SECOND HEARING BEFORE THE SUBCOMMITTEE ON LEGISLATION AND NATIONAL SECURITY, HOUSE COMMITTEE ON GOVERNMENT OPERATIONS, ON THE CONSTITUTIONALITY OF THE GENERAL ACCOUNTING OFFICES S (GAO) BID PROTEST FUNCTION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87M01152R000400570007-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 58
• Document Creation Date: December 22, 2016
• Document Release Date: November 4, 2009
• Sequence Number: 7
• Publication Date: March 7, 1985
• Content Type: MEMO

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6 RC9 .0 P CITY
OLL 85-0687/1
7 March 1985
SUBJECT: Second Hearing Before the Subcommittee on
Legislation and National Security, House
Committee on Government Operations,-on the
Constitutionality of the General Accounting
Office's (GAO) Bid Protest Function.
1. The Subcommittee convened at 9:30 a.m. on 7 March
1985, in Room 2154 Rayburn, continuing its hearings on the
above described subject. (MFR dated 28 February 1985.) The
following Members were present:
Jack Brooks, Chairman (D., TX)
Frank Horton, Ranking Minority Member (R., NY)
David S. Monson (R., UT)
Joseph J. DioGuardi (R., NY)
H. James Saxton (R., NJ)
2. A copy of the Witness List is attached, along with
copies of the prepared statements of the witnesses, except
for the last named, who had none prepared.
3. Mr. David Stockman, Director, Office of Management
and Budget, and Mr. D. Lowell Jensen, the Acting Deputy
Attorney General of the Justice Department, gave support to
the position taken by the Executive Branch, i.e., the
Comptroller General, General Accounting Office, is an arm of
the Legislative Branch and cannot bind the Executive Branch;
and that the President has the right not to implement
provisions of a law he deems unconstitutional. Although in
Mr. Stockman's case, it was accepted that he was following up
on the legal opinion received from Justice.
4. The General Counsel and Deputy General Counsel,
Office of the Clerk, House of Representatives, (along with
the last witness) disputed these contentions, saying the
Judiciary has the responsibility and jurisdiction for
resolving the issues, not the Executive Branch.
5. Both the Chairman and the Ranking Minority Member
asked Mr. Jensen to submit supporting memoranda on:
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(a) the authority for the Attorney General
to declare provisions of any law unconstitu-
tional before a court of law has rendered a
decision; and
(b) why the Comptroller General may not bind
the Executive Branch.
6. The Subcommittee adjourned the hearing at about
12:00 Noon.
Liaison Division
Office of Legislative Liaison
Acting ief, Liais n Division, OLL
Distribution:
#..Original - OLL Record w/atts
1 - OLL Chrono w/o atts
1 - OGC /atts
1 - DDA w/atts
1 - OLL LD w o atts
LD/OLL (28 March 1985)
STAT
STAT
STAT
STAT
STAT
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LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE
Continuation of Hearings on the Constitutionality
of the GAO's Bid Protest Function
Thursday, March 7, 1985
9:30 a.m.
2154 Rayburn House Office Building
SCHEDULE OF WITNESSES
The Honorable David A. Stockman
Director
Office of Management and Budget
Steven R.. Ross, Esquire
General Counsel
Office of the Clerk
House of Representatives
Accompanied by: Charles Tiefer, Esquire
Deputy General Counsel
The Honorable-D. Lowell Jensen
Acting Deputy Attorney General
Department of Justice
Lawrence R. Velvel, Esquire
Attorney at Law
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TESTIMONY
OF DAVID A. STOCKMAN
FiI~9Opy
'P, "
Do Not Remove
DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET
BEFORE THE LEGISLATION AND NATIONAL SECURITY
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
GOVERNMENT OPERATIONS
MARCH 7, 1985
I appear today to discuss the role of the Office of
Management and Budget in the implementation of certain provisions
of the Competition in Contracting Act (enacted as part of the
Deficit Reduction Act of 1984, Public Law 98-369 (DEFRA)) that
-the Department: of Justice has concluded are unconstitutional.
I would like to emphasize that th'e focus of my testimony'
here is neither the merits of the Competition in Contracting Act
(CICA) and its bid protest procedures nor the Comptroller
General's role in the bid protest area. The Administration and
this office strongly support the principles of full and open
competition implemented in the Act. In fact, CICA adopts the
competitive procedures set forth in our proposal for a Uniform
Federal Procurement System, which was submitted to Congress in
February of 1982. We also believe the Comptroller General's
advisory role in resolving bid protests is extremely valuable.
Instead my testimony addresses only a narrow question regarding
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implementing certain provisions of the?Act that the
Administration, as it has advised Congress, both in the
President's signing statement on DEFRA and in the Department of
Justice's views on H.R. 5184, believes to be unconstitutional.
As part of the Competition in Contracting Act, Congress
passed two provisions which purported to permit the Comptroller
General the authority to bind the Executive Branch. These are
the so called stay provisions both pre- and post-award and the
awarding of fees. Before the bill was passed, the Department of
Justice advised Congress that it believed those provisions to be
unconstitutional because they would permit an official of the
Legislative Branch to exercise authority which, under the
Constitution, can be exercised only by an official within the
Executive Branch.
Despite the Department's objections, transmitted to Congress
in April 1984, the provisions ultimately were adopted as part of
the Act. Thus, in signing the Deficit Reduction Act, the
President "vigorously" objected to these provisions and requested
the Department of Justice to inform Executive branch agencies how
they might comply with the Act in a manner consistent with the
Constitution. See 20 Weekly Comp. Pres. Doc. 1037 (July 18:
1984).
In response to the President's request, on October 17, 1984,
the Department of Justice issued a memorandum which concluded
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that the two provisions purporting to vest the Comptroller
General with authority to bind the Executive Branch were
unconstitutional and recommended that these provisions not be
enforced by the Executive Branch. The Attorney General directed
that this memorandum be distributed to Executive agencies to
provide them with the guidance requested by the President. The
Attorney General reiterated that position on November 21, 1984 in
letters sent to the Speaker of the House and the President of the
Senate to inform Congress, as required by statute, of the
Department's decision not to enforce these provisions. The
Attorney General noted that his decision to advise agencies not
to execute the unconstitutional provisions would best assure that
these issues ultimately would be resolved by the courts.
The Attorney General also sent a letter to me, dated
November 21, 1984, which requested my assistance in ensuring
compliance by all Executive Branch agencies with the legal advice
provided by the Department of Justice concerning the Act. Upon
the advice of my General Counsel as to my responsibility to
follow the Attorney General's opinion, on December 17, 1984, I
issued a Bulletin to the heads of Executive departments and
agencies setting forth procedures governing implementation of the
Act and advising Executive agencies of their responsibility to
conduct their contracting activities in conformance with the
Attorney General's legal advice. The Bulletin also established
reporting procedures to ensure that the Department of Justice was
promptly informed of the filing of any litigation challenging its
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opinion.
In conclusion, I wish to note that the Attorney General's
legal advice is binding upon all Executive departments and
agencies, which are required to conform their actions to his
opinions. OMB, as part of its responsibility to ensure effective
administration of Executive Branch activities, routinely issues
bulletins to the heads of departments communicating information
and instructions on how to respond to various problems that
require coordinated responses by the agencies. For example, OMB
acted similarly in advising all agencies to notify and coordinate
with OMB on matters involving the separation of powers issues
raised by the Supreme Court's decision in INS v. Chadha. In
short, the actions of OMB in this matter have been ministerial,
designed only, to assure implementation and coordination of the
legal conclusions of the Attorney General and the Department of
Justice.
The Attorney General complied with the statute that
establishes procedures for notification of Congress in
circumstances in which he concludes that he cannot defend the
constitutionality of a statute. Furthermore, as the Attorney
General has stated, the procedures he followed are intended to
provide for a quick judicial resolution of this controversy. I
understand that one case involving the disputed sections is
pending and there is, accordingly, every reason to believe that
such proceedings will provide an appropriate end to this dispute.
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Opening Statement of Congressman Jack Brooks
Continuation of Hearings on the Constitutionality of
the GAO's Bid Protest Function
Legislation and National Security Subcommittee
Thursday, March 7, 1985
THE SUBCOMMITTEE WILL COME TO ORDER. THESE HEARINGS WERE INITIALLY
CALLED TO REVIEW THE CHARGES MADE BY THE EXECUTIVE BRANCH THAT KEY
PROVISIONS OF THE COMPETITION IN CONTRACTING ACT ARE UNCONSTITUTIONAL.
HOWEVER, IT HAS BECOME INCREASINGLY CLEAR THAT THE ISSUES RAISED
ABOUT THE COMPETITION ACT ARE GREATLY OVERSHADOWED BY A FAR MORE
SIGNIFICANT ISSUE. THE ULTIMATE QUESTION WHICH THE SUBCOMMITTEE
MUST ADDRESS IN THIS HEARING IS: CAN THE PRESIDENT OF THE UNITED
STATES UNILATERALLY DECLARE A PORTION OF A PUBLIC LAW TO BE
UNCONSTITUTIONAL AND THEN REFUSE TO ENFORCE IT? THE ANSWER TO THIS
QUESTION HAS SERIOUS CONSEQUENCES FOR THE FUTURE OF OUR CONSTITUTIONAL
FORM OF GOVERNMENT AND THE BALANCE OF POWER BETWEEN ITS THREE BRANCHES.
