Bowsher v. Synar

PETITIONER:Bowsher
RESPONDENT:Synar
LOCATION:Congress

DOCKET NO.: 85-1377
DECIDED BY: Burger Court (1981-1986)
LOWER COURT:

CITATION: 478 US 714 (1986)
ARGUED: Apr 23, 1986
DECIDED: Jul 07, 1986

ADVOCATES:
Alan B. Morrison – Argued the cause for appellees Synar et al
Charles Fried – Argued the cause for the United States
Lloyd N. Cutler – Argued the cause for the appellant in No. 85-1377
Lois G. Williams – Argued the cause for appellees National Treasury Employees Union et al
Michael Davidson – Argued the cause for the appellant in No. 85-1378
Steven R. Ross – Argued the cause for the appellants in No. 85-1379

Facts of the case

Due to rising government budget deficits during the first term of the Reagan Administration, Congress passed the Gramm-Rudman-Hollings Deficit Control Act of 1985. The act was designed to eliminate the federal budget deficit by restricting spending during fiscal years 1986 through 1991. Under the law, if maximum allowable deficit amounts were exceeded, automatic cuts, as requested by the Comptroller General, would go into effect. This case was decided together with O’Neill v. Synar and United States Senate v. Synar.

Question

Did the functions assigned by Congress to the Comptroller General of the United States under the Gramm-Rudman-Hollings Deficit Control Act of 1985 violate the doctrine of separation of powers?

Warren E. Burger:

The Court will hear arguments first this morning in Bowsher v. Synar and others.

Mr. Cutler, you may proceed whenever you are ready.

Lloyd N. Cutler:

Mr. Chief Justice, and may it please the Court:

This case involves the constitutional interplay between two statutes, one passed in 1921 and the other in 1985.

In a larger sense, it involves the validity of the concept of the independent officer of the United States first approved by this Court in Humphrey’s Executor, and Congress before and since that time has enacted many laws creating officers of the United States duly appointed by the President and confirmed by the Senate who serve for a fixed term, independent of presidential direction, and are not removable by the President at will.

The 1921 Budget and Accounting Act created the Office of the Comptroller General and assigned to him the same functions previously performed by the Comptroller of the Treasury, an officer of the executive branch.

He was to serve for a fixed term, and he was to be removable only for cause after hearing by the passage of a law to that effect.

The 1985 Balanced Budget and Emergency Deficit Control Act assigned an additional reporting function to the Comptroller General.

The Comptroller General’s report, under the ’85 act, determines whether Congress has met the specified deficit reduction targets, and if not, what reductions under a statutory formula are required in order to meet that target.

The report then triggers a presidential order which commands those reductions unless Congress responds by enacting some different law that meets the target by a different mix of tax increases or deficit reductions, or modifies or suspends the law in its entirety.

The District Court held that this ’85 act function assigned to the Comptroller General was incompatible with the removal power granted to Congress under the 1921 act by the enactment of a removal law because, said the District Court, that removal power, even though never exercised, created a here and now subservience of the Comptroller General to Congress that made it impermissible for him to perform this reporting function under the 1985 act.

If the Court permits, since we have three counsel arguing for the appellants, we have tried to organize our argument so that I will deal with the status of the Comptroller General under the 1921 act and the removal clause–

Warren E. Burger:

Mr. Cutler, if the Comptroller General were removed for any one of the four reasons… I think there are four reasons specified in the statute… is there any review by anyone of that action?

Lloyd N. Cutler:

–Oh, it is a law.

I suppose its constitutionality would be reviewable by the removed person or perhaps on challenge by the President if he had been excluded from his constitutional removal power.

Warren E. Burger:

Would it be any different from a removal by way of an impeachment?

Lloyd N. Cutler:

I would suppose, Mr. Chief Justice, that a removal by way of impeachment would… I don’t know whether it would be judicially reviewable by this Court, for example, as to whether it complied with the statutory standards.

It would be a difficult point, particularly of the President, since the Chief Justice would have presided in the impeachment, but I believe certainly a removal pursuant to this statute by the passage of a law would be subject to a constitutional due process or other challenge by the removed person or by the President on the ground that he has been excluded.

In any event, the power, as you know, has never been exercised in the 65 years since the statute was passed.

Mr. Ross is going to deal with the additional function assigned to the Comptroller General under the ’85 act, and Mr. Davidson is going to deal with the additional argument rejected below that the delegation of this ’85 act function to any officer of the United States, even in the executive branch, would be void for overbreadth under the delegation doctrine.

In reaching its decision, the District Court did not consider the legislative history of the 1921 act or the validity of this 1921 removal provision within the context of the ’21 act, and we submit that that was a fundamental error.

The District Court declined to do that because, it said, courts never choose which of two allegedly incompatible statutes to strike down, that they always act to strike down the statute under which the plaintiff claims that his injury occurred, and in that case, of course, this would be the 1985 statute.

But as we have cited in our briefs, in Glidden v. Zdanok, this Court did precisely the opposite.

The Court there was dealing with an assignment statute authorizing the assignment of the Court of Claims and Customs and Patent Appeals judges to regular, other regular Article 3 courts.

That was the statute that allegedly injured the plaintiffs in those cases, and the Court, instead of striking down that statute, which was arguably incompatible with earlier statutes giving advisory jurisdiction, advisory opinion jurisdiction to those two courts which would interfere with their Article 3 status, decided that Congress had intended to make them Article 3 courts from the beginning, and that if necessary, the objectionable jurisdiction provisions in the earlier statutes would have to fall.

And when the District Court thought it was confronted with a similar problem here, we submit it should have adopted the same reasoning.

Harry A. Blackmun:

You feel that the Glidden case is primary authority for your position here.

Lloyd N. Cutler:

We do, Justice Blackmun.

Sandra Day O’Connor:

Well, Mr. Cutler, aren’t we guided in determining severability if some portion of the statute is found to be unconstitutional by the expressed intent of Congress, which in this case would indicate that Congress had some fallback position which it articulated should be followed?

Lloyd N. Cutler:

There is no question that in the 1985 statute Congress had a fallback provision if any part of the so-called reporting function, using the Comptroller General and acting on the reports of OMB and CBO, were found unconstitutional, but one would never reach that issue if, by examining the 1921 act, one had concluded that the removal provision in the 1921 act was itself unconstitutional and a nullity, particularly since the time of Myers v. the United States–

Sandra Day O’Connor:

Well, but aren’t we reviewing the 1985 act?

Lloyd N. Cutler:

–You are reviewing the 1985 act on the ground that a presumptively constitutional provision in the 1921 act is incompatible with the delegation of functions under the ’85 act.

If that presumptively constitutional provision which has been used as a sword to strike down the 1985 act is found to be unconstitutional on its face, or found on the other hand not to create a here and now subservience to Congress with respect to the many administrative or executive functions being performed by the Comptroller General under the 1921 act, then you would have to conclude that the ’21 provision is a nullity and that it should not interfere in any way with the validity of the delegation functions under the ’85 act.

William H. Rehnquist:

Well, what if we did follow your suggestion and decide that the removal provision of the 1921 act were invalid under the Constitution, how would that leave the position of the Office of Comptroller General as to removability?

Lloyd N. Cutler:

It would leave it, I would submit, Justice Rehnquist, it would leave the 1921 statute silent on removability.

William H. Rehnquist:

And what would be the result?

Lloyd N. Cutler:

And then under this Court’s decision in Wiener, if you concluded that the ’21 statute had created the Comptroller General as an independent officer of the United States serving for a fixed term of years, you would imply that the President had no right to remove him at will but might have a right to remove him for cause, something this Court has implied in the absence of statutory language but not held.

William H. Rehnquist:

If you concluded that the Comptroller General were more like Myers than Wiener, then you would say that the President could remove him at will.

Lloyd N. Cutler:

If you concluded that he were a purely executive officer, that would be the case, yes.

William H. Rehnquist:

It seems to me that you really risk interfering with Congress’ intent far more when you tamper with the 1921 act than if you adjudicate the 1985 act.

Lloyd N. Cutler:

I would submit not, Justice Rehnquist because Congress clearly intended in the 1985… the 1921 act to establish the Comptroller General as an independent officer of the United States because he was to receive these administrative functions, like settling the government’s account, bringing suits to collect the government’s claims, and setting the accounting standards for the government.

The whole argument about the 1921 act, President Wilson’s veto, the arguments that were made to the Court in Myers about the ’21 act were all premised on the assumption that the Comptroller was an independent officer of the United States.

During the debate on an attempt to override President Wilson’s veto, which asserted the ground, among others, that he had the sole power to remove an officer of the United States when he was given the power to appoint, and that Congress could not take part in the process, the whole argument which was adopted by the Court in Myers is based on the premise that he is an independent officer of the United States and not an officer of Congress as the Solicitor General is urging before you today, in contrast to what the Solicitor General in the Myers case urged.

He said the Comptroller General was an executive officer.

But when the veto provision was up to be overridden, the question… and the override failed… the question was asked on the floor of the House, what if we override, and then President Wilson’s veto, or his position is upheld by the courts, would the entire act fall, and the answer was that that was a remote possibility and that if any part of the act fell, to that extent, the act would be unconstitutional.

So we would read that as indicating that Congress would have preferred to have an independent Comptroller General serving for 15 years even if the President had a right of removal, and as we know later from Wiener, his right of removal in those circumstances would be limited to removal only for cause.

Byron R. White:

Well, Mr. Cutler, the United States argues that the removal power by Congress is beside the point, that this officer may not perform these functions assigned to him unless the President has unrestricted power to remove.

Lloyd N. Cutler:

That is correct.

Byron R. White:

Now, did the District Court reject that argument?

Lloyd N. Cutler:

The District Court never reached that argument.

The District Court assumed that he was an officer of the United States and that the functions were executive functions–

Byron R. White:

Well, do you think that issue is open here?

Would that change–

Lloyd N. Cutler:

–I would think–

Byron R. White:

–Would it change the reach of the judgment?

Lloyd N. Cutler:

–I think it would, Justice White.

I think the Solicitor General is arguing that should you conclude that a power to remove for cause does not create here and now subservience to the removing authority, which is in effect what was held in Humphrey, but the President had the power to remove for cause, and you still held that the Federal Trade Commission was independent of the President, then the Solicitor General, I take it, would fall back on the argument that these particular functions are within the heart, the core of the executive power.

Byron R. White:

Purely executive, and so that they may not be performed by this officer unless the President has–

Lloyd N. Cutler:

Yes.

Byron R. White:

–power to remove at will.

Lloyd N. Cutler:

On that argument, they could be performed only by a purely executive officer.

Byron R. White:

And that… is that a broader… if we affirmed on that ground, would that be a broader relief?

Lloyd N. Cutler:

On that ground, yes, we think you would then take over the side with you the Federal Reserve Board which itself makes broad, predictive findings of fact and sets policy, the Federal Communications Commission which you have held determines the course of future public policy when it is issuing licenses and deregulating common carriers, and many other commissions.

William H. Rehnquist:

But that’s not broader relief on this particular judgment.

That’s just a more sweeping doctrine.

