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

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87M01152R000400570008-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 47
• Document Creation Date: December 22, 2016
• Document Release Date: November 4, 2009
• Sequence Number: 8
• Publication Date: February 28, 1985
• Content Type: MEMO

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REr n r Y
tt- CTo
OLL 85-0687
28 February 1985
MEMORANDUM FOR THE RECORD
SUBJECT: 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 10:00 a.m. on
28 February 1985, in Room 2154 Rayburn. The following
Members of the Subcommittee were present:
Jack Brooks (D., TX), Chairman
Don Fuqua (D., FL)
Frank Horton (R., NY)
David S. Monson (R., UT)
2. The Chairman opened the hearings by stating they were
being held to determine the constitutionality of GAO's
enforcing certain provisions of PL No. 98-369 (Competition in
Contracting Act - CICA). He stated that there had been
considerable opposition to these reforms from Executive
Branch agencies within the Defense Department and also from
some private industries. He further stated that at issue
here was the separation of powers between the Legislative and
Executive Branches and that the third branch is the one that
should make the decision on whether a law is unconstitutional.
3. Chairman Brooks said that both the Director of the
Office of Management and Budget and the Attorney General had
been invited to testify, and that the Department of Justice
was being uncooperative. March 7 has been set for
Mr. Stockman to testify before the Subcommittee, if he is
well enough to appear because of his recent illness.
4. Mr. Brooks submitted for the record a letter signed
by himself, Congressman Fuqua, Senator Carl Levin of Michigan,
and Senator William Cohen of Maine, all of whom support the
legislation enacted, including the two provisions in the law
which the Attorney General considers unconstitutional and the
Executive Branch is not enforcing. The Attorney General's
view is that the Act violates the separation of powers'
doctrine by authorizing the Comptroller General (1) to lift
the suspension of procurement action by issuing a protest
decision, and (2) to award costs.
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5. Mr. Bowsher, Comptroller General, was the first
witness and he read his statement in its entirety (a copy of
which is attached). This was followed by several questions
put to him and his General Counsel, Mr. Harry R. Van Cleve,
who responded they had found several areas in the Executive
Branch where the intent of the law had been ignored, that it
was causing some hardships in industry, but it is hard to
determine how much uncertainty it is causing, and the
situation is worsening. Mr. Van Cleve also commented that
GAO does not as yet have sufficient data collected on bid
protest cases, but they will be able to submit the informa-
tion in about six weeks.
6. When asked if any court cases are coming up to test
the constitutionality of the GAO's authority under the CICA,
Mr. Van Cleve said a Navy contract case was filed in Los
Angeles and a hearing for a preliminary injunction is set for
11 March. He also said that he could recollect no other
instance where the Justice Department had rendered a decision
that part of a law be declared unconstitutional.
7. Following GAO's testimony, the Constitutional Panel,
comprised of three Professors of Law, jointly responded to
queries on the Executive Branch taking upon itself to declare
unconstitutional a law passed by the United States Congress.
All were emphatic in their views that the Competition in
Contract Act of 1984 is constitutional and represents the
execution of Congressional power and oversight over the
Executive Branch and its agencies. When asked what the
Congress could do to get the law enforced, one professor said
that if the law is unconstitutional there are other ways to
determine it:
--test it in the Courts;
--impeach the President (which he felt most unlikely);
--withhold appropriations.
The Chairman grasped on to the last suggestion by saying
that he has long been a member of the House Judiciary and
that next week that Committee will deal with the Justice
Department's appropriations--he is looking forward to that
meeting.
A copy of the three statements submitted by the
professors is also attached. None of them read any parts of
their statements which had been submitted prior to the
Hearing.
STAT
Liaison Division
Office of Legislative Liaison
Attachments
As stated
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LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE
Hearing on the Constitutionality of the
GAO's Bid Protest Function
Thursday, February 28, 1985
10:00 a.m.
