Bowsher v. Synar

LOCATION: Congress

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

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

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.


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?

Media for Bowsher v. Synar

Audio Transcription for Oral Argument - April 23, 1986 in Bowsher v. Synar

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--