Lloyd N. Cutler:

It’s a more sweeping doctrine, but should you adopt that doctrine, it would have very serious implications for all of those agencies.

Byron R. White:

Well, it would foreclose, it would foreclose or make beside the point agreeing with you about the validity or invalidity of the 1921 act.

Lloyd N. Cutler:

I would… yes, Justice White, if the Solicitor General is correct in that contention, then all the independent agencies except those which are limited to deciding particularized cases based on past facts, what he calls a quasi-judicial function, would be over the side, particularly if you adopt his theory that it is not the removal power in those statutes which would have to be invalidated but the function that is to be performed.

Lewis F. Powell, Jr.:

Mr. Cutler, are there other officers of the United States removable by the Congress?

Lloyd N. Cutler:

This is the only officer of the United States who by statute, Justice Powell, is removable by the Congress.

Lewis F. Powell, Jr.:

Yes, by statute, for cause.

Lloyd N. Cutler:

That is so, for cause, that is right, other than impeachment.

Lewis F. Powell, Jr.:

Mr. Cutler, what about the Federal Reserve Board members?

Lloyd N. Cutler:

The Federal Reserve Board members are removable for cause, under their statute, a term that is not defined.

We have assembled in an appendix to our reply brief the removal provisions and the statutory characterization of the functions of every important independent agency.

John Paul Stevens:

Mr. Cutler, do you take the position that the removal power in the ’21 act is unconstitutional?

Lloyd N. Cutler:

We argue that it is not unconstitutional, Justice Stevens, because they never exercise power to remove for cause, which is so difficult to apply and has never happened.

Even the President has never removed an independent officer for cause in a hundred years.

We argue it doesn’t create a here and now subservience on the authority–

John Paul Stevens:

Well, no, I understand that, but it’s a different argument.

Lloyd N. Cutler:

–Right.

John Paul Stevens:

But I’m just asking independently, would you say the ’21 act is constitutional or unconstitutional?

Lloyd N. Cutler:

If you asked me, I would have great difficulty defending the portion of the ’21 act which gives Congress a role in the actual removal process because that seems to fly in the face of the ruling of Myers which was not affected by Humphrey’s Executor that Congress cannot participate in the actual process of removal although it may lay down the standards for removal.

If that happened, I would say, as I did in response to the other question, that removal provision is a nullity and has been since the beginning.

It is perhaps an open question for this Court whether Humphrey’s limitation of Myers to independent officers reaches the portion of Myers that relates to participation of the Congress in the removal process, but should you conclude Congress cannot participate in the removal process, that provision is a nullity.

It is as if it never existed.

And as to severance, Justice O’Connor, if I may return to that for just a moment, in the Myers case itself, the Court was considering a statute that authorized the President to appoint and remove postmasters of various classes by and with the advice and consent of the Senate.

It also provided for the salaries of postmasters and assigned them various functions.

The Court in Myers struck down the removal provision.

It didn’t stop the President from appointing postmasters, it didn’t stop postmasters from delivering mail, and there was no so-called severance clause in that statute.

Byron R. White:

I take it you are then somewhat at odds with your colleagues with respect to the validity of the 1921 provision?

Lloyd N. Cutler:

We would defend its validity perhaps with less enthusiasm than our colleagues, but I think we all come to the same place.

We all think that the removal provision can be upheld because it does not create a here and now subservience.

But we also think if it does create such a subservience or if Congress per se cannot participate in the removal process, this removal provision has been a nullity since 1921, and it should not affect your consideration of the 1985 act.

Warren E. Burger:

Are you suggesting that the ’21 provision may be just partly or slightly unconstitutional?

Lloyd N. Cutler:

I am suggesting, Chief Justice Burger, that the removal provision either creates no subservience, in which case it can have no effect on the ’85 act except on the Solicitor General’s extreme theory, or that it is unconstitutional and has been a nullity since 1921.

Warren E. Burger:

Mr. Ross?

Steven R. Ross:

Mr. Chief Justice, and may it please the Court:

I appear here this morning on behalf of the Speaker and Bipartisan Leadership Group of the United States House of Representatives.

My argument will proceed in the following fashion: First I will try to describe the functions given to the Comptroller General under the 1985 act.

Secondly, I will describe the history and the necessity for his choice to perform those functions.

And then finally, I will turn to the question of the constitutional appropriateness of that choice.

The 1985 act, Emergency Deficit Control Act, proceeds from a simple proposition.

That proposition is to set statutory targets which in a declining basis… which, when met will result in a balanced budget by 1991.

To meet these deficit target figures a simple process is established.

That process calls for certain calculations.

Those calculations start with economic projections and then, using those economic projections, a forecast of the projected deficit, and then using that projected deficit, comparing it to the statutory target figure, a determination of the shortfall, and then applying the statutory formula, arriving at how to meet that shortfall from taking money from each account.

In making these calculations, the Comptroller General is performing functions similar to the functions that he has always performed.

He makes accounting determinations with respect to the federal budget.

It is, in essence, a pre-audit, telling federal paymasters and disbursing officers how much money they will have to spend.

The District Court accurately described these calculations as the application of law to present and future facts.

Equally accurate, but more colorful, was Judge Scalia’s description in oral argument that what this job was was something for a man with a green eyeshade, that it was an accountant’s job, not power.

The District Court correctly concluded that the Comptroller General is not responsible for a single policy judgment under the act.

Next let me turn to the necessity for having the Comptroller as the impartial budget scorekeeper, and why he was chosen.

When the proposal first originated in the Senate, these calculations which were always part of the proposal were to be performed jointly by the President’s office, OMB, and by the Congressional Budget Office.

When that proposal reached the House, it was not surprising that the House chose not to entrust these functions to OMB whose director, of course, shares office space with the President.

Instead, the House chose to give these functions to the nonpartisan CBO, or Congressional Budget Office.

Since the director of the Congressional Budget Office is appointed not by the President but by the Congress, there were those who raised problems with this proposal.

The proposal was then made on the floor of the House by leaders of both parties, Representative Gephardt, a member of the Democratic leadership, and Representative Cheney, a member of the Republican leadership, that in order to ensure that these calculations are walled off from any possible manipulation, that they be given to the independent, long-tenured Comptroller General.

As the proposal bounced back and forth between the Senate and the eventual conference, this proposal was eventually enacted, and these functions were given to the Comptroller General.

Steven R. Ross:

Although the bill had many detractors and many concerns were raised about it, at no time did these detractors raise any concerns over the role of the Comptroller General, nor did the President raise any constitutional concerns over the role of the Comptroller General.

The choice of the Comptroller was consistent with two recent judicial decisions in which district courts had determined in the face of the challenge by the executive that the Comptroller could be given important administrative tasks because he was an independent officer.

The selection was also a recognition of the historic role of the Comptroller, and–

Sandra Day O’Connor:

Mr. Ross, wouldn’t you concede that the historic role of the Comptroller General is really that of an employee of the legislative branch, in effect?

Hasn’t he been considered an arm of the legislative Branch rather than the executive branch, historically?

Steven R. Ross:

–He has been called by those in Congress and those in the judiciary many things over the years.

He was… and it is not the nature… it’s the nature of the function rather than the label that is given to him that should apply.

His function was historically first performed in the United States by a Comptroller within the Treasury Department.

When James Madison urged the first Congress to create such an office, he specifically alluded to the importance that such an office had a unique, independent status, and in fact, urged that the tenure be given would be one which would make him accountable to the public generally, and so that while over the years the Comptroller has, for example, been funded in certain years out of the legislative branch appropriations and in other years out of executive branch appropriations, I don’t believe that is the key.

The function of the Comptroller, which is checking the expenditures from the public purse, has always been considered one that is necessary to be performed by an independent officer.

William H. Rehnquist:

The Comptroller gives opinions, though, on constitutionality of things, doesn’t he?

Steven R. Ross:

To the Congress?

William H. Rehnquist:

Yes.

Steven R. Ross:

The Comptroller, as many people, provides Congress with information.

It is well within the purview of Congress’ power to require opinions as to constitutionality or as to investigations from many officers throughout the government.

Clearly, if the Congress wanted to, it could require that Commissioners of the FTC come up and give opinions.

William H. Rehnquist:

Yes, but based on my three years’ experience in the Justice Department, my feeling was, you know, that if the executive branch wanted a favorable opinion, you went to the Attorney General; if Congress wanted a favorable opinion, you went to the Comptroller General.

Do you think that is unreasonable?

Steven R. Ross:

I was going to answer that the Congress calls the Comptroller so often because they respect his competency.

John Paul Stevens:

May I ask, in that connection, if his task is to review the expenditure of public funds, I take it he will perform that task upon request by either a congressional committee or an individual Congressman or Senator, is that correct?

Steven R. Ross:

He will perform various investigative functions upon request of congressional committees or individual members.

John Paul Stevens:

Will he do the same thing upon the request of the President?

Steven R. Ross:

Yes, he does.

He performs various functions for the executive branch.

John Paul Stevens:

The same type of investigative checking on disbursements?

Steven R. Ross:

He would not issue the same type of report, but he does do work for the… for executive agencies.

John Paul Stevens:

What percentage of his work assignments do you suppose eminate from the legislature and what from the executive?

Steven R. Ross:

I think the figures that I last saw indicate that he does a great deal of his work for the legislative branch, over 50 percent, but I don’t think it is–

John Paul Stevens:

Is it over 90 percent, would you say?

Steven R. Ross:

–I don’t believe so.

Sandra Day O’Connor:

What work does he do for the executive branch specifically?

Steven R. Ross:

He performs certain audit functions at the request of executive agencies who want to rely on his expertise.

My third point is the constitutional appropriateness of the selection of a Comptroller General.

As our brief and as counsel for the Comptroller have pointed out, a long line of cases in this Court uphold the nature of independent agencies performing administrative tasks.

We learn from Humphrey’s Executor, Wiener and Buckley that these tasks can be given to an independent officer so long as that officer is appointed by the President, as the Comptroller General is.

In challenging the independence of the Comptroller, the executive fails to cite specific constitutional provisions which the 1985 act or the 1921 act violate.

That is because there are none.

Sandra Day O’Connor:

Now, Mr. Ross, you take the position that none of the functions assigned to the Comptroller General in the 1985 act are executive functions in nature?

Steven R. Ross:

We take the position that none of the functions given to the Comptroller in the 1985 act are purely executive as that term has been used by this Court, in, example, in Myers or as that term was understood in the first Congress in respect to–

Sandra Day O’Connor:

You wouldn’t concede that there is any executive power component involved in the 1985 act powers given to the Comptroller General?

Steven R. Ross:

–Well, clearly, the economic projections are a function which are performed by all three branches on a daily basis.

It is the finding of future–

Sandra Day O’Connor:

But the bottom line, of course, is picking a figure or figures that will be binding on all agencies of the federal government for purposes of sequestration, for example.

Steven R. Ross:

–Well, of course, the figure is determined by the statutory formula.

The fact that the Comptroller’s findings will be binding is consistent with the way this Court described the role of the Comptroller General in Skinner & Eddy in 1927 when Justice Brandeis observed that the findings of the Comptroller General were binding on the executive branch It is not a new function for the Comptroller to do.