2154 Rayburn House Office Building
SCHEDULE OF WITNESSES
General Accounting Office
The Honorable ar es A. Bowsher
Comptroller General
Accompanied by: Mr. Milton J. Socolar
Special Assistant to the Comptroller General
Mr. Harry R. Van Cleve
General Counsel
Constitutional Law Panel
Professor Mark us net
Georgetown University Law Center
Professor Sanford Levinson
University of Texas Law School
Professor Eugene Gressman
University of North Carolina Law School
American Bar Association
The Honorable Karen Hastie Williams
Chairman, Legislative Liaison Committee
Section of Public Contract Law
(Partner, Crowell & Moring)
Appearing with: Mr. George M. Coburn
Of Counsel, Sachs, Greenebaum & Tayler
National Tooling & Machining Association
Mr. William Hardman
President and Chief Operating Officer
Accompanied by: Mr. Bruce N. Hahn
Chairman-Elect, Small Business Legislative Council
Mr. Paul J. Seidman
Procurement Counsel
Computer and Communications Industry Association
Mr. A. G. W. Biddle
President
Accompanied by: Mr. David S. Cohen
Senior Partner, Cohen & White.
Mr. P. David Pappert
President, ViON Corporation
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The Feclerd
Triangle
Washington Post, Friday, 1 March 1985
(Page A-17)
CHARLES A. BOWSHER
w ~~ sees violation of Cematitatlen
GAO Chief Assails
Reagan's Stance
On did Protests
Comptroller General Charles A.
Bowsher, yesterday accused Pres.
4dent Reagan of violating the Con-
atitution by defying a federal law
designed to strengthen the General .
Accounting Office's rate in handling .
bid protests.
-The 1984 Competiition In Cott-
. '.?tmoting Act gave the GAO author-
ity.to bold up a federal contract if a
valid bid protest was on file with
government auditors. The Reagan
administratiop views that provision
as unconstitutional, and last year
the JusticeDepart'eat and the Of
rice of Management and Budget or-
dered agencies 16 ignore it.
'Yesterday, id testimony -before
the House Govebunent Operations
subcommittee on legislation and
national seaaity, towsher weighed
into the simmering controversy Wy
contending that "it.is the president
who has violated the separation of
powers doctrine by defying a duly-
passed act of the Congress through
the actions of the attorney general
and the director of OMB."
:The administration has argued
tl0t the comptroller general, who
bads the GAO under a fixed 15-
year term, is a representative of the
lejpslatiye branch and thus cannot
.b up contracts awarded by She
.tcutive branch. Bowaher argued
.t4;tl be is an officer of the United
SSrtes, appointed by the'.president
and confirmed by the Senate, and
sad-subject to the 'whims" of con-
g~ssior al intluenoe.
~ieobedienoe of the law is itself
a smatter of -serious ,constitutional
significance' . Boivaher testified.
We cannot hmd any busttication for
the sctioo . taken .to de Mately
avoid the law in this case'
Lowsher's position was atrp.
potted at the .bearing by several
ogpstitutional law authorities, in-
C-8 a representative of the
merican Bar Assoaatiom. . .
4wgene Greamnan. a University
~lortb . Carolina Inv professor,
? said that the administration's action
legintitutes a willful disobedience
of the will of Congress. In our con-
stitutional system.af government,
such i refusal by the -executive to
"take care that the laws be faithfully
executed' cannot and .must not be
tolerated' .
The subcommittee has scheduled
a second bearing next week to bear
testimony from OMB Director Da-
vid A. Stockman and Attorney Gen-
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UNITED STATES GENERAL ACCOUNTING OFFICE
FOR RELEASE ON DELIVERY
EXPECTED AT 10:00 A.M. EST
THURSDAY, FEBRUARY 28, 1985
STATEMENT OF
CHARLES A. BOWSHER
COMPTROLLER GENERAL OF THE UNITED STATES
BEFORE THE
LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE
OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
Mr. Chairman and Members of the Subcommittee:
We are pleased to appear here today to discuss the
position of the President and the Department of Justice
that two provisions of the Competition in Contracting Act,
Pub. L. No. 98-369, are unconstitutional, and the action of
the Executive Branch in not executing the two provisions.
