Bowsher v. Synar

478 U.S. 714

Case Year: 1986

Case Ruling: 7-2, Affirmed

Opinion Justice: Burger

FACTS

President Reagan signed the Balanced Budget and Emergency Deficit Control Act, popularly known as the Gramm-Rudman-Hollings bill, into law December 12, 1985. The legislation attempted to control the federal budget deficit by imposing automatic budget cuts when members of Congress were unable or unwilling to exercise sufficient fiscal restraint. The law established maximum budget deficit levels for each year beginning in 1986. The size of the deficit was to decrease each year until fiscal 1991, when no deficit would be allowed. If the federal budget deficit in any year exceeded the maximum allowed, across-the-board budget cuts would automatically be imposed.

Triggering the cuts involved steps to be taken by several government officials. First, the director of the Office of Management and Budget (OMB) and the director of the Congressional Budget Office (CBO) would independently estimate the projected deficit, with program-by-program calculations. Second, these estimates would be jointly reported to the comptroller general of the United States. Third, the comptroller general would review the reports submitted by OMB and CBO and issue a final report with recommendations. Fourth, the comptroller general would send the report to the president, who would issue an order mandating the automatic budget cuts recommended by the comptroller.

The statute's reliance on the comptroller general for the execution of this law presented a potential constitutional problem. The comptroller general heads the General Accounting Office (GAO), an agency created by Congress in 1921 to provide independent audits of the financial activities of executive agencies. The GAO is located within the legislative branch, and the comptroller general, although appointed by the president, is an employee of Congress, not the White House. Under traditional views of the separation of powers, no legislative officer may exercise executive authority.

Just hours after the bill was signed, Rep. Mike Synar, D-Okla., who had voted against it, filed suit against Comptroller General Charles A. Bowsher to have the law declared unconstitutional. At the same time, the National Treasury Employees Union took legal action to have the statute declared void. A three-judge district court struck down the statutory provisions that permitted an enforcement role for the comptroller general. Bowsher, on behalf of Congress, appealed.

CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT.

The question presented by these appeals is whether the assignment by Congress to the Comptroller General of the United States of certain functions under the Balanced Budget and Emergency Deficit Control Act of 1985 violates the doctrine of separation of powers. . . .

Appellants urge that the Comptroller General performs his duties independently and is not subservient to Congress. We agree with the District Court that this contention does not bear close scrutiny.

The critical factor lies in the provisions of the statute defining the Comptroller General's office relating to removability. Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, and confirmed by the Senate, he is removable only at the initiative of Congress. He may be removed not only by impeachment but also by joint resolution of Congress "at any time" resting on any one of the following bases:

"(i) permanent disability; "(ii) inefficiency; "(iii) neglect of duty; "(iv) malfeasance; or "(v) a felony or conduct involving moral turpitude."

This provision was included, as one Congressman explained in urging passage of the Act, because Congress "felt that [the Comptroller General] should be brought under the sole control of Congress, so that Congress at any moment when it found he was inefficient and was not carrying on the duties of his office as he should and as the Congress expected, could remove him without the long, tedious process of a trial by impeachment.". . .

It is clear that Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. The Reorganization Acts of 1945 and 1949, for example, both stated that the Comptroller General and the GAO are "a part of the legislative branch of the Government." Similarly, in the Accounting and Auditing Act of 1950, Congress required the Comptroller General to conduct audits "as an agent of the Congress."

Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. In one of the early Annual Reports of Comptroller General, the official seal of his office was described as reflecting

"the independence of judgment to be exercised by the General Accounting Office, subject to the control of the legislative branch. . . . The combination represents an agency of the Congress independent of other authority auditing and checking the expenditures of the Government as required by law and subjecting any questions arising in that connection to quasi-judicial determination."

Later, Comptroller General Warren, who had been a Member of Congress for 15 years before being appointed Comptroller General, testified: "During most of my public life, . . . I have been a member of the legislative branch. Even now, although heading a great agency, it is an agency of the Congress, and I am an agent of the Congress." (Emphasis added.) And, in one conflict during Comptroller General McCarl's tenure, he asserted his independence of the Executive Branch, stating:

"Congress . . . is . . . the only authority to which there lies an appeal from the decision of this office. . . ."