Instead of relying on specific textual provisions, the Solicitor’s attack on the statute calls into question an area which Justice Stevens has recently aptly described as one of those vast open spaces in the text of the Constitution which was left by the framers to be filled in by future generations of lawmakers.

In light of this constitutional silence, this Court should be especially wary of overturning an important statute arrived at by important compromise between the political branches.

That is particularly true since the President is not without weapons in fighting for these open spaces, namely, his participation in the legislative process and his well-advertised veto pen.

The Solicitor also raises a number of specific concerns with regard to the Solicitor General’s choice.

He says that these–

You mean the Comptroller General, sir?

Steven R. Ross:

–Excuse me.

Yes.

With regard to the Comptroller General’s performance of these functions.

He says that these functions are purely executive, but as I have indicated, these functions, predicting present and future facts and making economic calculations and mathematical determinations, are the type of functions which have traditionally been given to independent agencies.

The Solicitor tries to draw support–

John Paul Stevens:

Isn’t there some tension between that suggestion and your earlier suggestion that he’s just a guy with a green eyeshade?

Steven R. Ross:

–The predictive nature of his task?

John Paul Stevens:

Yes.

It seems to me you ought to… you have to choose between those two versions of what he is doing.

Steven R. Ross:

Well, I guess it would depend on whether… and the description was Judge Scalia’s… whether Judge Scalia viewed accountants as doing any predictive factfinding.

Determining what the economy will look like in three months, six months, nine months or a year is still essentially a finding of fact.

It is not a finding of fact which is reliable as finding present day facts, but it is still a finding of fact.

As I said, these–

Warren E. Burger:

How do you compare the Comptroller General’s function under the 1985 act with the President’s function in preparing the budget?

Steven R. Ross:

–The President seeks to articulate his choices for national policy by making political, practical and policy determinations as to how much of the federal purse should be spent in various areas and where that money should be derived from.

The Comptroller performs no function even vaguely similar to that.

What the Comptroller does is take that budget as it is proposed by the President and enacted by the Congress and then applies the statutory formula to reduce expenditures in the event that the Congress has not met the target.

Warren E. Burger:

Well, isn’t that something like correcting the papers of both?

Steven R. Ross:

No, it does not alter in a single area any policy judgment.

I think the District Court correctly concluded that the Comptroller is not given a single policy judgment, and that is the major difference.

The purely executive function of proposing the budget or proposing legislation involves policy choices.

The Comptroller’s function and the administrative task is simply the application of the statutory formula to come up with the bottom line numbers.

Byron R. White:

Well, that is your bottom… the bottom line in your argument, that he may perform these functions constitutionally?

Steven R. Ross:

Right, that he may perform these functions constitutionally and that the nature of his tenure, being appointed by the President in strict accordance with this Court’s decision in Buckley, and the fact that the removal mechanism is for removal by enactment of a statute using the proper statutory enactment process required by this Court’s decision in Chadha do not deprive him of the independent status.

It does not give the Comptroller either de facto or de jure subservience to the Congress or to the President.

In fact, he enjoys a degree of independence which is unique among officers of the United States, but is exactly what both the first Congress had in mind and is exactly what the legislators in 1921 had in mind in creating this–

Byron R. White:

So you defend the provision in the 1921 act.

Steven R. Ross:

–Yes, I do.

I think it is–

Byron R. White:

And you defend assigning these particular functions to him in the ’85 act.

Steven R. Ross:

–Right.

I believe that it is… Congress and the President can choose under the doctrines of the Constitution and this Court to give these types of functions to independent officers.

We also believe that the Comptroller General is an independent officer by virtue of both his appointment and the protected nature of his tenure.

Sandra Day O’Connor:

Would you say that these functions could be given to an executive branch officer, Mr. Ross, under a scheme like this with Congress removal power?

Steven R. Ross:

I’m not sure I follow the question.

Could the Congress–

Sandra Day O’Connor:

Could these… you say that the Comptroller General is an independent officer, so it’s all right to give him the power that has been given.

Could Congress give this power to a purely executive branch officer having Congress with the removal power that it has retained for itself with this officer?

Steven R. Ross:

–Okay, let me answer that in two ways.

Steven R. Ross:

I don’t believe that the Congress could enact a statutory removal mechanism that provides for removal by public law for a purely executive officer.

So that is the second part of your question.

As to the first part, Congress and the President in the legislative process could have chosen to give this function to the Secretary of the Treasury.

I think that would have been a political impossibility.

Sandra Day O’Connor:

But you think that somehow the Constitution provides for the creation of these independent officers.

Steven R. Ross:

It’s more that the Constitution doesn’t prevent it, and that where the Constitution does not specifically prevent the political branches from utilizing a particular mechanism, this Court owes deference to the choices of those political branches.

Sandra Day O’Connor:

And how do you fit that doctrine into what we think of as the separation of powers concept that the framers of the Constitution had in mind?

Steven R. Ross:

Well, personally I don’t believe that each and every function of the government or each and every officer of the government need be neatly pigeonholed into a label of either being executive, judicial or legislative; that I would agree with the description that James Madison gave in Federalist No. 37 that there are times that these functions do not permit such easy labeling.

And so I think that because the Constitution does not require that the… that there be an officer labeled as either executive, judicial or legislative, that as long as those requirements which are contained within the Constitution are met, that separation of powers is properly protected.

Here, the protection which the Court has clearly defined as recently as the Buckley case, is that the power of appointment which is specifically described in the text of the Constitution, could not be given to the legislative branch, and the legislative branch has not seen fit to try to take that power in this act.

Sandra Day O’Connor:

Well, I guess the legislative branch has in fact restricted the power of appointment of Comptroller General to a degree, has it not, by limiting the appointment to people suggested?

Steven R. Ross:

The legislative history of the appointment provision clearly suggests that the Congress intended and expected that the President would retain his right to name whoever he so chose, and the President in naming Mr. Bowsher as Comptroller General made his own choice.

John Paul Stevens:

But he had to choose from just three candidates, didn’t he?

Steven R. Ross:

The legislative history indicates–

John Paul Stevens:

But the statute provides just three candidates, doesn’t it?

Steven R. Ross:

–It provides that there be suggestions given to the President by the legislative branch.

John Paul Stevens:

And he must pick one of the three suggested.

Am I wrong on that?

Maybe I read it wrong.

Steven R. Ross:

That’s what the statute provides.

John Paul Stevens:

Oh, I see.

So I am not wrong.

But let me just ask you one question.

I know the red light is on, but you said that they could constitutionally have given this power to the Secretary of the Treasury, but it would have been, as I understand what you said, a political impossibility, which seems to me again inconsistent with the notion that this is just a factfinding function.

Why would it be a political impossibility?

Steven R. Ross:

There are differences between constitutional realities and political realities.

John Paul Stevens:

Right.

Steven R. Ross:

The fact that it is a factfinding function is enough to justify constitutionally that it be given to an independent officer.

The fact that it was a factfinding function would not have been enough politically to have the Congress give it to someone who shares office space with the President.

John Paul Stevens:

Because there’s some area of discretion in finding facts, I guess that’s what you are saying.

Steven R. Ross:

Whether it is discretion or not, it need not be discretion for there to be a lack of trust, and the political reality of this bill was that when it came to the House, it was necessary for the House to formulate an officer that all within the House could trust his nonpartisanship.

That officer was clearly the Comptroller General.

Thank you.

Warren E. Burger:

Mr. Davidson?

Michael Davidson:

Mr. Chief Justice, and may it please the Court:

Before turning to the delegation argument, if I may pick up on several points which have been discussed, in further response to Justice Powell’s question whether there is any other agency of the United States for which there is a provision for congressional removal, there is one.

There has been since 1933 in the Tennessee Valley Authority Act a provision that the Congress could, by concurrent resolution, not even involving the President of the United States, remove members of the TVA board, and yet no one has thought because of that vestigial provisions, as dormant as the provision in the 1921 Budget and Accounting Act, that the Tennessee Valley Authority is a committee of the Congress.

It has functioned in a clearly executive capacity, redeveloped an entire region of the United States, notwithstanding a provision which purports to give to the Congress the power to remove even without the participation of the President.

Warren E. Burger:

But how was he appointed in the first place?

Michael Davidson:

By the President with the advice and consent of the Senate, as is the Comptroller General.

And in response to the question what does the Comptroller General do for the executive branch, I would add that in each of our libraries there are 60 or more volumes of Comptroller General decisions, decisions which are rendered principally, overwhelmingly at the request of the executive branch, Disbursing and other fiscal offices, asking for the Comptroller General’s ruling on proposed expenditures.

The Comptroller General is able to undertake that function because in the 1981 Act the Congress made the critical decision that he must be an officer of the United States, appointed by the President under the appointments clause.

William H. Rehnquist:

That isn’t entirely a courtesy, though, on the part of the Comptroller General, because the reason the executive branch authorities seek the Comptroller General’s ruling is that they run the risk of being surcharged, don’t they?

Michael Davidson:

And the reason that they run the risk of being surcharged is that the Comptroller General inherited under the statute the power of the control of the Treasury, to issue rulings which are binding on the executive branch.

When the Congress considered in 1921 how he should be appointed, it was deemed to be indispensable that he be appointed by the President because of that very kind of power.

In 1980 when the Congress provided for the recommendation of names to the President on the appointment of the Comptroller General, the statute was deliberated over several Congresses.

The point made by the Department of Justice that, in order for the Comptroller General to continue to exercise his executive functions, the President must still retain the power, and complete power, to choose any Comptroller General for nomination to the Congress at his discretion.

The statute provides the word “recommend” several times.

The legislative history is absolutely explicit that the President may ask either for names… that’s in the statute… or to nominate anyone not on the list whom the President deems should be the recipient of his nomination.

The power of the President to nominate the Comptroller General, to appoint the person who he deems to be the best suited for that position, subject to the advice and consent of the Senate, has not been infringed upon by the 1980 enactment.

If I could turn to the delegation issue, the plaintiffs, Representative Synar and the Treasury Employees Union, ask this Court to affirm the judgment below on the alternative ground that the administrative powers under this Act may not be delegated to any officer, no matter what his or her constitutional qualifications may be.

The district court rejected that contention, holding that the Congress has made the policy judgments which constitute the essence of the legislative function.

Because the Act’s administrative mechanism is a standby procedure which may never be utilized after the present fiscal year, in large part plaintiffs’ contention is a theoretical argument against the possible implementation of a statute relating to future facts.

But as anticipated, the procedure is being utilized this year to effect a small reduction in this year’s estimated $220 billion deficit.

Yet plaintiffs point to no determination of the Comptroller for this fiscal year which is even colorably questionable under the delegation argument, but look ahead, as I will now with my argument, to the fiscal years which will follow.

Byron R. White:

If the Solicitor General… or, not the Solicitor General, but if the delegation argument were accepted and we didn’t agree with you, would the judgment below be expanded or would that give the plaintiffs additional relief?

Michael Davidson:

It would effect the result in this way.

The relief would be the same.

Fallback would be required.

Byron R. White:

Right, right.