The challenged provisions are included within the
"procurement protest system" established by section 2741 of
the Act. Both represent additions to the bid protest
procedures formerly conducted by the General Accounting
Office, and are designed to make hid protests a more
effective mechanism for enhancing competition. The first
requires agencies in many cases to suspend or "stay" a
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protested procurement action until'the Comptroller General
issues a decision on the protest. The second authorizes us
to award attorneys fees, as well as bid and proposal
preparation costs.
We strongly disagree with the opinion of the Attorney
General that these provisions of the Act are unconstitu-
tional. The Attorney General's view is that the Act vio-
lates the separation of powers doctrine by authorizing the
Comptroller General both to lift the suspension of procure-
ment action by issuing a protest decision, and also to
award costs. According to the Attorney General, the
Comptroller General is solely an agent of the Congress and
can, therefore, only perform those functions that the
Congress may delegate to its committees. The Attorney
General's opinion is premised upon an erroneous
understanding of the nature of the Office of the
Comptroller General and the authority which he may
exercise. The Attorney General's opinion is also based
upon a misunderstanding of the operation of the protest
system established by the Act, and its effect upon
Executive Branch operations.
We also believe that, in this case, it is the
President who has violated the separation of powers doc-
trine by defying a duly passed Act of the Congress through
the actions of the Attorney General and the Director of
OMB.
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I. Background
Before addressing the Attorney General's view in more
detail, I think it would be useful to indicate briefly why
the disputed provisions were passed. An interested party
may protest a violation of a procurement statute or
regulation to the Comptroller General. Section 2741 of the
Competition in Contracting Act codifies and strengthens the
bid protest system which has been operated by the General
Accounting Office for over 60 years, ever since GAO was
established.
In order to insure prompt resolution of protests, the
Act provides deadlines designed to achieve a decision
within 90 working days.
Also, the Act requires agencies to suspend protested
procurement actions pending the Comptroller General's
decision, except when an agency determines that urgent and
compelling circumstances which significantly affect the
interests of the United States will not permit waiting.
Finally, in order to provide some meaningful relief to
protesters in cases where remedial procurement action is
not practical, GAO has awarded bid and proposal preparation
costs in appropriate cases. The Act expands this relief by
providing that the Comptroller General may award to
successful protesters their costs of pursuing a protest as
well as the traditionally-awarded bid and proposal costs.
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The Act carefully balances competing public
interests. Prospective contractors have an inexpensive and
expeditious forum in which their claims.of illegal
exclusion from the government's business may be heard. The
existence of a forum for such claims, made much more
effective by the stay of contract performance in many
cases, will, as the Congress intended, help insure that
agencies comply with the mandate of full and open competi-
tion. At the same time, provision is made to eliminate
interruptions in meeting the federal government's pressing
needs for goods and services in appropriate cases.
II. Opinion of the Attorney General
Let me now turn to the objections of the Attorney
General.
On November 21 the Attorney General informed the
Congress of his decision that federal agencies should not
execute two provisions of the new protest system. The
Attorney General argues that the Comptroller General is
solely an agent of the Congress, and, that as such, he may
only perform the functions which the Congress may delegate
to a committee. In support of his contention, the Attorney
General. points to two Reorganization Acts which describe
the Comptroller General as being "a part of the legislative
branch," and to the Accounting and Auditing Act of 1950
which describes the Comptroller General as "an agent of the
Congress." The Attorney General also points to statutory
limitations on the President's power to remove the
Comptroller General as being significant.