FOR THOSE OF YOU WHO THINK THAT THIS IS AN ESOTERIC SUBJECT,
LET ME GET RIGHT TO THE POINT. UNLESS THE BALANCE OF POWER BETWEEN
THE THREE BRANCHES OF GOVERNMENT REMAINS RELATIVELY EQUAL, WE ARE
GOING TO END UP WITH A MONARCHY OR A DICTATORSHIP. IT IS AS SIMPLE
AS THAT.
IN MY OPINION, THE ACTIONS OF THE PRESIDENT AND HIS AGENTS ARE
UNPRECEDENTED IN THE HISTORY OF OUR GOVERNMENT. UPON SIGNING THE
COMPETITION ACT INTO LAW, THE PRESIDENT DECLARED KEY PROVISIONS OF
THE ACT TO BE UNCONSTITUTIONAL AND INSTRUCTED THE ATTORNEY GENERAL
TO INFORM FEDERAL AGENCIES AS TO HOW TO IMPLEMENT IT. OMB DIRECTOR
STOCKMAN, ARMED WITH THE ATTORNEY GENERAL'S OPINION, ORDERED FEDERAL
OFFICIALS TO WILLFULLY VIOLATE THE LAW IN A DIRECTIVE HE ISSUED ON
DECEMBER 17, 1984. HE DIRECTED, AMONG OTHER THINGS, THAT:
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"AGENCIES SHALL TAKE NO ACTION, INCLUDING THE ISSUANCE
OF REGULATIONS, BASED UPON THE INVALID PROVISIONS.
"WITH RESPECT TO THE 'STAY' PROVISION, AGENCIES SHALL
PROCEED WITH THE PROCUREMENT PROCESS AS THOUGH NO SUCH
PROVISION WERE CONTAINED IN THE ACT."
"WITH RESPECT TO THE DAMAGES PROVISION OF THE ACT,
AGENCIES SHALL NOT COMPLY WITH DECLARATIONS OF AWARDS OF
COSTS, INCLUDING ATTORNEYS' FEES OR BID PREPARATION COSTS,
MADE BY THE COMPTROLLER GENERAL"
MR. STOCKMAN HAS BEEN ASKED TO APPEAR BEFORE THE SUBCOMMITTEE
TODAY TO EXPLAIN HIS ACTIONS.
WE WILL NOW PROCEED WITH THE HEARING.
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STATEMENT BY THE HONORABLE FRANK HORTON
MARCH 7, 1985
HEARING ON THE CONSTITUTIONALITY OF GAO's BID PROTEST FUNCTION
THANK YOU, MR- CHAIRMAN-
AM VERY PLEASED TO HAVE THESE DISTINGUISHED WITNESSES HERE
TODAY TO HELP US DIRECT NECESSARY ATTENTION TO A VERY GREAT CONCERN
OF MINE: NON-COMPLIANCE WITH THE BID PROTEST PROVISIONS OF THE
COMPETITION IN CONTRACTING ACT-
THE NEED FOR THESE HEARINGS ARISES FROM THE ACTIONS OF OMB AND
THE JUSTICE DEPARTMENT, FROM WHOM WE WILL HEAR TODAY- I UNDERSTAND
THE VIEWPOINT THAT JUSTICE HAS EXPRESSED WITH REGARD TO THE SEPARA-
TION OF POWERS IN CONNECTION WITH THE COMPETITION IN CONTRACTING ACT-
OBVIOUSLY, I DISAGREE WITH THAT VIEW; AND THE OVERWHELMING PREPONDE-
RANCE OF TESTIMONY PRESENTED TO US LAST WEEK CERTAINLY REINFORCED MY
CONVICTION. NEVERTHELESS, I AM NOT THE FINAL ARBITER OF THAT. BUT
NEITHER IS OMB, THE JUSTICE DEPARTMENT, OR, FOR THAT MATTER, THE
PRESIDENT OF THE UNITED STATES. THAT IS THE JOB OF THE COURTS-
' SO THE ISSUE THAT CONFRONTS US TODAY IS INDEED THE SEPARATION OF
POWERS, BUT--AS I SEE IT--A MATTER OF EXECUTIVE BRANCH INFRINGEMENT-
FULL IMPLEMENTATION OF THE COMPETITION IN CONTRACTING ACT, OF COURSE,
IS OUR IMMEDIATE OBJECTIVE. BUT THE UNILATERAL DECLARATION BY THE
EXECUTIVE BRANCH THAT PROVISIONS OF THE ACT ARE UNCONSTITUTIONAL
--DESPITE THE PRESIDENT'S SIGNATURE-- IS BLOCKING IMPLEMENTATION- I
FIND NO AUTHORITY FOR THE DIRECTOR OF OMB TO DIRECT FEDERAL AGENCIES
TO DISOBEY THE LAW, OR FOR THE ATTORNEY GENERAL TO ADVISE THAT-
ACCORDINGLY, I HOPE OUR DISTINGUISHED WITNESSES WILL RECONSIDER THIS
MATTER AND JOIN US IN ASSURING FULL AND OPEN COMPETITION IN
GOVERNMENT PROCUREMENT-
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON. D.C. 20503
December 17, 1984
BULLETIN NO. 85"8
TO THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: Procedures Governing Implementation of Certain
Unconstitutional Provisions of the Competition in
Contracting Act of 1984
1. Summary. The Department of Justice has concluded that two
provisions of the Competition in Contracting Act of 1984 are
---unconstitutional because they purport to authorize the
Comptroller General to exercise Executive authority in violation
the principle of Separation of Powers. Pending judicial
resolution of the matter, agencies which exercise procurement
authority will hereafter be required to conduct their contracting
authority in conformance with the Department's legal advice.
2. Background. On July 18, 1984, the President signed the.
---.---Competition in Contracting Act, enacted as part of the Deficit
_.Reduction Act of. 1984, Public Law No. 98-369, 98 Stat. 49.4.. At
~__ the time he signed the bill, the President issued a statement
--questioning the constitutionality of several provisions of the
-. ?pct which ostensibly authorized the Comptroller General to bind
-Executive Branch agencies concerning certain aspects of the bid
-- - protest process. The President further requested that the
Attorney General advise Executive agencies how to comply with-the
________ Act in - a manner consistent with the Constitution.
On October 17, 1984, the Department responded to the President's
request by issuing an opinion which concluded that several
---provisions added by Section 2741 of the Act were
unconstitutional:
o 31 U.S.C. 3553(c) and (d), which require a procuring agency
to suspend or 'stay' 'a procurement if a bid protest is
timely filed and purport to authorize the Comptroller
General to lift this 'stay' of the procurement by issuing
his decision on the bid protest.
o 31 U.S.C. 3554(c), which purports to-authorize the
Comptroller General to make binding awards of attorneys'
fees and bid preparation costs to successful bid protestors.
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that the Comptroller General, as a
~,~e DepaZ ant concoffluded icial, could not exercise theses x recently
gislative Branch 462 U.S. 919
uthorities consistent witintiNS CoV. Ch -taaha,n,
Tanch a u Supreme Court that these three
reted by the.s r
----zte P The Department therefore concluded of the
stricken from the Act. (A co
1983) ?
- S eaker of the House and the Vice
actions must be
_---?partment's letters . the P inion on the subje
-esident, as well. as' its formal op
_-tached to this Bulletin.) of the remainder of
ot authority to the
uestion the ?iof
---he Department did n q its grant Department
including specificalw ly bid Protests- The D--- a Act, ro erly continue to
mptroller General to troller General coulda protests, but that
---~_Oncluded that in ons with respect to
--review and issue e Op regarded as advisory only and not binding
-here decisions must be r
n the Executive Branch. les ar.e.to be
The following princip
3. Action Re uirements?encies with respect to the
..observed by Executive ag
unconstitutional provisions of the Act:
including the :issuance of
o Agencies shall take nonathe?invalid provisions.
regulations, based up proceed
agencies shall p
'stay provision provision
o with respect to the h no such urement process as thou9 rovision, of
with the proc pursuant to the pr may
were contained in the Act. Regulations, the agency
the Federal Acquisition ending the
to stay procurements p stay
Of such a
voluntarily agree but the grant of such a
resolution of bid protests , and may not be
must be based upon other validoavisionstof the Act.
based upon the invalid stay p
resoof reports
1 with the provisions of 31 II?S?C-
o Agencies shall comp y
concerning
3553 General on protested
agencies
o With respect to the damages provision of the Act, amade by
comply with declarations of r ation - costs, cots?
shall not attorneys' fees or bid prPa
including
the Comptroller General. a concerning
comply with 31 D ?S ?Co1j 54 General on
submission of reports Agencies shall rts to the Comet=
unaccommodated recommendations.
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4.. Report Requirements.
o Each agency should report to its OMB budget examiner and the
Office of Legal Counsel any declarations of awards issued by
the Comptroller General.
o if the agency is sued by any bid protestor or other person
who challenges its failure to comply with the
unconstitutional provisions of the Act, the agency shall
immediately notify the Department of Justice.
5. General Provision. Questions concerning these implementation
procedures should be directed to the Office of Federal
Procurement Policy through your OMB budget examiner. Any
questions concerning the interpretation of the unconstitutional
provisions should be directed to the Office of Legal Counsel of
the Department of Justice.
6. Sunset Date. This bulletin will remain in effect until
superseded or rescinded.
David A. Stockman
Director
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slmft 91"
wke *I !fie clah
.$. a of sentes
. 20515
STATEMENT ON BEHALF OF THE OFFICE
OF GENERAL COUNSEL TO THE CLERK
OF THE HOUSE OF REPRESENTATIVES
REGARDING
THE EXECUTIVE BRANCH'S DECLARATION
THAT THE COMPETITION IN CONTRACTING ACT
IS UNCONSTITUTIONAL
Chairman and Members of the Committee, we -- Steven R.