Michael Davidson:

This is an appropriate use of the fallback mechanism.

If the Congress can’t delegate this authority to any official, no matter what his constitutional qualifications may be, then the only way to provide–

Byron R. White:

So the judgment would we really the same?

Michael Davidson:

–The judgment would be the same.

Again, the consequences of the judgment would be vastly different because it would affect the very significant law of delegation.

Byron R. White:

Yes.

Michael Davidson:

And it would, of course, render it insignificant if the Congress attempted to correct the statute by providing for the delegation of this authority to any other officer.

Congress would be told that it cannot provide for an administrative mechanism, even on a standby basis.

Looking ahead, then, with the plaintiffs to future fiscal years, it is important to note both what the Comptroller General does and when he does it.

The annual budget process begins in January or February, when the President submits his message to the Congress, and continues until October 1st, when it is hoped that the Congress has completed action on the budget for the following year.

The Comptroller General’s formal administrative responsibilities under the Act occur in the latter part of this process, on the eve of its home stretch in September, when the Comptroller reports to the President on August 25th about the extent to which the budget which has been enacted to date or, utilizing various assumptions in the statute which would then apply if it has not been enacted, calculates the amount by which the deficit would exceed the amount prescribed in the statute.

The terms of the Act establish that the Congress has fulfilled the essence of the legislative function by establishing policy and prescribing the means of attaining it.

First the law, and not the Comptroller General, determines what the maximum permissible deficit is.

The Comptroller General is simply given no authority to make economic judgments or his own behalf as to what the desirable level of deficit financing should be.

And the law, not the Comptroller General, established the legal rules for the assumptions about what should go into or be excluded from the base of revenues and expenditures.

The law, not the Comptroller General, establishes that any required reductions should be spread across the budget.

It mandates equal sacrifices on the defense and non-defense sides of the budget.

It mandates designated exceptions and limitations.

And then it mandates uniform reduction of all other accounts.

After examining the Act in great detail, the district court concluded that it was not true, as the plaintiffs allege, that the Congress has declined to make the hard political judgments.

It is true that the Act delegates to the Comptroller an important fact finding function.

But those facts, the district court correctly concluded, are no more difficult to ascertain than the facts which are calculated in determining the discount rate, functions which other agencies wielding far more economic power have undertaken without question for years.

In this Court, in addition to renewing their specific arguments which the district court had rejected, the plaintiffs make the further argument that the Act should fail because it was motivated in their view by the desire of Congress to avoid political responsibility.

This new contention founders on the principle that the Court will not inquire into the praiseworthiness of the motives of the Congress.

But moreover, objectively, as the Act is structured and as it in intended, it is designed to promote, and not to avoid, political responsibility.

If in any of the next five years the Comptroller reports to the President and the Congress, on the basis of the law and facts in August of that year, that there will be an excess deficit, then the President is to issue a deficit reduction order.

But the effectiveness of that order is delayed from September 1st to October 1st, for perhaps the 30 most critical days of the entire budget calendar.

What that report does is it informs the Congress of the degree to which expenditures must be reduced or revenues increased to provide for deficit reduction in another manner.

And literally every appropriation, every revenue decision of the Congress in that month, is done with the full knowledge of the legal consequences of not producing deficit reduction in another way.

And then the Act provides that the President shall issue a further order in the month of October, following a subsequent report of the Comptroller.

Michael Davidson:

That report of the Comptroller will identify for the President, for the Congress, and for the public the degree to which the Congress has either attained the objectives of the Act in another way or has not attained those objectives.

Furthermore, political accountability is ensured by the very nature of the spreading of the deficit reduction across the budget.

This is not an Act that singles out individual groups for special treatment.

It’s an Act that requires that reduction be across the budget and affecting a wide variety of groups.

The parties to this lawsuit, whether they be members of Congress, the executive branch, the amici representing very articulate and powerful interests, are all participants in that process.

So what we have here is an opportunity through the political process to decide whether the Congress should in some other way achieve objectives which the Congress and the President have legislated into law.

If I could pick up a theme on the fallback, this administrative mechanism is a standby mechanism and, as I indicated, it may never be utilized again after this first year.

But it is a fundamental part of the statute, because it was perceived by the sponsors of the Act and endorsed by the Congress that a mechanism, reliable and predictable in nature, was necessary to discipline the budget process.

If this Court is to strike the administrative mechanism, then it removes from the statute what was perceived to be the statute’s unique contribution to deficit reduction.

Now, there may be some circumstances in which the fallback is the perfectly appropriate alternative.

If, for example, as I indicated, this Court would decide that this power may not be delegated to an administrative officer, then annual deficit reductions through legislation is the only alternative.

And if this Court were to conclude, agreeing with the Solicitor General, that this function could only be performed by an officer who serves at the President’s pleasure, then it is difficult to say that the Congress would have passed this statute.

And the reason why it is difficult to say that is that it is indispensable to the statute that there be a neutral mechanism, not committed to the policy objectives of the Congress or the President, to play the role of scorekeeper.

Warren E. Burger:

Would you say that that objection was founded on the same objection to the line item vetoes?

There’s some resemblance there?

Michael Davidson:

It is a very similar type of concern.

Policy decisions are made by the Congress in enacting appropriations.

This Act requires that, if there is to be deficit reduction under the Act, no program or project will be singled out with any different treatment except as provided in the statute through an exemption.

Byron R. White:

Well, what if we took the suggestion that Mr. Cutler suggests, that if the problem with the statute is the removal Power by Congress, which the district court emphasized, do you think that Congress would have passed this statute if it didn’t have removal power?

Michael Davidson:

I think the evidence is that it probably would have.

The reason for that is that in enacting this statute the Congress was only searching for an officer who would be neutral and impartial in those judgments.

There is not one shred of evidence in the legislative history that the Congress was seeking an officer over whom it had any control.

If the removal provision was stricken and if either the result was that the Comptroller General was removable only by impeachment, as the only other alternative under the 1921 Act, or that there is an implied reservation of presidential authority, constitutional presidential authority to remove for cause, the Comptroller General would remain an independent officer.

The reasons for removal do not include disagreement with his policies, but only malfeasance in office or gross inefficiency in office, the failure of the office to operate, but not the determinations of the office.

William H. Rehnquist:

Don’t you run the risk, if the removal provision of the 1921 Act is struck down, that you would leave the office simply removable by the President at will?

Michael Davidson:

We agree with the Comptroller General that under this Court’s decision in Weiner the Court would look to the functions of the Comptroller General in determining whether it is the kind of function which requires presidential removal at will.

And we think that it would find in those circumstances, starting from the 1921 Act, that it was the intention of the Congress that the Comptroller General not be subject to the policy pleasure of any official of the United States, whether it be the Congress or the President.

The Congress thought in 1921 that, looking at the cases that it then knew, prior to Myers, that it could be the agent to determine whether the Comptroller General had reached such a degree of inefficiency or malfeasance that removal was required.

But it specifically eschewed the power to remove for no cause at all.

If the Court retains that basic idea, which we think is required by the legislative history of that office, the Comptroller General would remain under the ’85 Act an independent officer performing exactly the function which the Congress has asked him to perform under that Act.

Michael Davidson:

In those circumstances, it would be unnecessary to radically change the statute from one which contains an administrative mechanism to one which requires an annual deficit reduction legislation, because the objectives of the Congress would still be preserved.

Let me add one further thought on the question of the 1921 Act.

We have made the further argument, as the Third Circuit decided only last month, that the removal issue is not ripe for adjudication.

The Third Circuit emphasized the fact that it had never been used, and I would like to add just one further point to that.

The 1921 Act provides for a future enactment of the Congress.

That’s an enactment which would have to be approved bicamerally and presented to the President.

This Court has never anticipated a future enactment of the Congress.

And prior to the Congress ever adopting a joint resolution of removal, it would be faced with the serious constitutional questions that this Court’s decisions from Myers on have presented.

We think that the level of respect from one coordinate branch to another… that the Congress be given that first opportunity, if ever the removal issue were presented to it.

Warren E. Burger:

Earlier, Mr. Davidson, you had made… at least I got an intimation that judges could make some kind of an appraisal of whether Congress would or would not have passed the ’21 Act without the removal privilege.

Where do we get our authority to try to make judgments of that kind?

Michael Davidson:

I think it is the judgment that this Court made in Chadha, the legislative veto case, when the contention was placed before the Court that the Congress would not have delegated the authority to the Attorney General to suspend and then cancel deportation without reserving the opportunity to review that decision.

Warren E. Burger:

Do you think that was a key factor in the Chadha holding?

Michael Davidson:

Not in its constitutional holding, but in the Court’s prior, preliminary ruling that that statute was severable.

The same severability analysis applied to the Comptroller General would indicate that Congress has intended to assign to him the administrative functions which he has had since 1921, and that if there is a defect in a potential method of Congressional control over that assignment of powers to an officer of the United States, the defect is cured by striking it and retaining the authority of the officer.

Thank you.

Warren E. Burger:

Very well.

Mr. Solicitor General?

Charles Fried:

Thank you, Mr. Chief Justice, and may it please the Court.

Section 251 of the 1985 Act gives the Comptroller General critical responsibility for the execution of the Act by assigning to him the determination of reductions in outlays throughout the Government.

This grant of authority violates the Constitution, first and principally because the grant is to an official removable only on the initiative of the Congress, an official who is for this and because of Congress’ intent expressed in many other ways an agent of Congress.

And second, because executive functions importantly affecting the whole of the executive branch and directing the President himself may only be performed by an officer who serves at the pleasure of the President.

I would like to say at the outset that this second argument does not in our view in any way cast any doubt on the validity of agencies such as the Federal Reserve Board, the Federal Trade Commission, or any such agencies, and that the notion that the second argument in some sense endangers those agencies or would embark this Court on some constitutional adventure is simply a scare which we don’t intend to throw into the Court and I don’t think need be thrown there.

Sandra Day O’Connor:

Well, Mr. Fried, I’ll confess you scared me with it.

[Laughter]

So why don’t you explain.

Charles Fried:

Well, the principal point, Justice O’Connor, is that the powers which are given to the Comptroller General here are so sweeping they affect every nook and cranny of the executive department.

They give orders to the President himself.

They affect every one of the executive agencies.

And there is no single agency of those that we are perfectly familiar with which has any such sweeping powers.

Charles Fried:

And the argument we make is simply that an officer who can have that pervasive effect on the executive branch must be removable by the President at will.

Sandra Day O’Connor:

Well, that strikes me as kind of a novel doctrine you’re espousing, and I can’t quite put a finger on that approach in any of this Court’s previous decisions.

And I mean, can’t it be said that the Federal Reserve Board, for example, through its powers basically affects the financial structure of every agency of the Government?

Charles Fried:

The Federal Reserve Board is a good example, because in fact what the Federal Reserve Board does is to determine, as the bank which it is established to be, the interest rate it will charge to its clients.

Now, that determination has implications.

It has implications which do indeed have an effect.

It’s quite interesting that the statute setting up the Federal Reserve Board specifically said that nothing in it shall in any sense impinge on the powers of the Secretary of the Treasury.