Against this background, we see no escape from the conclusion that, because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers. The remaining question is whether the Comptroller General has been assigned such powers in the Balanced Budget and Emergency Deficit Control Act of 1985.

The primary responsibility of the Comptroller General under the instant Act is the preparation of a "report." This report must contain detailed estimates of projected federal revenues and expenditures. The report must also specify the reductions, if any, necessary to reduce the deficit to the target for the appropriate fiscal year. The reductions must be set forth on a program-by-program basis.

In preparing the report, the Comptroller General is to have "due regard" for the estimates and reductions set forth in a joint report submitted to him by the Director of CBO and the Director of OMB, the President's fiscal and budgetary adviser. However, the Act plainly contemplates that the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates. The Act also provides that the Comptroller General's report "shall explain fully any differences between the contents of such report and the report of the Directors."

Appellants suggest that the duties assigned to the Comptroller General in the Act are essentially ministerial and mechanical so that their performance does not constitute "execution of the law" in a meaningful sense. On the contrary, we view these functions as plainly entailing execution of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law. Under §251, the Comptroller General must exercise judgment concerning facts that affect the application of the Act. He must also interpret the provisions of the Act to determine precisely what budgetary calculations are required. Decisions of that kind are typically made by officers charged with executing a statute.

The executive nature of the Comptroller General's functions under the Act is revealed in §252(a)(3) which gives the Comptroller General the ultimate authority to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation (with exceptions not relevant to the constitutional issues presented), the directive of the Comptroller General as to the budget reductions:

"The [Presidential] order must provide for reductions in the manner specified in section 251(a)(3), must incorporate the provisions of the [Comptroller General's] report submitted under section 251(b), and must be consistent with such report in all respects.The President may not modify or recalculate any of the estimates, determinations, specifications, bases, amounts, or percentages set forth in the report submitted under section 251(b) in determining the reductions to be specified in the order with respect to programs, projects, and activities, or with respect to budget activities, within an account. . . ." (Emphasis added.)

Congress of course initially determined the content of the Balanced Budget and Emergency Deficit Control Act; and undoubtedly the content of the Act determines the nature of the executive duty. However, as [INS v.] Chadha [1983] makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly--by passing new legislation. By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function. The Constitution does not permit such intrusion.

Affirmed.

JUSTICE WHITE, DISSENTING.

The Court, acting in the name of separation of powers, takes upon itself to strike down the Gramm-Rudman-Hollings Act, one of the most novel and far-reaching legislative responses to a national crisis since the New Deal. The basis of the Court's action is a solitary provision of another statute that was passed over 60 years ago and has lain dormant since that time. I cannot concur in the Court's action. Like the Court, I will not purport to speak to the wisdom of the policies incorporated in the legislation the Court invalidates; that is a matter for the Congress and the Executive, both of which expressed their assent to the statute barely half a year ago. I will, however, address the wisdom of the Court's willingness to interpose its distressingly formalistic view of separation of powers as a bar to the attainment of governmental objectives through the means chosen by the Congress and the President in the legislative process established by the Constitution. Twice in the past four years I have expressed my view that the Court's recent efforts to police the separation of powers have rested on untenable constitutional propositions leading to regrettable results. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1982) (WHITE, J., Dissenting); INS v. Chadha (1983) (WHITE, J., Dissenting). Today's result is even more misguided. . . . [T]he Court's decision rests on a feature of the legislative scheme that is of minimal practical significance and that presents no substantial threat to the basic scheme of separation of powers. In attaching dispositive significance to what should be regarded as a triviality, the Court neglects what has in the past been recognized as a fundamental principle governing consideration of disputes over separation of powers:

"The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." Youngstown Sheet & Tube Co. v. Sawyer (1952) (Jackson, J., concurring).