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In the Attorney General's view, the Comptroller
General may not take any action which binds individuals and
institutions outside of the Legislative Branch. To do so
would be to perform an "executive" function. This includes
the Comptroller General's statutory authority to lift the
"stay" of procurement actions by issuing a protest deci-
sion, which the Attorney General characterizes as "the
power to dictate when a procurement may proceed." It also
includes the award of the costs of pursuing a protest and
bid and proposal preparation costs.
III. Nature of the Office
I am firmly of the view that the Comptroller General
of the United States is not solely an agent of the
Congress, but rather serves as an officer of the United
States. As such, the Comptroller General may exercise the
authority given him under the Competition in Contracting
Act wholly consistently with the Constitution.
Since creation of the Office of the Comptroller
General in 1921, Comptrollers General have performed a
variety of duties to serve the needs of the Congress. Such
activities include our traditional audit reports, staff
papers and studies, our responses to requests for views on
proposed legislation, and legal opinions on matters which
do not involve our account settlement responsibilities.
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Other responsibilities affect directly the Executive
Branch agencies and provide assurance that funds are fully
and accurately accounted for and expended in a manner
authorized by law. One example is the Comptroller
General's responsibility to audit and settle accounts.
Another is the settlement and adjustment of claims by and
against the United States. And still another is
n of government-wide accounting and internal
control standards.
However these various functions may be classified, one
aspect of the Office of the Comptroller General is clear.
The Comptroller General by statute is, in fact, appointed
in the manner provided in the Constitution for appointment
of "Officers of the United States." It is true that once
appointed by the President after Senate confirmation he
does not serve at the pleasure of the President but,
rather, serves for a fixed term of 15 years.
The Attorney General argues that the security of the
Comptroller General from removal by the President
necessarily renders him a part of the legislature. Yet
there are other officers of the United States for whom
Presidential removal is significantly circumscribed without
affecting their status. And the fact is that the
Comptroller General cannot be removed at the whim of the
Congress either. The Congress can remove the Comptroller
General by joint resolution (which requires a majority vote
of both chambers and the signature of the President), but
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only after notice and hearing, and only for one or more of
five specified reasons: permanent disability,
inefficiency, neglect of duty, malfeasance, or conduct
which is felonious or involves moral turpitude. Congress
can also remove the Comptroller General by impeachment, as
it can remove any officer, but again only through lengthy
procedures designed to ensure due process and fairness and
only for certain limited reasons: treason, bribery or
"High Crimes and Misdemeanors."
In short, the provisions governing removal of the
Comptroller General support, rather than contradict, his
status as an officer of the United States. This status of
the Comptroller General is in no way affected by references
in the 1945 and 1949 Reorganization Acts to the General
Accounting Office as "a part of the legislative branch of
the Government." By characterizing the Comptroller
General, the head of the GAO, as part of the Legislative
Branch, the Congress did nothing more than restrict the
ability of the President to place him in a subservient
status through the device of a reorganization plan. In
1932, President Hoover had proposed a transfer of GAO to
the Bureau of the Budget. Thereafter, GAO was excluded
from Presidential reorganization authority, including the
1945 and 1949 Reorganization Acts. The Attorney General
errs in attributing constitutional significance to
statutory classifications of the Comptroller General.
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IV. The Comptroller General and the
Separation of Powers
The Comptroller General's entire duty under the
Competition in Contracting Act is limited to three basic
.t,4airt/r-f~
actions: the of procedural rules, the
issuance of recommendations pursuant to specific findings,
and the award of costs based upon. specified legal
determinations. There is no doubt that these are precisely
the type of duties that the Comptroller General has
exercised since 1921. Under the Act, the Comptroller
General is required to give advisory opinions regarding the
legality of procurement actions, which will presumably bind
him in the audit and settlement of accounts, just as he has
always done under his account settlement authority. He is
empowered to award bid and proposal preparation costs and
the costs of pursuing protests, just as he traditionally
granted bid and proposal costs under his claims settlement
authority.