Here we have an official who gives orders to the President.

I don’t think we have that in respect to the Federal Reserve Board or any other of the agencies which we’re familiar with.

So I think it’s really quite a different thing.

The reason that the argument that I’m making sounds novel is that these powers are entirely novel.

John Paul Stevens:

Mr. Fried, you don’t challenge the fallback position, do you?

Charles Fried:

Not at all.

John Paul Stevens:

That if this order, instead of being given by the Comptroller General, were based on the recommendation of the Comptroller General and then enacted in a joint resolution of Congress, that then the President would have to obey it.

Charles Fried:

Well, the President of course, as this Court has said on numerous occasions, exists to execute the laws.

John Paul Stevens:

Right.

Charles Fried:

And this would be a law, and it would be a law which he would to execute.

There’s no question of that.

William H. Rehnquist:

And you don’t challenge the delegation, do you?

Charles Fried:

No, Justice Rehnquist.

It would seem to us that between one far pole, where the actions of an officer are merely ministerial… in our view, the Comptroller General’s actions here are very far from being merely ministerial… and the other far pole, where the officer acts entirely at large, there is a very large terrain.

It is the usual terrain of executive action and administration, and it is in that terrain that the Comptroller General is asked to act.

Byron R. White:

So if these functions had been assigned to the Secretary of the Treasury, you would say it was a perfectly good delegation–

Charles Fried:

That would have been–

Byron R. White:

–just like you say it is here?

Charles Fried:

–perfectly proper, if it had been assigned to the Secretary of the Treasury.

Warren E. Burger:

Or the OBM?

Charles Fried:

Or the Director of the OBM, yes, Chief Justice Burger.

In our view, the principal purpose of the Office of the Comptroller General established in the 1921 Budget and Accounting Act was to serve as the auditor for Congress.

To the extent that the Comptroller General has interpreted the 1921 Act as going beyond that conception, the executive has always resisted such accretions to the central function.

Charles Fried:

In 1933, the Solicitor General said to the Court in Miguel against McCall… and I’ll quote it in extenso because it’s exactly our position today.

“It was the purpose of Congress that the Comptroller General should. “

–now quoting from the Act…

–exercise in general a control over all of the accounting procedures of the government.

but, said the Solicitor General–

“the accounting procedures relate to accounting, and power over accounting is not power to decide how the laws shall be administered. “

That is precisely our contention today, that power over accounting is not power to decide how the laws shall be administered.

And that has been the consistent position of the executive branch.

William H. Rehnquist:

What about the management audits that the Comptroller General conducts?

Do you think that’s an improper use of that function?

Charles Fried:

Those are very useful, but the position of the executive branch has consistently been that those are not final and determinatively binding on the executive.

That indeed was the issue is Miguel against McCall, and this Court supported the executive, ordered that a particular pension be paid to a Philippine scout which the Comptroller General general had finally determined should not be so paid.

So the position really of the executive has been that way consistently.

In 1969, when the Administration instituted the so-called Philadelphia Plan, the Comptroller General purported to say that this was an unauthorized use of appropriations.

The executive resisted that determination.

In Stotts v. Lynn, then the Comptroller General, under the impoundment… in the Impoundment Control Act, sought to bring suit against the executive, the executive resisted that exercise of power by the Comptroller General.

Warren E. Burger:

Are you suggesting, Mr. Solicitor General, that when the Comptroller General exercises that kind of a function he is calling attention as an overseer, calling the attention of Congress so that Congress the next time around on the budgets can deal with the problem that the Comptroller General has pointed out?

Charles Fried:

That is our view of his principal function, as the auditor for the Congress, on behalf of the Congress, as one of the Congressmen in the debates on the 1921 Act said, a watchdog and a critic on behalf of Congress.

And that is the central function which the Comptroller General so admirably has performed throughout the life of that office.

Sandra Day O’Connor:

Well, if you’re correct is he still an officer of the United States who must be appointed by the President?

Charles Fried:

We make no point of whether he is an officer of the United States.

Because he has been appointed by the President, he is an officer of the United States.

We’re not at all sure that these very same functions could not as conveniently and as easily have been performed by someone appointed by the Congress itself.

But having been appointed by the President, we make no point of the fact that he is or is not an officer of the United States.

The constitutional temptation here, as in Miguel against McCall, as in Stotz v. Lynn, and throughout this history, has been on the part of Congress to try to have it both ways.

Our constitutional scheme is one in which Congress makes general laws and the executive administers those laws.

Congress cuts the pie, the executive chooses.

In this case, Congress has sought both to cut the pie and to choose.

Congress chooses to legislate in a general way because circumstances make detailed regulation inconvenient.

Yet here it has been unwilling to let go of the actual administration of its general will, and so it has cast about for an agent who is at once respected for its competence and integrity, but nonetheless has a close and special relationship to itself.

Charles Fried:

And that is, and from the outset has been, the conception of the Comptroller General.

If this assignment of executive power by Congress to its agent the Comptroller General is good, what may Congress not assign to him?

The idea has great potential.

Indeed, in a provision of the very section before us which has not been brought into action, 251(d)(3)(C)(2), it is stated that the President may cancel certain defense contracts, but only if the Comptroller General determines that saving money in this way is reasonable.

We wonder, could Congress circumvent the Chadha decision by conditioning the promulgation or repromulgation of agency regulations on some such determination by the Comptroller General of reasonableness or consonance with the public interest?

In short, what we have here is a temptation, a potentiality for what the Federalist Papers called aggrandizement by the legislative branch.

And like Chadha, we view this potential as particularly menacing.

Our first and principal contention is that the Comptroller General is an agent of Congress and so may not perform the significant and pervasive executive functions assigned to him by this Act.

It seems quite clear that the functions assigned to the Comptroller General are indeed full of judgment, full of discretion.

He must make predictions based on very controversial criteria: What will interest rates be?

What will be the level of unemployment?

Byron R. White:

Well, Mr. Solicitor General, would you be satisfied with a judgment that in performing these functions the Comptroller General is a purely executive officer, subject to the removal by the President at will?

Charles Fried:

I don’t see how this Court, Justice White, could arrive at that conclusion.

Byron R. White:

Well, you’re arguing that performing these functions do make him a purely executive officer.

Charles Fried:

Justice–

Byron R. White:

Aren’t you?

Isn’t that your argument?

Charles Fried:

–It is, Justice White.

We argue that… no, actually there’s a trap there, I think.

[Laughter]

It’s a trap.

It’s a trap into which we believe the Amerine court fell, because that is to argue in a rather tight circle, and I’d rather not do that, because that is to ask, is the Comptroller General doing something executive?

Yes, he is.

Then therefore he’s a member of the executive branch, and then therefore it’s all right for him to do something executive.

Byron R. White:

I take it you–

–Then… excuse me.

Then he would be removable by the President at will?

Charles Fried:

That would go Mr. Cutler’s route as to severability, and we have great doubts about that because severability is a matter of divining the intent of Congress in the event that something Congress has done–

Byron R. White:

So you say that we… you would be satisfied with that judgment, I suppose, but you think that would be an imperfect judgment because that isn’t what Congress would have intended?

Charles Fried:

–We would not be satisfied with that judgment, with respect, because we think it would he an incorrect Judgment.

Byron R. White:

All right, all right.

But let me just ask, if I may at this point, if you’re right that the assignment of these functions makes him pro tanto an executive officer, it seems to me then one would conclude that the Congress has in effect amended the 1921 Act and said, this is an executive removable by the President; the President could remove him and appoint the Secretary of the Treasury Comptroller General and go about his way.

I don’t know why that couldn’t follow.

Charles Fried:

The 1985 Act was passed under the shadow, under the clear shadow, of the doubts which the executive had always raised about giving executive functions to the Comptroller General.

Indeed, as the Act was being debated the executive branch had filed objections exactly the same tenor as my argument today in the Amerine case.

And in the face of that fact, the Congress said: If the CBO-OMB-General Accounting Officer trigger fails, then what we want is the fallback provision.

And if that is what Congress determined, then surely that is what this Court should do.

It’s the question whether… well, it’s quite striking, because we have here a central conception of who this officer is.

He is, as we say, the auditor for Congress.

Now, Congress has come in and given him another inconsistent role.

Surely the appropriate thing to do is to remove that later, inappropriate role, rather than to reconstitute a whole office which was very deliberately constituted in that way in 1921.

Thurgood Marshall:

Mr. Solicitor General, if I back up a minute, you paraded quite a few horrible things that could happen if Congress took over the job.

Why is it not possible for the President to do the same?

I mean, is Congress the only body in Government that does wrong?

Charles Fried:

Oh, no.

The President in the many years of his history I’m sure has committed as many wrongs as the Congress.

But he commits his wrongs in the execution of the law and Congress commits its wrongs in making general laws.

It world be a pity if they started committing each other’s wrongs.

[Laughter]

Thurgood Marshall:

Does that help me at all?

Charles Fried:

I think so, I think so.

I think it’s very important that the division of powers in the Constitution be kept rather distinct.

The Constitution, after all, says that the legislative power, Section 1 of Article I, this legislative power is in the Congress.

Thurgood Marshall:

I learned that in my first year of high school.

Now can we get to something else?

Charles Fried:

And it is… well, I think that is what we rely on, that the legislative power is in the Congress, while the executive power is in the President.

And for that reason, it is a dangerous confusion to start giving executive powers to Congress or, I suppose, legislative powers to the President.

Sandra Day O’Connor:

Mr. Fried, do you say that none of the other powers of the Comptroller General prior to this particular Act were executive powers in essence?

Charles Fried:

Justice O’Connor, it was the position of the executive in Stotz v. Lynn that the power under the Impoundment Act to bring suit was not valid, and for very similar reasons to those that I’m making here.

It was our position in 1969, when the Comptroller General purported to make a definitive, binding ruling that the Philadelphia Plan was unauthorized, that the executive department must look to the Attorney General for binding opinions as to law.

Charles Fried:

And indeed, that was the issue in 1933 in Miguel v. McCall.

So there are these expressions on the central role of the Comptroller General, and wherever they have appeared the executive department has been vigilant to make an issue of them, that is correct.

But that is an issue, that is a vigilance, we have exercised for over half a century, and in precisely the terms we urge on you today.

That the Comptroller General is an agent of Congress is we think shown most dramatically by the mode of his removal.

The Congress was very aware of what it was doing when in created this mode of removal.

It chose to do that knowing how to make an agent removable for cause by the President, and yet did not do so.

Subsequently to that legislation, the Congress on a number of occasions has described the Comptroller General as being within the legislative branch.

And indeed, the Comptroller General by his own profession is a member of the legislative branch.

At the beginning of the red book, the Comptroller General’s bible, the principles of federal appropriations law, he states that the GAO is a nonpartisan, independent agency in the legislative branch.

And this Court itself has adopted that designation in the very recent case of Bossier and Marc, adding the phrase that

“The Comptroller General exists in large part to serve the needs of Congress. “

Now, this seems to us to indicate the kind of subservience which is inappropriate in one executing the law.

This subservience, of which the district court spoke, is of course not a personal reflection on the Comptroller General.