Ross, General Counsel to the Clerk of the House of
Representatives, and Charles Tiefer, Deputy General Counsel --
are here today on invitation of the Committee to discuss an
unprecedented and dangerous step by the Executive Branch in
response to the Competition in Contracting Act ("CICA"). The
Office of Management and Budget, in issuing its directive of
December 17, 1984, has commanded all federal contracting
officers, handling well over$ 150 billion a year in contracts,
not to obey a duly enacted Act of Congress designed to encourage
competition in procurement.
OMB's action flatly violates the express instruction of the
Constitution that the President shall "take care that the Laws be
faithfully executed," U.S. Const., art. II, ? 3. It represents
an assumption by OMB and by the Department of Justice, which
advised OMB to take this action, of prerogatives that properly
belong where they have reposed for two centuries -- solely in the
hands of an independent Judiciary. In essence, it constitutes
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General Counsel to the Clerk
of the House
Testimony of March 7, 1985
Page 2
the assertion of a new power of Executive supremacy, which this
Committee need not, and should not, accept.
On Monday, March 4, 1985, the Department of Justice followed
up that OMB directive by attacking the constitutionality of the
CICA in its brief filed in a lawsuit brought by a government
contractor in federal court in California)'. Yesterday, on
Wednesday, March 6, 1985, the Speaker and Bipartisan Leadership
Group of the House of Representatives, who we represent in
litigation, intervened in that lawsuit to provide an official
defense of the act's constitutionality.?/
We believe that under the applicable Supreme Court
precedents the challenged Act of Congress is clearly
constitutional. We have addressed that in the fifty-page brief,
with exhibits, which we filed yesterday in that case. We will
present our views to the Court in a hearing in federal court in
Los Angeles on Monday, March 11, 1985.
However, the real issue before this Committee today is not
the constitutionality of CICA.3/ If the Department of Justice
J Lear Siegler Inc., Energy Products Division v. John Lehman,
Secretary of the Navy, et al., No. 85-1125 (C.D. Cal.).
2/ The Bipartisan Leadership Group consists of the Majority
Leader and Majority Whip, the Minority Leader and Minority Whip,
and for this lawsuit, Chairman Brooks and Ranking Minority Member
Horton.
(footnote continued)
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General Counsel to the Clerk
of the House
Testimony of March 7, 1985
Page 3
had simply awaited the filing of a proper case, presented its
views in court regarding that Act, and awaited the ruling of the
court, we would probably not be here testifying. The real issue
is that the D paxtmant a?--aus a has gone beyond merely
presenting its views in court. It has now taken on unprecedented
and unconstitutional powers of Executive supremacy, in presuming
to decide the issue in advance of litigation -- and to instruct
all executive officials not to obey the law. The real issue for
this Committee is the power assumed by OMB in issuing its
nationwide directive of December 17, 1984, instructing the
contracting officers of the federal government not to obey a duly
enacted Act of Congress.
The Events Which Led to this
Assertion of Novel Power
On May 9, 1984, the House Committee on Government Operations
As appendices to this testimony, we are attaching a copy of
our brief. Since in many respects the Justice Department's
attack on the constitutionality of CICA represents an attack on
the whole concept of having an independent General Accounting
Office as a check on waste and fraud in the government, we are
also attaching a copy of.a survey of the practices of the fifty
states by the American Law Division of the Library of Congress.
That survey shows that "every state has made some provision for
an auditor or controller," whose duties are typically akin to the
work of the federal General Accounting Office.
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General Counsel to the Clerk
of the House
Testimony of March 7, 1985
Page 4
reported the Competition in Contract Act of 1985, H.R. 5184, 98th
Cong., 2d Sess. In past years, procuring agencies had failed
miserably to procure the efficient and money-saving way, through
competition. In 1983, for example, a mere one-third of the total
procurement had been done competitively -- $ 54 billion of
competitive procurement out of $ 168 billion of total
procurement. The rest of procurement was done noncompetitively,
such as by sole-source purchases, often at inflated prices.4'1
CICA imposed a series of requirements on federal procuring
agencies to increase the amount of procurement done
competitively, such as requirements that they await GAO scrutiny
before making disputed contract awards. The statute was
obviously constitutional,.as it just provided as a standard
matter the kind of stay needed to avoid agency evasion of GAO
j The ultimate goal was to prevent such situations as the spare
parts scandals of last year, in which this Committee found that
the Air Force was at one time considering buying an alien wrench
from a largedefense contractor for about $ 9,000, although its
original cost from the actual manufacturer was eight cents.
One of this act's four main approaches was to strengthen the
General Accounting office's bid protest system, as an independent
and expert tribunal for resolving protests by potential
government contractors who had been excluded from lawful
competition. A much-complained about method for procurement
officers to avoid GAO scrutiny had been for them to award the
contract while GAO was deciding the protest, thereby presenting
the GAO with a fait accompli about which there was little to be
done. The Act sought to cure that by a stay provision that
prevents procurement officers from awarding contracts while the
protest is pending before GAO. Similar stays had been ordered
often by the courts precisely to prevent such fait accomplis; the
act provided for such stays on a regular basis.
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General Counsel to the Clerk
of the House
Testimony of March 7, 1985
Page 5
decisions which the courts had granted routinely for fourteen
years.
Nevertheless, President Reagan, in signing the Deficit
Reduction Act on July 18, declared certain provisions dealing
with GAO's strengthened role to be unconstitutional. The
Department of Justice dutifully wrote opinions declaring that the
act was unconstitutional. Although the act had been passed with
overwhelming bipartisan support, and although counsel for the
Clerk of the House, the Senate, and General Accounting office
prepared careful opinions explaining the constitutionality of the
statute, the Department of Justice refused even to admit that
there were arguments in support of the statute.
Instead, Attorney General William French Smith wrote the
Speaker of the House on November 21, 1984 that,.in effect, there
were no reasonable arguments to be made in defense of the
statute. Attorney General Smith also pronounced that no private
contractor whose contract had been withheld under the law could
challenge it. Accordingly, he indicated that all federal
contracting officials would be directed to disobey the statute.
He said that such wholesale disobedience to the law "will best
assure a rapid and definitive judicial resolution of these
constitutional issues."
On December 17, 1984 the office and Management and Budget
implemented this pronouncement, with a directive to the heads of
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General Counsel to the Clerk
of the House
Testimony of March 7, 1985
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all executive departments and agencies. It imposed the "Action
Requirements" that "Agencies shall take no action ... based on
the [challenged] provisions."
The Constitution Does not Allow
Executive officials to take on the Judicial
Prerogative of Striking Down Acts of Congress
Under Marbury v. Madison, 5 U.S. (1. Cranch) 137, 177
(1803), "[i]t is emphatically the province and duty of the
judicial department to say what the law is." This means
that, in an appropriate case, the Judiciary can overcome the
presumption of constitutionality applicable to an Act of
Congress and decide that it is unconstitutional.
However, Marbury v. Madison did not say that it was "the
province and duty of the Executive department to say what the
law is." It has been one of the bedrock principles of our
system that only the Judicial department has that power. No
federal official -- not the President, nor any subordinate --
has it.
Yet now, the Justice Department has begun to claim that
power. The Justice Department has begun arguing that "in the
case of a conflict between the Constitution and a statute"--
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meaning, when the Justice Department decides there is a
conflict" -- that "the President's duty faithfully to execute
the laws requires him not to observe a statute...." In other
words, now, when the President does not want to observe an
inconvenient statute, all he need do is get a supportive
opinion from his Attorney General, and so long as he can get
such an opinion, he need not "observe [the] statute."
This novel proposition equates the powers of mere
executive officials, with those of the Judiciary. It would
make hash of the fundamental Rule of Law that binds executive
officials to obey duly enacted statutes until the Judiciary
says otherwise. As the Supreme Court has explained:
No man in this country is so high that he is above
the law. No officer of the law may set that law
at defiance, with impunity. All the officers of
the Government, from the highest to the lowest,
are creatures of the law and are bound to obey it.
United States v. Lee, 100 U.S. 196, 220 (1882).
The rule that no executive official can decide for
himself what laws he is bound to obey, but must await
decisions of the Judiciary and until then must obey the laws,
has deep roots in our constitutional history. During the
reign of absolute British monarchs, the notion that the
Executive -- i.e., the King -- could decide for himself,
without a decision of the courts, which laws should be
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obeyed, was put to the test. After the Restoration, King
James II attempted to claim such authority, but the English
people would no longer tolerate such a claim, and their
judicial system rejected it in the historic Seven Bishops
Case of 1688
Shortly thereafter, James II was forced into exile in
the Glorious Revolution of 1689, and the English Bill of
Rights was enacted. The first article of that historic
charter of freedom declared "That the pretended power of
Suspending of Laws, or the Execution of Laws by Regal
Authority, without Consent of Parliament is Illegal.?6/
Scholars have concluded that the "faithful execution" clause
of our Constitution is a mirror of.the English Bill of
Rights' "abolition of the suspending power"2/, that is, the
abolition of what the English Bill of Rights had called "the
pretended [Royal] power of Suspending ... the Execution of'
Laws."
/12 How. St. Tr. 183, 377 (1688). In that case, English bishops
who rejected King James II's claim of authority were tried for
seditious libel. Two Judges of the King's Bench rejected the
King's claim, and the jury so found, acquitting the defendants.
6/W. & M., Sess. 2, c. 2 (1689).
