in order to ensure adequate services,
not to authorize the provision o f services by the D istrict."
8 Even if a court were to find that the Secretary’s action constituted a “ rule” under §551(4), the Secretary could
invoke the “ good cause” exception provided under 5 U.S.C. § 553(b)(3)(B). Under that section, the requirements
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Moreover, even if the Secretary’s contemplated action did constitute a “ rule”
under the APA, the APA provides an exception to its requirements for “ [any]
matter relating to agency management or personnel or to public property, loans,
grants, benefits, or contracts.” 5 U.S.C. § 553(a)(2) (emphasis added). The “ public
property” exception has been interpreted to exempt from APA coverage rules
issued by any agency with respect to real or personal property owned by the
United States or by any agency of the United States, including rules relating to
the sale or management of such property. Story v. Marsh, 732 F.2d 1375, 1384
(8th Cir. 1984); Wilderness Pub. Rights Fund v. Kleppe, 608 F.2d 1250, 1253
(9th Cir. 1979), cert, denied, 446 U.S. 982 (1980); City of Santa Clara v. Andrus,
572 F.2d 660, 673-74 (9th Cir.),' cert, denied, 439 U.S. 859 (1978). See also
United States Dept, of Justice, Attorney General’s Manual on the Administrative
Procedure Act 27 (1947). Accordingly, if the streets sought to be closed to vehic­
ular traffic are owned by the federal government, we believe that any action taken
to close those streets would be exempt from the APA under § 553(a)(2).
3. National Historic Preservation Act
We do not believe that the National Historic Preservation Act (“ NHPA” ), 16
U.S.C. §§470 to 470w-6, and the regulations promulgated pursuant to it, 36
C.F.R. §§800.1-15 (1995), prohibit the Secretary from taking prompt action with
respect to closing to vehicular traffic the contemplated streets. Section 106 of
the NHPA provides that “ prior to the approval of the expenditure of any Federal
funds” on an “ undertaking,” the head of a federal agency must “ take into
account the effect of the undertaking on any district, site, building, structure, or
object that is included in or eligible for inclusion in the National Register.” 16
U.S.C. §470f. It further provides that the agency head shall afford the Advisory
Council on Historic Preservation (“ Advisory Council” ) a “ reasonable oppor­
tunity” to comment on the effect that such undertaking will have on a historic
site. Id. Although consultation with the Advisory Council must be had “ prior
to approval of [the] undertaking,” 36 C.F.R. § 800.1(a), the agency head is not
bound by the Advisory Council’s comments or recommendations. See id. 36
C.F.R. §800.6.
The vast majority of the areas that the Secretary contemplates closing, including
Pennsylvania Avenue between 17th Street and Madison Avenue, and State Place,
appear to be part of the “ Lafayette Square Historic District,” which is included
in the National Register of Historic Places and is therefore one of the sites covered
by section 106. National Register of Historic Places Inventory: Nomination Form
for Lafayette Square Historic District.
o f notice and opportunity for comment do not apply when the agency for good cause finds that the procedures
are “ impracticable, unnecessary, or contrary to the public interest." Id. We believe that in the instant case the
Secretary's basis for invoking the good cause exception would be upheld, as there is a clear public interest in pro*
viding the President thorough and prompt protection when necessary to meet security requirements.
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Whether the NHPA’s consultation process for certain historic sites (section 106
process), 36 C.F.R. §§800.3-.5, is triggered depends on whether the agency’s
action is an “ undertaking” under the NHPA. By regulation, the Advisory Council
has defined the term “ undertaking” as “ any project, activity, or program that
can result in changes in the character or use of historic properties, if any such
historic properties are located in the area of potential effects.” Id. §800.2(o)
(emphasis added).9 Courts have tended to construe the definition broadly. Historic
Green Springs, Inc. v. Bergland, 497 F. Supp. 839, 853 (E.D. Va. 1980); National
Indian Youth Council v. Andrus, 501 F. Supp. 649, 676 (D.N.M. 1980), a ff d.
sub nom. National Indian Youth Council v. Watt, 664 F.2d 220 (10th Cir. 1981).
And we cannot deny that the Secretary’s contemplated action appears to fit within
the definition in § 800.2(o) in that the street closing would make a direct change
in the use of the historic area because it will prohibit a significant use currently
allowed, that is, vehicular traffic.