His office has been characterized by integrity and competence.

I hope the same thing would be said of the Office of the Solicitor General.

Yet there is no question but that that officer is subservient in the constitutional sense to the President, as the provisions for his removal in the statutes clearly show.

The point we make about subservience is a structural, not a personal, point.

Now, I’d like to return for a moment to our second argument, which is that these powers, whatever other powers may be given to an officer who is not removable at will by the President, these powers are so far-reaching that they constitute indeed a constitutional novelty, and a novelty of quite remarkable proportions, and that the holding in Humphrey’s Executor, the practice of the legislature, the whole existence of administrative agencies, in no way provides a precedence for this kind of sweeping power, a power which extends to giving orders to the President himself.

Now, as to the severability, I think that a number of the questions–

Byron R. White:

If we agreed with your argument, we would be foreclosed from saying the district court erred in not striking the removal provision of the 1921 Act?

Charles Fried:

–I believe so, Justice White, yes.

Byron R. White:

And you didn’t cross-petition here or cross-appeal?

Charles Fried:

We did not, we did not.

If one turns to that removal, the severability problem, it is a question, what exactly is this Court to do if they agree with Mr. Cutler’s suggestion?

Is it to be a simple excision of the offending removal provision, leaving the Comptroller General irremovable?

Or does Mr. Cutler propose reconstructive surgery, with some new removal, some new and apt removal provision being substituted?

The very question indicates how inappropriate it would be to reach back and refashion an office carefully fashioned in 1921 in order to solve a problem created in 1985, particularly when in 1985 the Congress quite explicitly stated what it wanted done in the event there was a problem.

Thank you.

Warren E. Burger:

Mr. Morrison.

Alan B. Morrison:

Mr. Chief Justice and may it please the Court:

Alan B. Morrison:

As I was listening to the argument this morning, I tried to put myself in the place of someone in the audience who had not read all the briefs and been through the statutes, and to ask myself, why did Congress create this Gramm-Rudman mechanism?

What were they trying to do by putting a new form of governance into place in which we had one part Office of Management and Budget, one part Congressional Budget Office, and added the Comptroller General on top of it?

This surely was not, as Mr. Davidson suggested, a standby mechanism, because we have all the standby mechanisms we need.

This is operative unless Congress passes a new law to change it or unless Congress meets the budget targets of the statute.

No, what Congress was trying to do here… and this is wholly undisputed… was trying to create an elaborate mechanism under which it could obtain a reduction in the budget deficit without having either to increase taxes or to cut any of the spending programs, because it was unable to muster the votes needed to do that under our law-making provisions of the Constitution.

And so it set up a new mechanism to do this.

It didn’t do it, as it has so often done it in delegating authority to administrative agencies, because it had too many decisions to make, because the questions were too technical, because we needed fairness and adjudicative proceedings.

It didn’t do that for any of these reasons.

It did it so it could accomplish through the backdoor that which it could not accomplish through the front door.

And indeed, it is not even going to relieve itself of any responsibilities, for under this statute, each year, as it did each year beginning in 1789, including 1985 and already in 1986, it is now passing on the very same appropriations laws that it has always passed on, and it will have to pass on through 1991 but with only one difference, and that is that those laws really won’t count because if these three unelected officials under the statute determine that Congress hasn’t done its job properly, or they and the President have not been able to reach agreement on a proper target deficit, then the Gramm-Rudman override comes in as a permanent rider affecting future laws by changing what is actually going to be appropriated.

That, I suggest to you, is a kind of function never before found in the history of our Republic, where administrative officials are overriding whatever Congress may do in the future insofar as this particular area of the law is concerned.

And it is not a minor matter.

It is quite properly, as the Solicitor General observed, a sweeping power extending the entire breadth of the federal government.

In this year alone, the budget reduction was $11.7 billion, and it would have been far higher but for the cap put on it in the statute.

We simply don’t know how much the budget, the deficit reductions are going to be in the future.

And all of this is not based on what you would hear today as some kind of a precise formula.

The key ingredients in this deficit reduction program are estimates.

They are estimates made as to inflation rate, unemployment, the gross national product.

They are estimates made on the basis of what someone thinks is going to happen to the economy.

William H. Rehnquist:

But they are at least factual, Mr…. or essentially in the realm of fact, Mr. Morrison, rather than policy that agencies have been given authority to enforce.

Alan B. Morrison:

Well, I want to turn to that, and I suppose this is as good a time as any, Mr. Justice Rehnquist.

I think the best evidence that these judgments being made are political is what happened when Congress reviewed the possibility that these determinations would be made by OMB.

The House said we simply cannot accept that because OMB is political, as Justice Stevens remarked earlier.

These standards are subject to such manipulation, they could come out with anything.

Indeed, Senator Gramm was asked on the floor of the House… on the floor of the Senate, what is the range of budget deficit cuts we are talking about?

He said I couldn’t give a worst case scenario.

In 1985 alone, from August when Congress reached its predictions as to what the budget deficit was going to be, until October when Gramm-Rudman reached the floor of the Senate, the prediction in that narrow timeframe changed $30 billion, and in 1981 there was a swing of $60 billion in predicted deficits in a matter of 60 days.

And it seems to me that the key ingredient in taking this away from–

William H. Rehnquist:

$30 billion or $60 billion as percentage of what?

Alan B. Morrison:

–Well, as a percentage of the entire federal budget, it is close to a trillion dollars, and so far as the portion which is not exempt, it is about $500 billion or $600 billion.

William H. Rehnquist:

So you are talking about 10 percent, 5 percent, something like that?

Alan B. Morrison:

The cuts this year were 4.3 percent and 4.9 percent for non-defense and defense, but this is only on a prorated basis.

And that was… those cuts were that small because we had a cap built into the statute.

Next year there is no cap.

If the revenue projections in the statute, in the… that were used to form these deficit reduction targets, turn out to be wrong because we have much less income, then we have no limit at all on how much the deficit reductions are going to be.

And what happened here in this statute was that the House of Representatives and the Senate said we cannot give these judgments to the Office of Management and Budget because these are subject to such political manipulation, and if you look at the statute, you will understand why.

There are lots of provisions in the act dealing with how to allocate the cuts between one branch and… between one part of the government and another, what to do if Congress doesn’t pass appropriation laws, what to do about cost of living increases.

But there is not a word in the statute or the legislative history about how one is to go about predicting what the interest rate is going to be, what the gross national product is going to be.

No one knows what these figures are going to be because they are raw, discretionary determinations, entirely proper to be made provided that they are made by the lawmakers in this country, that is, the President in conjunction with the Senate and the House of Representatives as envisioned by Article 1 of the Constitution.

That is how the laws are being made.

We have here a situation in which the hard policy choices have not been made, and I suggest to you that the very reason that Gramm-Rudman was enacted was because the Congress found that it was not making the hard choices.

It wanted to have defense, it wanted to have social programs, it wanted to have clean air, it wanted to have transportation, and it couldn’t pick and choose among them.

So it hoped that by creating this mechanism you would have three unelected officials do the job that Congress was supposed to do.

And I suggest to you that that kind of abdication goes to the very heart of our system of government, and it changes all of the dynamics around in our legislative process.

These are not the kind of facts that administrators normally find.

These are sweeping predictions as to the future, trying to say what is going to happen to the economy.

They are the kinds of determinations which need to be made and which Congress will continue to make every year.

But that should be done in the legislative process.

John Paul Stevens:

But Mr. Morrison, it is a fact, is it not, that in this particular… the experience we have so far, the congressional estimate, the executive estimate, and the Comptroller’s estimate are all pretty close to one another?

Alan B. Morrison:

I think in fairness, Justice Stevens, there are two points to make.

One is that they were made in the middle of the fiscal year as opposed to three or four months before the year.

But much more important, it didn’t make any difference because of the $11.7 billion cap.

Indeed, we heard this morning that the budget deficit would actually have been $220 billion.

And so while the estimates turned out to be the same, nobody had to spend much time worrying about them because there was no consequences.

Indeed, the Comptroller General himself said he did that for that reason.

John Paul Stevens:

Yes, but the fact that they didn’t have any consequences, it seems to me, would be more reason to anticipate wider variation rather than coming close to the target.

I don’t see how that cuts any ice on the way they went about doing their job.

I assume they did it conscientiously, and they did in fact come out pretty much the same.

Alan B. Morrison:

That is correct.

I don’t think anybody believes that these figures are not subject to wide fluctuation and variation.

Alan B. Morrison:

Indeed, that was the whole premise on which the House of Representatives insisted that the House… that the Office of Management and Budget be taken out of them, simply because they didn’t trust them, and the reason they didn’t trust them is because there’s nothing in the statute to get your hands on.

If you look in the statute, there’s not a word about how anybody is to figure out any of these very amorphous figures.

Equally important, of course, is the fact that in this statute there is a specific preclusion of judicial review for the very determinations which are at the heart of the deficit cutting mechanism.

All of these economic assumptions which underly the how much or in fact the whether of deficit reduction, all of those are specifically made non-reviewable.

So the Congress undoubtedly would have been concerned because, for whatever reasons, because of your views about the policy initiatives of the administration, because you were optimistic or pessimistic about the economy, you thought that this year would be a good year and there would be a little bit of a deficit, or because for other reasons you wanted to cut certain programs, and the only way you could cut those programs was to have a large target, a large miss in the target, so you estimated there to be a broad deficit reduction needed.

Whatever your reasons, there’s nothing in the statute that would prevent any of the judgments being made here with any number that you could think of.

Next year we could have an estimate of 20 percent inflation or 2 percent inflation, and nothing could be done about it except Congress could pass a new statute, or Congress could fire the Comptroller General.

Neither of those, we suggest to you, are appropriate.

Warren E. Burger:

Mr. Morrison, you may have noticed as a member of the bar that over the last 15 years on perhaps four or five occasions Congress has created special judicial panels and authorized the designation to those panels of judges already in office.

Is your argument with respect to allocation of these duties to the Comptroller General… put it this way.

Would your argument be that what the Congress has undertaken to do here is just as though they had asked that we assign these functions to some presently sitting judges–

Alan B. Morrison:

No, I–

Warren E. Burger:

–who have no executive authority and no legislative authority, and who are not removable by the President?

Alan B. Morrison:

–Well, I would certainly say that under this Court’s decisions that prohibit nonjudicial functions being performed by judges, I would say that a member of this Court or any other court could not perform the functions being performed by the Comptroller General here.

If in my primary submission… my primary submission is that these are basically legislative type functions of the kind that only Congress can be performed because there’s no standards and there’s no checks or balances, but if they are administrative type functions, then they must be performed by someone at the very least who may not be removed by the legislative branch, that Congress cannot have the power to retain a hand on the execution of a law once it has decided what the law shall be.

Byron R. White:

Well, you say, you say these are legislative functions, so do you disagree with the Solicitor General that they are purely executive functions?

Alan B. Morrison:

No.

I believe that the–

Byron R. White:

Well, they can’t be both.

Alan B. Morrison:

–That is correct, they cannot be both.

I believe principally that the functions being performed here are legislative type functions.