7/ Reinstein, An Early View of Executive Powers and Privileges:
Trial of Smith and Ogden, 2 Hastings Con L. Quart. 309, 321
(1975); see Stewart, The Trial of the Seven Bishops, Cal. St.
Bar. J. Feb. 1980, at 70 (account of case).
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In fact, the Constitutional Convention in 1787 expressly
rejected the attempt to re-introduce some power for the
President to decide to suspend the execution of laws
Instead, the Framers imposed on the President the duty "to
take care that the Laws be faithfully executed."
There is not a shred of support in the records of the
Constitutional Convention, or the history we have described,
to support the Justice Department's argument, that the
"faithful execution" clause was intended to allow the
President the have the power of the Judiciary -- to decide
for himself whether he considered laws unconstitutional, and
if he felt so, to refuse to obey them. That view of
Executive supremacy over the laws runs contrary both to the
historic derivation of the "faithful execution" clause, and
to the Constitutional Convention's stated decisions.
If the Framers had intended to give the President any
such awesome power of deciding the constitutionality of laws
as they gave to the Judiciary, there surely would be a clear
record of it. Yet Alexander Hamilton, who discussed in
A proposal was made in the constitutional convention "that
the national executive have a power to suspend any legislative
act ....." The Convention rejected the proposal, after Elbridge
Gerry observed "that the power of suspending might do all the
mischief dreaded from the nevative of useful laws [i.e., the
President's veto], without answering the salutary purpose of
checking unjust or unwise ones." IV J. Elliott, Debates in the
Federal Convention (2d ed. 1836).
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detail the authority of the Judiciary to decide the
constitutionality of laws, provided no such discussion of the
supposedly equivalent Presidential power.
Any possible doubt about the matter, if there could be
any, was resolved in the historic case of Kendall v. United
States, 37 U.S. 912 Pet.) 524 (1838). There, a Cabinet
Member claimed that because he was subject to the President,
who, in turn, supposedly derived a vast power from the
"faithful execution" clause, he was not bound by the laws.
The Supreme Court utterly rejected any such argument of
Executive supremacy. The Supreme Court said that "to
contend, that the obligation imposed on the President to see
the laws faithfully executed, implies a power to forbid their
execution, is a novel construction of the constitution, and
entirely inadmissible."9/ That Court harkened directly back
to the classic language of the English Bill of Rights, and
the Framers in the Constitutional Convention, in rejecting
Executive power to "forbid [the] execution" of the laws.
In rejecting the Executive's argument, the Court
explained that the effect of such power would be the
vesting in the President [of] a dispensing power,
which has no countenance for its support, in any
9/38 U.S. at 613.
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part of the constitution; [such an argument is]
asserting a principle, which, if carried out in
its results, to all cases falling within it, would
be clothing the President with a power entirely to
control the legislation of Congress, and paralyze
the administration of justice.
38 U.S. at 613 (emphasis supplied).10/
OMB's Directive Is a Nationwide, Government-Wide
Instruction Not to Obey the Law -- not a "Test Case"
In most situations, the proper course for the President,
or an executive official, to obtain from the Judiciary a
decision on the constitutionality of a law, is to await the
action of an aggrieved individual to file a proper lawsuit
against the government or otherwise, and-for the Department
of Justice to defend the Act of Congress. Then, if the
10 A similar early ruling in United States v. Smith and Ogden, 27
F. Cas. 1192, 1230 (C.C.D.N.Y. 1806), proclaimed:
The President of the United States cannot control
the statute, nor dispense with its execution, and
still less can he authorize a person to do what
the law forbids. If he could, it would render the
execution of trhe lawsdependent on his will and
pleasure; which is a doctrine that ... will not
meet with any supporters in our government.
The court summed up:
In this particular, the law is paramount. Who has
dominion over it? None but the legislature....
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Judiciary decides against the defense made of the Act, and
strikes the Act down, the presumption of constitutionality
has ended, and the official is no longer bound by the law.
On rare occasions, where the President believes that the
Act of Congress invades his constitutional powers, the
Department of Justice has wished not to defend the Act in the
views it expresses to the courts, but to attack the Act. We
have grave doubts about the way the Justice Department's
pursuit of such a course.UJ yet even on those rare
occasions, the context has usually not been one of
disobedience to the Act of Congress. Rather, the sound
course has been for the President or executive official to
obey the law, and to present his views to the Judiciary.
Then, if -- and only if -- the Judiciary pierces the
presumption of constitutionality which binds the executive
official, and declares the law unconstitutional, is the
President then freed from the binding nature of the law.
11 We have considerable doubt as to the wisdom and propriety of
such presentations of views. Among other reasons, it is too easy
for the Executive, as discussed below, to seek to aggrandize its
powers; to give too little heed to presumption of
constitutionality; to give vent to political will rather than
concern for the Constitution; and to place a burden on the
Congress to intervene in court cases and litigate, when that
burden more, appropriately should be shouldered by the Department
of Justice. However, that is a matter to be discussed at another
time. The subject of this hearing is not a mere presentation of
views to the court by the Executive, but an order from OMB not to
obey the law.
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For example, in Immigration and Naturalization Service
v. Chadha, 103 S. Ct. 2764 (1983), the Executive Branch took
the view that the legislative veto in the Immigration and
Nationality Act was unconstitutional. However, that did not
lead the Justice Department, which has responsibility for
that law, to refuse to obey it. On the contrary, the Justice
Department, through its Board of Immigration Appeals, "held
that it had 'no power to declare unconstitutional an act of
Congress,'" id. at 2772.
The Department of Justice obeyed the legislative veto of
Mr. Chadha's request for citizenship. Understanding its
duty, it carried out the law even while presenting its views
to the Judiciary that the law was unconstitutional. The ,
courts had no difficulty resolving the case on this basis.
They ultimately ruled that the legislative veto was
unconstitutional. Only after the courts had so ruled, was
the Justice Department released from the binding presumption
of constitionality -- and only then did it cease obeying the
statute.
Most of the examples mentioned by the Justice Department
to justify its action fall into this pattern.12'1 It mentions
12/ United States v. Lovett, 328 U.S. 303 (1946)(executive obeys
funding cut-off and refuses to pay employee Lovett; Justice
Department meanwhile presents its view to the courts that the
funding cut-off was unconstitutional; court agrees and releases
(footnote continued)
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three disputes in the 1950s and 1960s over provisions for
"committee vetos," similar to legislative vetoes. Yet in
two, Presidents Kennedy and Johnson found ways to express
their views, without taking up the doctrine of Executive
showing their displeasure -- a method similar to the
expression of views to the Judiciary in Chadha. They
testified against the laws at Congressional hearings. They
declined to exercise some discretionary authority to avoid a
clash. But they did not put forth the menacing doctrine
stated here by the Justice Department -- that it can decide,
like the Judiciary, what laws are unconstitutional, and thus
which laws the President need not obey * 13/
The Justice Department cites an aberrational. view taken
during President Eisenhower's years. a temporary assertion
that certain provisions could "be regarded as invalid by the
executive from cut-off); Buckley v. Valeo, 424 U.S. 1
(1976)(Federal Election Commission carries out its statute;
Justice Department meanwhile presents its view to the courts that
certain provisions of the statute were unconstitution; court
agreed and struck those down, while retroactively validating pre-
decision acts of the Commission).
13/ Public Papers of the Presidents: John F. Kennedy 6
(1963)(construing a provision narrowly as a Congressional
"request for information"); Public Papers of the Presidents:
Lyndon B. Johnson, 104, 1250 (1963-64)(opposition to committee
vetos). The full story of such disputes was discussed in
hearings under the notable chairmanship of Senator Sam Ervin,
subsequently chairman of the Watergate Committee. See Separation
of Powers: Hearings Before the Subcomm. on Separation of Powers
of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess.
(1967).
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14/
Executive Branch."- This example proves peculiarly well
the reasons against any such assertion of power for the the
full story is quite another matter. For one thing, President
Eisenhower swiftly compromised with the Congress on this
issue, avoiding an outright clash. L5/
But more important, their example shows where such
assertions of Executive supremacy lead. For having tasted
the fruit of such unbridled power, the White House resorted
to it again, in 1960, as a means of covering up scandal in a
14/ Public Papers of the Presidents: Dwight D. Eisenhower, 689
(1955).
15/
As the committee veto dispute continued, Congress passed a
bill
with
another such provision. The bill said that contracts
for
family
housing at military installations would not be entered
into
until
the Defense Department "has come into agreement'with
the
Armed
Services Committees." (Section 219 of H.R. 9893, 84th
Cong., 2d Sess. (1956)).
President Eisenhower vetoed the bill, but indicated that an
alternative procedure would be acceptable. (Message from the
President of the United States Returning Without Approval the
Bill (H.R. 9893) ..., H.R. Doc. No. 450, 84th Cong., 2d Sess. 2
(1956).
Congress then reenacted the bill, with a provision saying
that such contracts would not be entered until the Defense
Department "has submitted to the Armed Services Committees ... a
written reort ...; and a one hundred and eighty-day period has
elapsed ... or the committees have advised the Secretary of
Defense , in writing, that there are no further questions."
Section 419 of H.R. 12270, 84th Cong., 2d Sess. (1956), as
enacted, Pub. L. No. 84-968, 70 Stat. 991, 1018-19.
Then, President Eisenhower conceded and signed this bill
without objection, and the controversy ended.
If this is the Justice Department's precedent for an OMB
directive for nationwide disobedience to the Competition in
Contracting Act, it is resorting to far-fetched analogies indeed.