Even if the contemplated street closing were considered an “ undertaking”
pursuant to 16 U.S.C. §470f, however, it is our conclusion that the consultation
requirements of the Advisory Council’s regulatory scheme do not prohibit the Sec­
retary from taking the necessary and immediate action to protect the President
of closing to vehicular traffic the aforementioned streets. The statutory and regu­
latory framework of the NHPA cannot reasonably be read to require strict compli­
ance with the consultation requirements in the case of an emergency. For example,
if a water main breaks in an urban historic area, maintenance crews must be able
to promptly remedy the situation even if that entails physical destruction of roads
and sidewalks in the historic area and closure to all traffic for an extended period
of time; surely Congress would not expect consultation before the maintenance
work commenced. Similarly, if a crime is committed in an historic area or in
an historic building, law enforcement officials would be able to secure the area
if necessary to apprehend the perpetrators, preserve evidence, and take necessary
and reasonable steps to ensure the safety of members of the public, even if such
measures change the use of the historic site by re-routing traffic, setting up road­
blocks, or denying access to buildings and areas. Again, those law enforcement
actions could be handled promptly without compliance with the NHPA consulta­
tion requirements.
We do not construe the section 106 process to preclude the Secretary, after
having “ tak[en] into account the effect of the undertaking,” from authorizing the
undertaking to go forward initially on a provisional basis, with no irreversible
effects, and thereafter giving the Advisory Council a reasonable opportunity to
comment on it before deciding to put the undertaking on a final and permanent
footing. In other words, as we construe the statute and regulation, the “ under­
9 In addition, “ [t]he project, activity, o r program must be under the direct or indirect jurisdiction of a Federal
agency or licensed o r assisted by a Federal agency. U ndenakings include new and continuing projects, activities,
or programs and any o f their elements not previously considered under section 106.” 36 C.F.R. §800.2(o).
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Authority o f the Secretary o f the Treasury to Order the Closing o f Certain Streets Located Along
the Perimeter o f the White House
taking” that requires prior consultation with the Advisory Council must be one
that would effect a permanent change in the character and use of the site.
Common sense dictates that the NHPA could not require the Secretary to
comply with the consultation and review procedures of the section 106 process
in a manner which would compromise the Service’s ability and mission to ensure
the safety of the President and others in the White House complex. A contrary
result would render the Service’s broad authority under 18 U.S.C. §3056 ineffec­
tive; it cannot be that Congress intended that the NHPA could mandate adherence
to its procedural requirements when such adherence would directly interfere with
the Secret Service’s statutory duty to protect the President of the United States.
We believe that if the Secretary, as the exigencies permit, provides the Advisory
Council with notice of the Service’s protective actions and requests the Advisory
Council’s comments on the actions, the Secretary will be deemed to have complied
with the NHPA’s requirement that the agency head afford the Advisory Council
a “ reasonable opportunity” to comment. Of course, whether any given oppor­
tunity is reasonable depends on the particular circumstances at issue.
4. National Environmental Policy Act
You have also expressed concern about the possible impact of the National
Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970), as
amended (codified at 42 U.S.C. §§4321-4370) (“ NEPA” ), and its related regula­
tions concerning federal agency action, on the Secretary’s ability to immediately
close the identified streets. Without expressing a view as to whether or to what
extent NEPA might apply to the street closings, we note that NEPA’s emergency
exception is broad enough to permit the Secretary to proceed after brief consulta­
tion with the Council on Environmental Quality. Section 1506.11 of title 40, Code
of Federal Regulations, provides:
Where emergency circumstances make it necessary to take an
action with significant environmental impact without observing the
[NEPA regulations,] . . . the Federal agency taking the action
should consult with the [Council on Environmental Quality] about
alternative arrangements. Agencies and the Council will limit such
arrangements to actions necessary to control the immediate impacts
of the emergency. Other actions remain subject to NEPA review.
We believe that the necessity revealed by the White House Security Review of
enhancing the security perimeter around the White House is an “ emergency”
within the meaning of this regulation. Accordingly, we believe that the Secretary
may close the designated streets without running afoul of NEPA. If possible, the
Secretary should consult with the Council on Environmental Quality concerning
alternative arrangements prior to closing the streets at issue.
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III. Conclusion
For the foregoing reasons, we conclude that the Secretary has authority under
§3056 to close the streets mentioned above to vehicular traffic. In addition, we
conclude that the other congressional grants of authority discussed above do not
diminish that authority.
RICHARD SHIFFRIN
TERESA WYNN ROSEBOROUGH
Deputy Assistant Attorneys General
Office o f Legal Counsel
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