If the Court disagrees with me and says that the delegation is proper, then I say the delegation must be performed by a person who may not be removed by the Congress.

Byron R. White:

You mean the functions may be–

Alan B. Morrison:

Must be performed by a person who may not be removed by the Congress.

Byron R. White:

–I see.

That’s why I suggested the question, the hypothetical of some of these judges who couldn’t be removed if the–

Alan B. Morrison:

They couldn’t be removed by the Congress.

That objection would be correct, Your Honor.

I would also say, though, that I believe that this Court has ruled that judges may perform only judging type functions.

They may not perform executive functions under principles of separation of powers, much as the Court ruled that the Congress could not perform executive functions in the Chadha case.

Warren E. Burger:

–But your conclusion would be that if they had made that assignment to these judges selected in that way, it would be just as improper as the one you are now challenging.

Alan B. Morrison:

Precisely, precisely.

Warren E. Burger:

And for the same reasons.

Alan B. Morrison:

Well–

Warren E. Burger:

Or similar.

Alan B. Morrison:

–Very similar reasons, yes, Your Honor.

Warren E. Burger:

Similar reasons.

Alan B. Morrison:

Yes, Your Honor.

Let me turn to the second argument I made, which is made only in our brief, and that is that… and this involves the aspect of the statute under which the Office of Congressional Budget is an intimate part of the decisionmaking process here.

That is, when the House… when the Senate passed this bill, there was a joint determination to be made by OMB and CBO that would have become the operative determination.

Everybody recognized that that would be plainly unconstitutional under Chadha and other, and Buckley because the control… the Congressional Budget Office is a pure arm of Congress, no pretense of being appointed by the President.

In order to attempt to cure that, what the Congress did was to put an overlay on top of the same report that was going to be issued by OMB and CBO of the Comptroller General, and the question before the Court in our view on point number two is whether the addition of the Comptroller General serves sufficiently to cure the constitutional defect caused by the Congressional Budget Office being an intimate part of the process.

The defenders of the statute say that the CBO is purely an advisory official; it does nothing but render advice to the Comptroller General.

That, in our view, is an incorrect view of the statute, and indeed, of what has happened under it by the Comptroller General’s own affidavit.

And I say that principally because when one normally thinks of an advisor, the key element of an advisor is that you can either take their advice or reject it at will.

That is not the case with the statute here.

The Comptroller General’s discretion vis-a-vis the two other officials, including OMB and CBO, is that first… and this is in the statute itself… he must give due regard to their findings; second, he must explain fully any deviations that he makes from them; third, the legislative history and the conference report says that the Comptroller General must use his “utmost discretion” before altering any of the findings which they made.

In the memorandum to the House and the Senate before the final debate on passage, the report of CBO and OMB was referred to as a “draft order”, and as Senator Gramm said in supporting this piece of legislation and the Comptroller General’s role, the Comptroller General would be the “final arbiter”.

Now, that to me does not sound like a pure advisor, and in fact, Congress did one other thing which confirmed the major role they thought that CBO would have, and that is under the fallback mechanism, it doesn’t even care what the Comptroller General says about these deficits; it relies solely on the report of OMB and CBO.

Now, of course, the Comptroller General has the final say.

He is ultimately responsible.

That is not our bone of contention.

What we dispute is whether anyone can fairly characterize this process as purely advisory, particularly since the Comptroller General has put in an affidavit which is in the Joint Appendix saying that throughout this process he consulted consistently with OMB and CBO in order to make the process work, since indeed he has only five days from the time he gets their report in which he is going to issue his final order, and two of those days in each of the first two cycles come on weekends.

So I respectfully suggest to you that what Congress tried to do here was to keep its hand in the process, to have its budget person continue to be part of the process so that it would not get skewed away from it, and it tried to do that in order to assure that these open-ended standards would be met, and it did it this way and through the Comptroller General who, as Ms. Williams will now explain, remains an important arm of Congress in the process.

Warren E. Burger:

Very well.

Ms. Williams?

Lois G. Williams:

Mr. Chief Justice, and may it please the Court:

The role of the Comptroller General is obviously the central question in this case.

We have argued in agreement with Mr. Morrison that he is required under this act to make legislative decisions, but I would like to spend most of my time today saying that if these aren’t legislative decisions under the act that he is making, then at the very least, they are executive decisions.

They can’t be nothing.

Lois G. Williams:

They–

Byron R. White:

Well, why does it… why does that follow?

Are you arguing the delegation point?

Is that it?

Lois G. Williams:

–No, I would like to spend my time on the separation of powers, Comptroller General role, Your Honor, but, but I say–

Byron R. White:

But they could be… they still could be at least quasi-legislative functions and be delegated.

Lois G. Williams:

–Yes, indeed.

Byron R. White:

And they wouldn’t necessarily follow that they are executive functions.

Lois G. Williams:

Yes, indeed.

It is… it seems to me that no one disputes that there are significant decisions made here–

Byron R. White:

So just because they are delegated doesn’t mean that they cease being legislative.

Lois G. Williams:

–That’s true.

If it were performed strictly in aid of the legislative function.

Byron R. White:

Then why do you say that they have to be either.

Lois G. Williams:

Well, I don’t understand… I beg your pardon.

I don’t understand the Appellants to be making the argument that these are strictly in aid of the legislative function, but rather, that they are functions that may be performed by an independent officer, and that they rely on that notion.

But I would say that they are… pardon me, Mr. Chief Justice.

I would say that they are executive in nature for the same reason that the Solicitor General does, because what is left to the Comptroller General, if he is not legislating when he is doing this, is the full implementation of this law.

That’s what’s left to him.

That you wouldn’t do with a congressional committee.

That you couldn’t do with an arm of the Congress.

He is taking over the role of the executive in the function.

Warren E. Burger:

–Well, that’s what I was going to get at.

Are you saying that he’s impinging, he is not performing an executive function in the sense that the true executive does, but he is impinging upon the executive role?

Lois G. Williams:

He is indeed, Your Honor, but he is doing it in large measure by, as I say, fully implementing the law himself.

The President has virtually no role but to sign the order once his work is done.

So every significant decision, every decision that is made after the legislature finishes its work is made by this officer, and the only thing that’s at issue here in this case is whether Congress’ power to remove that officer disables him from administering this law.

That’s the only question.

And there is no decision of this Court that suggests that Congress may assume for itself the right to remove an officer who administers the law.

Byron R. White:

Well, then, absent the removal power by Congress, you would say this 1985 act is all right?

Lois G. Williams:

Yes, if this were… if we’re talking strictly about the separation of powers question, forgetting the delegation argument, I would say there is no violation of the separation of powers if this power is deemed executive and it were given to the executive branch, that’s correct.

Byron R. White:

Well, I know, but absent, absent… if there was no provision for congressional removal of the Solicitor General… of the Comptroller General, then this act would be all right?

Lois G. Williams:

I would like to see what the Office of Comptroller General would be like without removal, but if he were indeed functioning like a truly independent officer, although that’s not at issue here, I certainly am not prepared to argue that that would be unconstitutional, Your Honor.

Byron R. White:

Well, the Solicitor General is, as you know.

Lois G. Williams:

Yes, and let me just say about that that I think the question of what kind of an officer could perform these duties is really not at all before this Court, and the reason is that to decide that the President must remove this officer in some way is by definition to decide that he may not be removed by Congress, which is now the fact, and if that is true, then the fallback mechanism that the statute provides should take place because the congressional removal would render the Comptroller General unable to perform these functions.

It would simply be advised to the Congress, should it decide to pass another law, what kind of an officer it might then choose to delegate this responsibility to.

That is not, not necessarily, not at all at issue here.

The question here is really quite narrow because of the uniqueness of the Comptroller General’s role and his position, his status.

He is the, as Mr. Davidson points out, not the only one but virtually the only officer who is so removable.

I would like to discuss–

John Paul Stevens:

Let me just ask one question about the removal power which you regard as critical, as I understand it.

Must we not presume that if Congress were to exercise its removable power, removal power, it would only do so for a reason specified in the statute, which would mean that it could not remove the Comptroller General because they didn’t like the way he performed his functions under this statute?

Lois G. Williams:

–Yes, Your Honor, I do assume, but the causes here are very broad: inefficiency and neglect of duty.

It’s true that those are among the specified causes.

They are virtually open-ended, and I am not at all sure how a Solicitor–

John Paul Stevens:

But surely they could not remove him for, because they disagreed with his policy judgments on estimating rates of inflation or unemployment.

Lois G. Williams:

–I take it they would never characterize it in that fashion, Your Honor.

And I think–

Warren E. Burger:

Are you suggesting they might regard that as inefficiency or neglect of duty?

Lois G. Williams:

–I think the causes are broad enough to include practically anything.

But I don’t… I don’t say that because the removal power exists… and it is narrower, certainly, than removal at will.

I don’t say that that is something that the Comptroller General has any reason to live in fear of, as no good employee does, I think.

The power of removal is the symbol of the ultimate power over this office.

It is one of many symbols–

John Paul Stevens:

Would you make the same argument if he could only be removed for committing a felony, say?

Lois G. Williams:

–Well, it would depend a little bit on how reviewable that decision would be, Your Honor.

John Paul Stevens:

Well, is this decision reviewable?

Nobody’s told us that.

Lois G. Williams:

That’s right, and I’m sorry, I don’t know the answer to that.

I think certainly the constitutionality would be reviewable.

John Paul Stevens:

Of the statute would be, but the… but I’m concerned about the exercise of it.

Say they said we now determine he is inefficient or something.

Lois G. Williams:

I have no reason to think that it would be reviewable, Your Honor, and given the fact that it is extremely broad, that is obviously a danger.

But as I say, I think that the notion that removal is somewhat remote, that possibility, doesn’t mean that it’s not relevant, and I think to hear the Appellants’ arguments suggests that it simply doesn’t matter that that removal provision is on the books, and indeed, they are willing to abandon it altogether, even knowing that there is a risk, as Mr. Cutler has conceded, that that might make removal by the President possible.

They… the assumption must be on their part that it has no impact on this office, and I think that that assumption defies both history and common sense.

And this is an officer whom the President does appoint.

But then, all influence ends.

And as members of the Court have indicated this morning, the Comptroller General certainly does do his work for the Congress.

The office exists to serve the needs of the Congress, as this Court has said, to help it legislate.

And even in those functions which have been spoken of as aid to the executive, it has been quite properly pointed out that those are helpful probably at least as much in aid of the congressional interest.

They are designed to assist the Congress in watching over the President’s stewardship.

That is why the office exists, and everything he does really exists in that position between the legislative and the executive branch, and in that position, he is the Congress’ partisan; he must be in order to perform his functions properly.

No doubt he does function in a largely nonpolitical, apolitical I should say, nonpartisan way, in a thoroughly professional way, but he cannot remain neutral as to the fact that Congress… it’s Congress’ interests he exists to serve.

The Comptroller General therefore is only as independent as Congress allows him to be, and it might suit Congress’ interests that he be quite so most of the time.

Thurgood Marshall:

This is true although Congress has never made an effort to exert the authority?

Lois G. Williams:

I believe so, Justice Marshall.