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Latin American loan program. Congress had insisted on the
release of documents being covered up, by providing by
statute that if the key documents were not released, funds
for the program would be cut off. The White House refused to
release the documents, and refused to obey the law, claiming
it was not bound to.16/ It obtained an opinion of the
Attorney General to back it up.
As Clark Mollenhoff, the respected investigative
reporter who looked into the matter, described, Congressional
hearings were then held which "revealed malodourous details
of incompetence, conflicts of interest laxity," and illegal
diversion of funds.?17/ The White House was so embarrassed
at this that the new President -- President Kennedy --
abandoned the previous position and released the
documents.18Y
That eliminates the claim that Presidents can issue
general instructions not to obey the law. What it leaves are
the truly rare situations that arise perhaps once in a score
of years, if not even less often than that, when there is a
16/ Public Papers of the President Dwight D. Eisenhower 881
7196-6).
17/R. Berger, Executive Privilegel6: A Constitutional Myth 240
TT974), citing Clark Mollenhoff, Washington Cover-Up 184, 187-89
(1962).
18/ Id.
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challenged Act of Congress but no prospect whatsoever for a
ruling by the Judiciary on it unless the President breaks the
law. In these rarest of situations, the law has been broken
to create individual, narrowly focused test cases of the law.
For example, twice Presidents have tried to fire quasi-
judicial officers despite statutes protecting their
independence. The only way to have a test case of such a
statute is to fire such an official. In the 1930s, one such
case occurred, and in the 1950s, another such case
occurred. The Supreme Court upheld both laws and rejected
both firings.19/
Obviously, a situation where the President must break a
statute, in order to test it, is a highly regrettable
spectacle and dangerous for the Rule of Law. Fortunately, it
is virtually never necessary, and it has some clearly visible
delineations. The particular law must be one which everyone
agrees cannot be tested any other way. The particular test
example must be one specific, isolated incident, the results
19/ Humphrey's Executor v. United States, 295 U.S. 602 (1935);
Wiener v. United States, 357 U.S. 349 (1958). Also, Presidents
have sought to test laws protecting the tenure of the Secretary
of War -- the dispute which led to the impeachment trial of
Andrew Johnson -- and a patronage employee, a local postmaster --
the dispute which led to Myers v. United States, 272 U.S. 52
(1926). The Justice Department has come up with no more examples
of test cases than this, in looking over two hundred years of the
resolution of constitutional issues.
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of which can be dealt with in a single case. The public
should at all times be protected from the alien and
frightening prospect of the Executive branch declaring itself
not to be bound by the law, by executive officials continue
to obey the laws during the test case.
There is no comparison between such narrowly defined
test cases, and the situation here. Here the Office of
Management and Budget has used its awesome powers to issue a
sweeping, nationwide instruction to all contracting officers
not to obey the law. The instruction will affect,
simultaneously, many billions of dollars of procurements.
The number of contractors affected will number in the
hundreds, if not thousands.
Moreover, there is absolutely no basis for the
contention that this is the only way to test the statute. In
fact, this statute could easily have been tested in the
normal way. The statute stops for a time the award of a
contract to a particular contractor, while the GAO decides a
bid protest. Obviously, that contractor can go to court and,
in a proper case, test the statute. The Justice Department
never even waited to see if a contractor would do so. Yet in
the very first confrontation -- the one in federal court in
California -- the contractor aggrieved by the statute has
gone to court. Rather than asserting the incredible doctrine
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of Executive supremacy, the Justice Department could have
gotten the court case it desires just by obeying the statute
and letting such a contractor sue.
The fact of the matter is that the Justice Department's
claim -- that this OMB directive was the only way to test the
statute -- is a mere fig leaf covering the assertion of the
doctrine of Executive supremacy. Having now made the
grandiose assertion that when the President does not want to
obey a statute, he does not have to, the Justice Department
can be expected to attempt to enlarge the precedent whenever
it does not like a statute.
Where will the Claimed Executive Power Lead?
The consequences of this doctrine must not be
underestimated. It is one thing to have the fate of statutes
decided by the Judiciary -- by an independent group of
jurists, not personally interested in any case nor tied to
the parties, confined by procedure and precedent, and subject
to the traditions established by two centuries. Moreover, in
judicial cases, before there is any decision, those
supporting the Act of Congress will, hopefully, have the
opportunity to present all possible arguments in its favor,
and have them weighed neutrally and with the option of
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appeal.
It is quite another thing for the fate of statutes to
rest in the hands of the Attorney General. He is generally a
political associate of the President, placed in that position
because he is expected to be supportive, and capable of being
removed at any time if he is not. He shares the ideological
bent of the particular Administration rather than the long-
term precedents which control the courts. Moreover, he need
not hear from the affected individuals, the supporters of the
law in Congress, scholars, or anyone else other than the
internal bureaus of the Department of Justice, with their own
agendas, before making a decision.
For.these reasons, the Rule of Law indicates that this
Committee should reject the doctrine of Executive supremacy,
and should refuse to recognize as legitimate the OMB
directive instructing the procuring officers of the
government not to obey the law.
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9epartmerit of bstife
D. LOWELL JENSEN
ACTING DEPUTY ATTORNEY GENERAL
SUBCOMMITTEE ON LEGISLATION
AND NATIONAL SECURITY
GOVERNMENT OPERATIONS COMMITTEE
HOUSE OF REPRESENTATIVES
CONCERNING
COMPETITION IN CONTRACTING
ACT OF 1984
MARCH 7, 1985
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TESTIMONY OF D. LOWELL JENSEN
ACTING DEPUTY ATTORNEY GENERAL
BEFORE THE LEGISLATION AND NATIONAL SECURITY
SUBCOMMITTEE OF THE HOUSE COMMITTEE ON
GOVERNMENT OPERATIONS
March 7, 1985
I am happy to appear before you today to discuss the
Department's position with respect to the Competition and
Contracting Act of 1984 ("CICA" or "the Act"), which was
enacted as part of the Deficit Reduction Act of 1984.
Public Law No. 98-369, 98 Stat. 494 (1984). When the President
signed this legislation into law, he requested the Attorney
General to inform the Executive Branch agencies regarding
how to comply with the Act in a manner consistent with the
Constitution. As you know, in response to this request,
the Department has determined that federal agencies should
not execute certain bid-protest provisions of the Act. The
first provision requires a procuring agency to suspend or
"stay" any procurement if a bid protest is filed prior to
the award of a contract or within ten days after the award.
The provision then purports to authorize the Comptroller
General to lift this stay of the procurement by issuing his
decision on the bid protest. See revised 31 U.S.C. ? 3553(c)
and (d). The second provision purports to authorize the
Comptroller General to make binding awards of attorney's
fees and bid preparation costs to successful bid protestors.
See revised 31 U.S.C. ? 3554(c).
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Before I discuss these specific provisions, however,
there are several points that I would like to make with
respect to the Department's position on the CICA. First, I
want to emphasize that the Department has no general objection
to the bid protest procedures established by the CICA. To
the contrary, we believe that the Comptroller General plays a
very useful advisory role in the bid protest area, and we believe
that his participation has been extremely helpful in resolving
bid protest disputes. Thus, we are happy to see the Comptroller
General continue his review of bid protests, and we have no
objection to the explicit statutory authorization for this
role that is set forth in the CICA.
Second, we are entirely sympathetic with the need, in
some instances, to suspend or delay a procurement in order to
resolve the legal questions raised by a bid protest. Because
the Executive Branch is sensitive to the need for a stay in
some circumstances, the Federal Acquisition Regulations (FAR)
provided prior to the CICA, and the revised FAR provisions on
bid protests continue to provide, for the suspension of a
procurement if a bid protest is filed prior to the award of a
contract. See 48 C.F.R. S 33.104(b)., 50 Fed. Reg. 2271
(January 15, 1985). Thus, although we do not believe that
the Comptroller General may play a role in determining when'a
stay may be lifted, the Executive Branch has provided on its
own a stay provision that substantially meets the concerns
that motivated the stay provision in the CICA.
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In explaining the Department's decision, I would like to
discuss three general subjects. First, I would like to set forth
the history of the Department's policy with respect to this
issue in order to place the decision in its proper context.
Next, I would like briefly to describe the grounds for our
legal conclusion with respect to the constitutionality of the
CICA. Finally, I would like to discuss the reasons underlying
the Department's decision not to enforce the unconstitutional
provisions of the Act.
I
Since the adoption of the Budget and Accounting Act in 1921,
the Department has taken a consistent position with respect to
the power and authority of the Comptroller General. Because the
Comptroller General is part of the Legislative Branch of the
Government, the position of the Department has been that the
Comptroller General may not bind the. Executive Branch. See,
e. g., Testimony of Larry Hammond, Deputy Assistant Attorney
General, Office of Legal Counsel, before the Subcommittee on
Legislation and National Security of the House Committee on
Government Operations, 95th Cong., 2d Sess. (June 28, 1978).
Although differences of opinion with respect to the proper
role of the Comptroller General have led to a number of
disputes between the Department and GAO, these disputes have
not come to a head because the Comptroller General has not
pressed his authority to bind the Executive Branch.
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Early in 1984, the Department received a request from this
Committee for comments on bid protest provisions, similar to
the ones finally adopted in the CICA, that were then under
consideration by the Committee as part of H.R. 5184. The
Department commented on and objected to the constitutionality
of the two provisions that purported to give-the Comptroller
General the authority to bind the Executive Branch. See Letter
to Honorable Jack Brooks, Chairman, House Committee on Government
Operations, from Robert A. McConnell, Assistant Attorney General,
Office of Legislative and Intergovernmental Affairs (April 20,
1984). I would be happy to provide the Committee with a copy
of this letter and any other documents referred to in my
testimony. These comments were based on the Department's long-
standing position with respect to the proper constitutional role
of the Comptroller General and the authority of the Legislative
Branch as most recently defined in INS. v. Chadha, 462 U.S. 919
(1983).
Despite the comments of the Department with respect to the
unconstitutionality of these provisions, the provisions were
ultimately adopted by Congress as part of the CICA, which itself
was made a part of the Deficit Reduction Act. Although the
President believed the two provisions of the CICA that empowered
the Comptroller General to bind the Executive Branch to be unconsti-
tutional, he concluded that it would not be in the national
interest to veto the entire Deficit Reduction Act because of
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these provisions. Therefore, the President noted in a signing
statement his constitutional objections to these provisions and
requested the Department of Justice to inform Executive Branch
agencies how they might comply with the Act in a manner consistent
with the Constitution. See 30 Weekly Comp. Pres. Doc. 1037 (July
18, 1984).
Thereafter, the Office of Legal Counsel prepared a memorandum,
which concluded that the two provisions purporting to vest the
Comptroller General with authority to bind the Executive Branch
were unconstitutional and recommended that these provisions not
be enforced by the Executive Branch. See Memorandum for the
Attorney General, from Larry L. Simms, Acting Assistant Attorney
General, Office of Legal Counsel, re "Implementation of the
Bid Protest Provisions of the Competition and Contracting Act"
(October 17, 1984). The Attorney General directed that this
memorandum be distributed to the Executive Branch agencies
responsible for implementing the provisions of the CICA.
Subsequently, the Attorney General expressly adopted the
conclusions of the Office of Legal Counsel in letters sent to
the Speaker of the House and the President of the Senate
to inform Congress, as required by statute, of the Department's
decision not to enforce the two unconstitutional provisions of
the CICA. See Letters to Honorable Thomas P. O'Neil, Jr., Speaker
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of the House of Representatives, and Honorable George Bush,
President of the Senate, from William French Smith, Attorney
General (November 21, 1984). In addition, the Attorney General
responded by a letter of the same date to a letter from Senator
William S. Cohen, Chairman of the Subcommittee on oversight of
Government Management of the Senate Committee on Governmental
Affairs. In the letter to Senator Cohen, the Attorney General
reiterated the basis for the Department's conclusions with
respect to the unconstitutionality of the CICA and, in particular,
set forth the basis for the Department's decision to advise
Executive Branch agencies not to comply with the unconstitutional
provisions.
The Attorney General also sent a letter to the Director of
the Office of Management and Budget (OMB), dated November 21, 1984,
which requested the Director to assist in ensuring compliance by
all Executive Branch agencies with the legal advice provided by
the Department of Justice concerning the CICA. Subsequently,
the Director of OMB issued a bulletin to the heads of executive
departments and agencies setting forth procedures governing
implementation of the CICA, which advised executive agencies
to conduct their contracting activities in accordance with the
Attorney General's legal advice. See OMB Bulletin No. 85-8
(December 17, 1984).
The bid protest provisions of the CICA went into effect
on January 15, 1985, and litigation has already been filed to
test the validity of the Department's conclusions with
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respect to the unconstitutionality of the two bid protest
provisions.
II
The next issue I would like to address is the substance of
the Department's legal conclusion that the two provisions purporting
to authorize the Comptroller General to bind the executive branch
are unconstitutional. The Office of Comptroller General of the
United States was created by the Budget and Accounting Act of
1921. See 42 Stat. 23 (1921). The Budget and Accounting Act
expressly stated that the Comptroller General is "independent of
the executive departments . . . ." Id. Subsequent legislation
made it clear that the Comptroller General is part of the
Legislative Branch. The Reorganization Act of 1945 specified
that, for the purpose of,the Act, the term "agency" meant any
executive department, commission, independent establishment, or
government corporation, but did "not include the Comptroller
General of the United States or the General Accounting Office,
which are a part of the legislative branch of the Government."
59 Stat. 616 (1945). The same provision was included in the
Reorganization Act of 1949. See 63 Stat. 205 (1949). The
Accounting and Auditing Act of 1950 declared that the auditing
for the Government would be conducted by the Comptroller General
consent of the Senate, appoints the Comptroller General, the
President has no statutory right to remove the Comptroller General,
as an agent of the Congress . . . ." 64 Stat. 835 (1950).
Although the President nominates and, with the advice and
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even for cause. See 31 U.S.C. ? 703 (1982). The Comptroller
General is appointed for a fifteen-year term, but he may be
removed either by impeachment or by a joint resolution of Congress,
after notice and an oppportunity for hearing, for "(i) permanent
disabilty; (ii) inefficiency; (iii) neglect of duty; (iv) malfea-
sance; or (v) a felony or conduct-involving moral turpitude."
31 U.S.C. ? 703(e)(1). Given the breadth of the grounds of
removal, particularly the terms "inefficiency" and "neglect of
duty," Congress enjoys a relatively unlimited power over the
tenure in office of the Comptroller General. 1/
Congress expected this broad power of removal to give it
the right effectively to control the Comptroller General. The
chief House manager of the Budget and Accounting Act stated with
respect to the new position of Comptroller General:
This officer is to be the arm of Congress.
When he fails to do that work in a strong
and efficient way, in a way that Congress
would have the law executed, Congress has
its remedy, and it can reach out and say
if the man is not doing his duty, if he
is inefficient or guilty of any of these
other things, he can be removed.
61 Cong. Rec. 1080 (1921) (remarks of Rep. Good).
1/ The Supreme Court has recognized that the power to remove
an official is necessarily linked to the power to supervise
and control the actions of that official. See Humphrey's
Executor v. United States, 295 U.S. 602, 627 (1935).
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Thus, the Comptroller General is unquestionably part of the
Legislative Branch and is directly accountable to Congress. His
status as a legislative officer may not be changed simply by
assigning him certain executive responsibilities. As part of the
congressional establishment, the Comptroller General may consti-
tutionally perform only those functions that Congress may consti-
tutionally delegate to its constituent parts or agents, such as
its own Committees.
The Supreme Court has most recently and thoroughly considered
the scope of Congress's authority to act through its agents in
INS v. Chadha, 462 U.S. 919 (1983). In Chadha, the Court
declared unconstitutional a one-house legislative veto provision.
In so doing, the Court underscored the constitutional requirement
that, in order for Congress to bind or affect the legal rights of
government officials or private persons outside the Legislative
Branch, it must act by legislation presented to the President for
his signature or veto:
The decision to provide the President
with a limited and qualified power to
nullify proposed legislation by veto was
based on the profound conviction of the
Framers that the powers conferred on Congress
were the powers to be most carefully circum-
scribed. It is beyond doubt that lawmaking
was a power to be shared by both Houses and
the President.
103 S. Ct. at 2782. When Congress takes action that has "the
purpose and effect of altering the legal rights, duties and
relations of persons . . outside the legislative branch," it
must act by passing a law and submitting.it to the President in
accordance with the Presentment Clauses and the constitutionally
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prescribed separation of powers. Id. at 2784 (emphasis added).
The Court emphasized that "when the Framers intended to authorize
either House of Congress to act alone and outside of its prescribed
bicameral legislative role, they narrowly and precisely defined
the procedure for such action." Id. at 2786. 2/
Finally, with respect to Congress's power over the Legislative
Branch, the Court concluded:
One might also include another "exception"
to the rule that Congressional action having
the force of law be subject to the bicameral
requirement and the Presentment Clauses.
Each house has the power to act alone in
determining specified internal matters. Art. I,
? 7, cls. 2, 3, and ? 5, cl. 2. However, this
"exception" only empowers Congress to bind
itself and is noteworthy only insofar as it
further indicates the Framers' intent that
Congress not act in any legally binding manner
outside a closely circumscribed legislative
arena, except in specific and enumerated
instances.
Id. at 2786 n.20 (emphasis added).
We believe that if a court were to apply the separation of
powers principles discussed above to establish the constitutional
2/ As the Court noted, there are only four provisions in the
Constitution by which one House may act alone with the unreview-
able force of law, not subject to the President's veto: the
power of the House of Representatives to initiate impeachment,
the power of the Senate to try individuals who have been impeached
by the House; the power of the Senate to approve or disapprove
presidential appointments; and the power of the Senate to ratify
treaties negotiated by the President. See 103 S. Ct. at 2786.
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role of the Comptroller General, it would limit the Comptroller
General to those duties that could constitutionally be performed
by a congressional committee. Thus, under the above principles,
the Comptroller General may not act in an executive capacity, and
he may not take actions that bind individuals and institutions
outside the Legislative Branch. He may advise and assist Congress
in reviewing the performance of the Executive Branch in order to
determine if legislative action is desirable or necessary. He
may not, however, substitute himself for either the executive
or the judiciary in determining the rights of others or executing
the laws of the United States. Our analysis of the bid protest
provisions of the CICA is based upon these conclusions.
Under the stay provision of the CICA, a procuring agency is
required to suspend a procurement upon the filing of a bid protest
until the Comptroller General issues his decision on the protest.
Thus, the Comptroller General is given the power to determine
when the stay will be lifted by the issuance of his decision on a
bid protest. As a practical matter, the Comptroller General
could effectively suspend any procurement indefinitely simply by
delaying for an indefinite period his decision on a bid protest.