Thurgood Marshall:

It’s still true?

Lois G. Williams:

Yes, and I would say that whether… the fact that no removal has been attempted is at least as strong an argument that this… that this person knows to whom he is accountable as it is that he not really accountable to Congress.

It doesn’t really prove anything, that no one has ever tried to remove a Comptroller General, but it may very well demonstrate that everyone understands the relationship that exists.

Warren E. Burger:

We have been told in briefs and in the oral argument that the Comptroller General has described himself in effect as an arm, an agent of the Congress.

Has that been true with all the Comptrollers General since 1921, if you know?

Lois G. Williams:

So far as I know, Your Honor, and no one has pointed to the contrary, although his functions have been variously described, certainly.

In 1921 it was very, very clear that that was the… I invite the Court’s attention to that legislative history.

That was the intent of the Congress, to remove it from the executive branch, to make him independent, yes, but to make him answerable to Congress, and it is very clear that Congress thought about this matter carefully and considered all types of removal.

It passed the statute that exists… existed in spite of a presidential veto, and they didn’t override the veto, but the new version provides for… the one that now exists provides for joint resolution removal.

President Wilson certainly could not have tolerated that, according to his veto message on the first bill.

The one that became law is, has, must be the view of the Congress, and it was very clear that their primary goal was independence from the President.

It is also very clear that independence from the President was achieved by retaining the removal power, and that that was the critical way in which the Congress could guarantee this independence.

It made, it made this officer answerable to itself, and of course, it existed in order to serve those interests.

William H. Rehnquist:

Do you think in that analysis, do you think it’s a more important element of the Comptroller General’s independence from Congress’ point of view that the President cannot remove him than that Congress can remove him?

Lois G. Williams:

I absolutely do, Your Honor, and I think they are opposite sides of the same coin, that independence, total independence from the President, in fact, on the spectrum, would be total dependence on Congress, and that the truest independence, as we have argued in our brief, is somewhere between those branches, where each branch has some influence.

In this situation, the Congress has all the influence, and the president, once appointment is over, remembering he cannot even reappoint this officer, his influence over that officer ends.

And therefore, he cannot… removal is part of the context in which he lives, and the fact that the President has then no control makes it quite a credible statement that the Comptroller General works for the Congress.

John Paul Stevens:

It sounds to me like you’re adopting the Solicitor General’s argument that the officer must be removable by the President in order to perform this function.

Lois G. Williams:

I beg your pardon, Your Honor.

I didn’t–

John Paul Stevens:

It sounds to me as though you have adopted the Solicitor General’s position that this officer must be removable by the President in order for the powers to be delegated to him.

Do you adopt that?

Lois G. Williams:

–Indeed yes, Your Honor.

Indeed yes.

I would dispute… I mean, there may be a large dispute about whether he should be removed at will, but that certainly is not at issue in this case.

Warren E. Burger:

But in any event, he must not be removable by the Congress alone, is that your point?

Lois G. Williams:

Absolutely, Your Honor, absolutely.

I think that the congressional intent throughout, both the original Congress, the ’85 Congress, and, although I haven’t researched this thoroughly… remember, there are a number of intervening Congresses who have given power to this Comptroller General as well, and in order to simply drop the removal provision, we would have to assume that each of those Congresses, in giving power to this officer, regarded the removal as incidental and that the critical question for each Congress was the power given no matter who could remove.

Now, in the few moments I have left, I would like to turn to the delegation argument, just to… before I do that, let me say one other thing about the 1985 act.

In this act, Congress quite naturally turned again to the Comptroller General, again thinking it needed independence, but most emphatically again, what they wanted in this act was independence from the President, as a number of counsel this morning have shown.

Congress said, Mr. President, you get no voice in this matter.

It would not tolerate giving the functions to an executive branch officer, it made that quite clear.

So we do know what the intent of this Congress is.

The intent was to keep it out of the hands of the executive.

So it made clear that OMB could not do this job.

It also carefully excised the only discretion that the President had in the earlier versions of the bill so that now he has no discretion in the implementation of this law.

He makes virtually no choices.

But this is political distrust, this is political distrust, not the institutional concern that we saw in the original act.

The Comptroller General isn’t performing his watchdog function here.

He’s taking over the executive branch function.

He’s doing the President’s job.

He’s administering the law.

Because Congress didn’t trust the President to administer the law, it gave it to the officer it could trust, and we submit that that decision was fatal to the act.

Now, just a few points about the delegation arguments, Your Honor.

Lois G. Williams:

It is important to see precisely which infirmity in this law we complain of when we talk about undue delegation.

The delegate decides whether to cut spending at all.

This is the effect of the decision, whether to cut spending at all across the board, and how much.

This is the heart of the act.

The act further makes those decisions automatic, and it’s the automatic effect, without any approval by elected officials, that make… that creates the problem here.

The forecasting itself is not alone a problem.

And as we have argued, there are differences in kind and degree, but degree is really the central question here, whether Congress has done enough before handing this job off to others.

Did they succeed–

Byron R. White:

Done enough with its legislative task.

Lois G. Williams:

–Yes.

They succeed in avoiding the hard choices–

Byron R. White:

So you are arguing that there’s an undue–

Lois G. Williams:

–Absolutely, absolutely, Your Honor.

That’s our… that was our first argument in our brief–

Byron R. White:

–Yes.

Lois G. Williams:

–This is an alternative ground for upholding the lower court.

Byron R. White:

And so it is either… again, it is either… if it isn’t legislative, it’s executive.

If it isn’t executive, it’s legislative.

Lois G. Williams:

Yes, that’s my argument, Your Honor.

Now, I would like to just spend a moment saying that the Comptroller General’s decisions are obviously–

Warren E. Burger:

I take it there, Ms. Williams, I take it there you are relying on the fact that historically, for 199 years, these functions have been performed by the Congress.

Lois G. Williams:

–To the… yes, absolutely, yes.

Warren E. Burger:

With the cooperation of the President.

Lois G. Williams:

Yes, by statute.

The spending policies and the budget levels of this nation have always been… that has always been accomplished by Congress, and the question is here did they do enough of that to allow them to give the rest to someone else.

And the decisions, though they are not couched as policy decisions, they are certainly not… I don’t suggest that the Comptroller General is deliberately choosing among programs that he would like, but makes a great many decisions.

A policy vacuum is created by this law, and the decisions made by the Comptroller General which are not guided in the slightest by Congress… these decisions are not guided at all… jump into that vacuum.

They fill that policy vacuum.

They become the law.

And what policy does the law establish?

Lois G. Williams:

The law says we’ll reduce the deficit.

Does it tell the Comptroller General when he has these many choices to make whether be should estimate the deficit in a conservative way, in an extravagant way?

Does he decide on the low side or the high side when he’s predicting interest rates?

We know that it isn’t just cynical manipulation that can take place.

It’s honest difference of opinion.

And Mr. Justice Stevens, if they all agree, they can all be wrong, and they could be quite consistently wrong.

And it might be for the reasons that something nobody thought of will happen in the intervening months.

And that happens all the time.

And the difficulty is that there is no policymaker here who is overtly making policy and examining these deficit forecasts.

Thank you, Your Honor.

Warren E. Burger:

Very well.

Mr. Cutler?

Lloyd N. Cutler:

With respect to what the Solicitor General has said about the Comptroller General being an officer of Congress, I do not believe that has been the consistent position of the executive or Congress.

If the Comptroller were a mere officer or agent of Congress, Congress could have appointed him himself… itself.

Congress decided that it had to be an appointment by the President with the advice and consent of the Senate because the Comptroller was to perform some executive or administrative functions.

There would have been no point to President Wilson’s veto, what could he have vetoed, in the Congress reserving to itself the power to remove an officer or agent of the Congress.

Solicitor General Beck argued in the Myers case that the… this very removal provision was unconstitutional because the Solicitor General was an officer of the executive branch.

The Solicitor General?

Lloyd N. Cutler:

The Comptroller General.

We are all making, that mistake, sir.

The present Solicitor General is arguing to you that this removal provision is constitutionally objectionable in its own right.

How could that be so if the Comptroller General were a mere officer or agent of Congress?

In the mid-seventies, Congress considered reserving the appointment of the Comptroller General to itself, and the representative of the Office of Legal Counsel went to Congress and testified you can’t do that.

Congress is… the Comptroller General is performing executive functions, and he must be appointed by the President.

And in 1979, the Office of Legal Counsel published an opinion to the effect that the conflict of interest laws apply to the Comptroller General and the GAO as an independent agency.

In the Buckley case, this Court in a footnote noted that the Comptroller General, despite his appellations, could, as an arm of Congress that occasionally happened, he could perform administrative functions which he was allowed to perform under an earlier version of the Campaign Act, Campaign Financing Act.

And if you will remember, in Springer, which is twice quoted by this Court in Buckley, even if the Comptroller, let us say, were an independent agency within the legislative branch, as you once characterized him in passing, Justice O’Connor, Springer says that an officer appointed by the legislature cannot perform an executive function, but the case might be different if that officer were appointed by the President, by the executive, the President of the United States.

The Solicitor General has made much of the fact that the order, the report the Comptroller issues under the ’85 act is to be binding on the President.

You will recall that in Nixon v. Fitzgerald, the Civil Service Commission had ordered the reinstatement of Mr. Fitzgerald, even though the President himself was involved in removing him from office, and Mr. Fitzgerald brought a lawsuit to enforce his right to reinstatement, and that lawsuit was finally settled by the executive branch, and he was given back his old job.

Moreover, I would submit that if the President has a constitutional objection to issuing the order after the Comptroller General issues his report, he has recourse under the judicial review provisions set forth in Section 274(d)(2) of the act which speaks of the President issuing a different report, order, than the one that is supposedly required by the Comptroller General’s report on the claim or defense that it infringes on his constitutional prerogatives.

Lloyd N. Cutler:

And that issue is then resolved by the courts.

Severance of the removal provision seems to have become a critical issue in the case, and I would submit that Myers is the square precedent.

Myers severed the removal part of a statute relating to the appointment and removal of postmasters.

The President was allowed to go right on appointing the postmasters, and their functions were not changed in any respect.

William H. Rehnquist:

But there’s no doubt that Congress wanted postmasters and that it had no choice but to allow the President to appoint them.

I don’t see that it is quite the square precedent that you say.

Lloyd N. Cutler:

Well, we would submit, Justice Rehnquist, that Congress considered in the debates about the override in 1920 whether if they overrode and then the removal provisions were later held invalid by this Court, would the rest of the statute fall, and the floor leader in the House said he thought not.

He said that it would fall only to the extent that the statute might be held invalid.

In Senator Howard Baker’s brief, he suggested to the Court that this may be the last chance for a statutory solution of this terrible budget deficit problem which is a growing cancer and may soon become inoperable.

It’s an example of how Congress, dealing with a problem that arguably belonged to both branches, chose this, to repeat again this experiment of using the independent officer of the United States.

It is very important in the history of this country and its development of being able to deal with the complexities of modern government that this Court has not struck down the notion of the independent officer duly appointed by the President.

Warren E. Burger:

Thank you, Counsel.

The case is submitted.