From a constitutional perspective, we find nothing improper
in the requirement for a stay, in and of itself. Congress fre-
quently requires Executive Branch agencies to notify Congress
of certain actions and wait a specified period before implementing
those actions. These so-called "report and wait" requirements
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were specifically recognized by the Supreme Court in Chadha as a
constitutionally acceptable alternative to the legislative veto.
See 103 S. Ct. at 2783.
The problem in this instance arises from the power granted
to the Comptroller General to lift the stay. The CICA gives the
Comptroller General, an agent of Congress, the power to dictate
when a procurement may proceed. This authority amounts, in
Chadha's words, to a power that has the "effect of altering the
legal rights, duties and relations of persons . . . outside the
legislative branch." See 103 S. Ct. at 2784: As a constitutional
matter, there is very little difference between this power and
the power of a legislative veto.
A difficult problem is presented in this instance, however,
by the question of the extent to which the unconstitutional pro-
vision is severable from the remainder of the CICA. In Chadha,
the Court ruled that an unconsitutional provision is generally
presumed to be severable. The Court outlined several guidelines
with respect to evaluating this issue in a specific instance.
First, the Court stated:
Only recently this Court reaffirmed that
the invalid portions of a statute are to
be severed "'[u]nless it is evident that
the Legislature would not have enacted those
provisions which are within its power, inde-
pendently of that which is not.'" Buckley v.
Valeo, 424 U.S. 1, 108 . . . (1976), quoting
Champlin Refining Co. v. Corporation Comm'n,
286 U.S. 210, 234 . . . (1932).
INS v. Chadha, 103 S. Ct. at 2774. Thus, unless there are clear
indications that Congress would have intended additional parts of
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statute to fall because of the invalidity of a single provision,
the invalid provision will be severed. Second, the Court stated
that Congress did not intend that the entire statute or any other
part of it would fall simply because another provision was uncon-
stitutional. 103 S. Ct. at 2775. Finally, the Court stated that
"[a] provision is further presumed severable if what remains
after severance is 'fully operative as a law.' Champlin Refining
Co. v. Corporation Comm'n, supra, 286 U.S. at 234." 103 S. Ct.
at 2775. The severability issue must be analyzed in light of
these principles.
The only aspect of the stay provision that is directly
unconstitutional is the provision authorizing the Comptroller
General to lift the stay by issuing his decision or finding that
a particular protest is frivolous. If this provision alone were
severed, the stay would remain in effect indefinitely because
there would be no remaining statutory basis for terminating the
stay. Although the statute could technically operate this way,
as a practical matter this alternative would seem quite draconian
because it would permit any bid protester effectively to cancel
a procurement simply by filing a protest. It is clear that
Congress did not intend such a result when it adopted the CICA.
See H.R. Rep. No. 861, 98th Cong., 2d Sess. 1436-37 (1984).
Alternatively, the stay provision could be intepreted to
require a mandatory stay for a set period of time in order to
give the Comptroller General an opportunity to reach a decision
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on the bid protest. This period of time might be set at 90 working
days, which is the period of time established by the CICA as the
standard time within which the Comptroller General should issue
his decision on a bid protest.
We do not believe, however, that such a reworking of the
statute would be consistent with Congress's intent. First,
such a construction would involve essentially a redrafting of the
stay provision rather than simple severance of the offending
sections. Second, and more important, it would mean that any
time a bid protest were filed, a procurement would automatically
be delayed for 90 working days. Thus, any interested party who
might be able to file a protest, however ill-founded, could prevent
a procurement for a not insubstantial period of time.
We do not believe that Congress intended the bid protest
process to be subject to such potential manipulation. In fact,
Congress expressly included the provision granting the Comptroller
General the power to dismiss frivolous protests precisely in
order tr avoid this potential abuse. The conference report
stated:
The conference substitute provides that
the.Comptroller General may dismiss at any
point in the process a filing determined to
be frivolous or to lack a solid basis for
protest. This provision reflects the intent
of the conferees to keep proper contract
awards or due performance of contracts from
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being interrupted by technicalities which
interested parties in bad faith might
otherwise attempt to exploit.
H.R. Rep. No. 861, 98th Cong., 2d Sess. 1436-37 (1984). Given
our conclusion that the provision permitting the Comptroller
General to terminate the stay immediately in the case of a
frivolous protest is unconstitutional, we do not believe that
Congress would have intended for all contracts to be delayed for
any set period of time simply upon the filing of a protest,
regardless of the good faith of the protestor or merit of the
protest.. Therefore, because the provisions permitting the Comp-
troller General to terminate the stay must be severed from the
statute, we believe that the entire stay provision must be stricken
as well. 3/
The provision permitting the Comptroller General to award
costs, including attorney's fees and bid preparation costs, to
a prevailing protestor, and which purports to require federal
agencies to pay such awards "promptly," 31 U.S.C. 5 3554(c)(2),
suffers from a constitutional infirmity similar to the one that
afflicts the stay provision. By purporting to vest in the
Comptroller General the power to award damage against an
3/ We do not doubt that, under the severability principles set
forth above, the stay provision may be severed. The Act may
operate perfectly well without the stay provision, and there is
no indication that Congress would have wished the entire Act
to fall if the stay provision were invalidated.
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Executive Branch agency, Congress has attempted to give its agents
the authority to alter "the legal rights, duties and relations
of persons . . . outside the legislative branch." 103 S. Ct.
at 2784. That this authority is in the nature of a judicial
power makes it no less impermissible for Congress to vest it in
one of its own agents. Congress may no more exercise judicial
authority than it may exercise executive authority. See INS v.
Chadha, 103 S. Ct. at 2788 (Powell, J., concurring). Although
Congress may by statute vest certain quasi-judicial authority
in agencies independent of Executive Branch control, see Humphrey's
Executor v. United States, 295 U.S. 602 (1935), Congress may not
vest such authority in itself or one of its arms, in clear viola-
tion of the constitutionally prescribed separation of powers.
Based on the foregoing discussion of the law of severability,
we believe that the damages provision is clearly severable from
the remainder of the CICA. The remainder of the Act is unrelated
to the damages provision and may clearly continue to operate fully
as a law without the invalid provision. Moreover, we find no
evidence, either in the statute or in its legislative history, to
indicate that Congress would not have enacted the remainder of
the CICA without the damages provision. Therefore, only the
damages provision need be stricken from the statute.
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We wish to emphasize that we do not question the validity of
the remainder of the CICA, and, in particular, the general grant
of authority to the Comptroller General to review bid protests.
Congress may, consistent with the Constitution, delegate to a
legislative officer the power to review certain Executive Branch
actions and issue recommendations based upon that review. Thus,
the Comptroller General may continue to issue decisions with
respect to bid protests. In accordance with the principles
discussed above, however, these decisions must be regarded as
advisory and not binding upon the Executive Branch.
III
The final issue that I would like to address is the decision
of the Attorney General not to execute the unconstitutional
provisions of the CICA. Under the Constitution, the President
and his subordinates have a duty "to take Care that the Laws be
faithfully executed." Art. II, S 3. Unquestionably, the
requirements of the Constitution prevail over any statute adopted
by Congress. Therefore, in the case of a conflict between the
Constitution and a statute, the President's duty faithfully to
execute the laws requires him not to observe a statute that is in
conflict with the Constitution, the fundamental law of the land.
We recognize, however, that, until a law is adjudicated to
be unconstitutional, the issue of enforcing a statute of questionable
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constitutionality raises sensitive problems under the separation
of powers.
Historically, the Executive has taken the position that
the Department appropriately will not defend the constitutionality
of a'statute when the statute, as does the CICA, infringes
upon the constitutional prerogatives of the Executive. The
President has a constitutional right, indeed a duty, to
maintain the separation of powers established by the Constitution:
The hydraulic pressure inherent within each-of the separate
Branches to exceed the outer limits of its power, even to
accomplish desirable objectives, must be resisted." INS v.
Chadha, 462 U.S. 919 (1983).
The legitimacy of such a refusal by the Department not to
defend the constitutionality of a statute has long been
recognized. For example, during the impeachment trial'of
President Andrew Johnson, Chief Justice Chase declared that
the President had no duty to execute a statute passed by
Congress which:
directly attacks and impairs the executive power
confided to him by [the Constitution]. In that
case it appears to me to be the clear duty
of the President to disregard the law,
so far at least as it may be necessary
to bring the question of its constitution-
ality before the judicial tribunals.
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How can the President fulfill his oath
to preserve, protect, and defend the
Constitution, if he has no right to
defend it against an act of Congress,
sincerely believed by him to be passed
in violation of it? 4/
This general principle has been carried out by the Executive
Branch in a number of instances since the time of President
Johnson. For example, the President acted directly contrary to
a statute that prohibited the removal of a postmaster, based on
his conclusion that the statute was unconstitutional. This act
eventually led to the Executive's successful challenge to the
act's constitutionality in litigation brought by the removed
postmaster. Myers v. United States, 272 U.S. 52 (1926).
See also Humphrey's Executor v. United States, 295 U.S. 602
(1935). In other instances, the Executive refused to defend
statutes that impaired the constitutional prerogatives of the
Presidency. See United States v. Lovett, 328 U.S. 303
(1946)(successful challenge to a statute that directed the
salaries of certain federal employees not be paid); Buckley v.
Valeo, 424 U.S. 1 (1976) (successful challenge to constitutionality
of a statute that permitted appointment of members of the
Federal Election Commission by members of Congress).
4/ R. Warden, An Account of the Private Life and Public Services
of Salmon Portland Chase, 685 (1874)(emphasis in original).
Chief Justice Chase's comments were made in a letter written
the day after the Senate had voted to exclude evidence that the
entire cabinet had advised President Johnson that Tenure in
Office Act was unconstitutional. Id. See M. Benedict, The
Impeachment and Trial of Andrew Johnson, 154-55 (1973).
Ultimately, the Senate admitted evidence that the President had
desired to initiate a court test of the law. Id. at 156.
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In addition to these examples involving actual litigation
with respect to constitutional conflicts, there are a number of
examples of presidential refusals to execute statutes that
unconstitutionally infringe upon presidential prerogatives by
purporting to give Congress the authority to direct the Executive
Branch with respect to the execution of the law. For example,
in 1955, almost three decades before the-Chadha case was decided,
? President Eisenhower instructed the Secretary of Defense to
ignore a so-called "committee approval" provision contained in
a ,Department of Defense appropriations act, by stating in a.
signing statement that the provisions "will be regarded as
invalid by the Executive Branch of the Government . . . unless
otherwise determined by a court of competent jurisdiction."
Public Papers of the Presidents: Dwight D. Eisenhower, 689
(1955). In 1963, President Kennedy stated that the unconsti-
tutional features of another committee approval device would be
ignored, with the provision to be treated as a "request for
information." Public Papers of the Presidents: John F. Kennedy,
6 (1963). President Johnson also made clear that the unconstitu-
tional aspects of legislative veto devices would be.ignored.
Public Papers of the Presidents: Lyndon B. Johnson, 104, 1250
(1963-64). President Johnson instructed the Secretary of
Agriculture, in connection with the making of loans under an
amendment to the Bankhead-Jones Farm Tenant Act, 7 U.S.C.
?? 1010-12, "to refrain from making any loans which would
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require committee approval." 2 Weekly Comp. Pres. Doc. 1676
(1966). The Chadha court never suggested that there was any
impropriety in the President's conduct in contesting acts of
Congress he believed infringed on'his constitutional prerogatives.
I would also-like to note that the Attorney General properly
followed the statutory procedures for the notification of
Congress with respect to decisions not to defend the
constitutionality of statutes.
The decision not to execute the unconstitutional provisions
of the CICA is entirely consistent with historical and judicial
precedent. The two provisions at issue directly infringe upon
the constitutional prerogatives of the Executive Branch by
proporting to permit an arm of the legislature to bind Executive
Branch officials. As we indicated earlier, this constitutional
defect is precisely the same problem that caused the Supreme
Court to strike down the legislative veto in Chadha. Thus, the
same considerations that motivated President's Eisenhower,
Kennedy, and Johnson to direct the Executive Branch to disregard
certain legislative veto provisions also warrant the decision
(particularly now that the Supreme Court in Chadha has so
clearly declared legislative vetoes to be unconstitutional) not
to execute the provisions proporting to give an arm of the
legislature the authority to bind the Executive Branch.
IV
Finally, I would like to make one additional point with
respect to this issue. We all recognize that the constitutional
issue at stake here will ultimately be resolved by the courts
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and that the most responsible method for resolving this dispute
concerning the separation of powers is to ensure a rapid
judicial hearing of this question. If the Department were to
execute fully the provisions of the CICA, however, we believe
it is unlikely that the substantive issue would ever be able to
be presented to a court. We believe that it is unlikely that,
if the Executive Branch were to implement fully the provisions
of the CICA, anyone would have standing to challenge the consti-
tutionality of the provisions that purport to authorize the
Comptroller General to bind the Executive Branch. Thus, on the
basis of this conclusion, the Department's decision not to
enforce the two unconstitutional provisions has the beneficial
byproduct of rendering much more likely a speedy judicial
resolution of this question, which would be in the best interests
of both the Executive and Legislative Branches and would be
most responsive to the special, separation of powers problems
presented by this issue.
As a final note, I would add that under the Department's
policy of non-enforcement, the first challenge has been filed
that raises the issue of the constitutionality of the CICA. See
Lear Siegler, Inc., Energy Products Division v. Lehman, No. 85-
1125 KN (C.D. Ca.). I understand that the Comptroller General,
the House, and the Senate have all asked. to participate in this-
litigation with respect to the constitutional issue. Thus, it
seems clear that the courts will be permitted to have the final
say on this question.
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EL K. DEAVER
illed "sales promotion"
FIELDING 14
nto car purchases
Congress, White ? House. in . Face-Off
ver Powers of
GAO bn Contracts
Reagan Signed .Provision He Now Condemns.
By Myron Struck
Washington Post Staff Writer
Perhaps no constitutional matter
is more vigorously policed in turf-
conscious Washington than the sep-
aration of powers, by which the
founding fathers sought to divvy up
authority among equal branches of
government.
So it is that a provision in the
1984 Deficit Reduction Act has be-
come the latest centerpiece in a
battle between Capitol Hill and the
White House, with each side accus-
ing the other of usurping its rightful
authority.
The provision gives the comp-
troller general of the United States,
who is head of the General Account-
ing Office, authority to- hold up a
filed a legitimate protest over the ? lashes out'at OMB's Stockman
i
in
ons is due in part to the murki-
- --r~ ?..... ...w Uw - r-~??~?~..~ M 4UCaLI,n, It IS ness involving the status of the
protests but no
the responsibilit
ower' t
f
k
p
y o
o
eep a
government of GAO Ih
-:s te comptroller general an
contract from being awarded during ficials to comply with the statute in officer of the legislative branch, the
an investigation. its entirety," Brooks said. "I believe executive branch, or both?
In effect, the 1984 law gave the the president has- received incred- The administration argues that
GAO that nnwar whi
n
.. _ _
h r------- ibly bad advice from th
c
ey
e
fi
gured wasd k
a goo way toeep
agencies from improperly awarding
contracts.
Last July, President Reagan vig-
orously objected to the provision,
arguing that the comptroller gen-
eral is an "officer of Congress" who
could not interfere with executive
branch procurement.
Reagan signed the bill into law
anyway. But in' December, armed
with a justice Department, opinion
that the provision was unconstitu-
tional, the Office of Management
and Budget instructed departments
and agencies to ignore it.
. That has rankled key members of
the House and the Senate. They
contend that Reagan either should
have vetoed the bill or honored the
law until the courts had ruled on its
constitutionality.
At a congressional hearing last
week, Rep. Jack Brooks (D-Tex.),
chairman of the Goverment Oper-
ations Committee, lashed out at
OMB Director David A. Stockman
for going "so far as to order federal
officials to willfully violate the law.'`
bidding process. - Previously, the
Absent a judicial determination
--
t
W
o e hite House, and that
Smith], the OMB director and the the comptroller, general does not
major procuring agencies on this serve "at the pleasure of the pres-
matter." ident." But Comptroller General
In a statement at Brooks' hear- Charles A. Bowsher, who holds a
ing, Sens. William S. Cohen (R- 15-year fixed term, reminded
Maine) and Carl Levin' (D-Mich) Brooks'
Fon4
.
An
in g,
ulture
idng 1
~fense
to 9, 1
. whic
licit ri
d they
osal tc
by free
t levels
said that Reagan's. "unilateral de- he was appointed ommfttee last week that
by the president trtisan
cision ... to refuse to enforce a and confirmed by the Senate. pro
statute constitutes a usurpation of Brooks' committee is looking for s on o
the proper role of the judiciary and a parallel between Reagan's action it far
a failure by the president to meet and that of President Andrew John- c spen
his constitutional responsibility to son, the only president to be im- Cha'
'take care that the laws be faithfully peached. Johnson, who was narrow- l.).
executed.' " ly acquitted in a Senate trial in - and
Legal opinions abound on the 1868, was accused of violating the Dome
controversy. Former attorney gen- ' federal Tenure of Office Act by at- leficits
eral Smith said in a recent letter to tempting to fire his secretary of next y
House Judiciary Committee Chair- war, who had sided with Johnson's n halvi
man Peter J. Rodino (D-N.J.) that congressional adversaries. lion wit
the administration's position is The Americ
L
an
aw Divisio dd
ni -
based based on a 1983 Supreme Court de- not find a clear precedent in the
cision that threw out the legislative Johnson impeachment. It noted,
veto (Immigration and Naturaliza- however, that Johnson's supposed
lion Service v. Chada). offense "occurred in justifying his
The legislative veto had become exercise of a veto, not in defiance of
an increasingly popular device, a validly enacted and effective law."
Lawmakers saw it as a means to Brooks said he intends to ques-
second-guess executive branch de- tion Stock
d
man an
Justice Det
par-
cisions. According to Smith, giving ment officials at a second hearing
authority over contracts to the' head today.
Sanitized Copy Approved for Release 2009/11/04: CIA-RDP87M0l 152R000400570007-4
scut:ra, [then William French u,uen to congress,
.
t t
h
of the GAO; "an arm of Congress,; amounted to the same usurpation ni
veto power. . . A
But the American . Law Division
of the Library of -Congress, in an
opinion requested by Brooks,essen-
tially'sided with the lawmakers,
The law division noted that thg
Constitution does not give th
s
e pres
ident the power to suspend a law: i
"The legislative nature of the ac;
tion taken by the administration ..'.
seems clear," the opinion said. "Iq iiz
doing so; the
r
id
ha
p
es
ent
s ffec
-
tively suspended its t,
oaj
across the board,. an action which
entails lawmaking." 6
By basing his order on the al-
leged unconstitutionality of the pro- a
vision, the law division said, Reagan ap11O
"arguably" ricers
intruded on the power of
the judiciary as well. troller
The murky state of the legal op- iC yes
agan';
!ded D
)ut beg
s soon
tg.
?ze far
.l