The Attorney General argues that the authority to
award costs and the "stay" provisions of the Act involve
the exercise of executive powers which can only be
exercised by an officer under direct control of the
President. Certainly, there are officials whose purely
executive jobs are so related to the President's consti-
tutional duties that operation of our form of government
requires the official to be directly responsible to the
President. However, the award of costs to protesters
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cannot reasonably be viewed as requiring the President to
have direct control over the official who performs the
function. The authority to award costs based upon a
determination that a procurement action violated a statute
is not assigned by the Constitution to the President, and
exercise of that authority by an officer of the United
States cannot reasonably be said to interfere with the
President's performance of his constitutional duties.
Similarly, the "stay" provisions do not place purely
executive powers in the hands of the Comptroller General.
The Act merely requires the procuring agency, if it can do
so consistently with the national interest, to "wait and
see" what the Comptroller General recommends before
proceeding. The agency is not required to wait at all if
it determines that performance would be in the best
interest of the United States or that delay would
"significantly affect interests of the United States." The
"stay" provisions can hardly be said to involve one branch
assuming the power to control another branch. Moreover,
the "stay" provision cannot "disrupt the proper balance
between coordinate branches" or "coerce" the constitutional
office of the President by delaying previously authorized
executive action, since the "stay" is only implemented if
the Executive Branch itself finds delay consistent with the
interests of the United States.
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V. Constitutionality of Executive Branch Actions
Finally, we believe that the President, not the
Congress, has violated the separation of powers doctrine.
Upon signing the Act, the President stated that he was
instructing the Attorney General to inform executive
agencies how to comply with the Act consistently with the
Constitution. As I have discussed, pursuant to this
instruction the Attorney General directed agencies not to
comply with two provisions of the Act.- The Director of
OMB, in turn, issued a bulletin specifically providing the
same direction to all executive agencies.
Disobediance of a law is itself a matter of serious
constitutional significance. The President's consti-
tutional duty is to "take care that the laws be faithfully
executed." We cannot find any justification for the action
taken to deliberately avoid the law in this case.
The Competition in Contracting Act imposes few limita-
tions upon executive action in a field long-recognized to
be a proper concern of the Congress, contracting by the
federal government. The disputed "stay" provision can he
avoided by executive agencies when required by the pressing
needs of the United States, and the payment of compensa-
tion or damages to private claimants cannot reasonably
be claimed to have major constitutional significance.
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The Comptroller General has exercised statutory duties
similar to those providedhe Act since 1921, and the
Attorney General.cannot point to one judicial decision
holding that those duties violate the separation of powers
doctrine. In fact, the absence of decided case law
supporting the Attorney General's constitutional opinion is
a strong argument that, in this case, the Constitution
requires the President to uphold the law.
It is significant that the actions of the Attorney
General and the Director of OMB, which constitute lawmaking
by the Executive Branch, were unwarranted based upon the
Attorney General's legal opinion. The Attorney General
recognized in his opinion the power of the Congress to
enact a law providing for suspension of a procurement for
90 days following a protest. He was only concerned about
the Comptroller General's authority to release a suspended
procurement by issuing a decision, and the authority to
delay a procurement for more than 90 days following a pro-
test. In order for agencies to comply with the law in a
manner consistent with the Attorney's General's opinion,
they need only have been directed not to proceed with a
protested procurement action for 90 days even if the
Comptroller General issues an earlier decision,and to end a
stay after 90 days if a decision or satisfactory
justification for delay has not been issued by the
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Comptroller General. Instead, OMB eliminated a provision
of the Competition in Contracting Act that is central to
enhancing the ability of the bid protest system to increase
full and open competition for contracts. We do not believe
that the Constitution empowers the President and his sub-
ordinate officers to undertake this revision of the
Competition in Contracting Act.
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Before the
HOUSE COMMITTEE ON GOVERNMENT OPERATIONS
February 28, 1985
STATEMENT OF EUGENE GRESSMAN*
on
Executive Refusal to Execute Certain Provisions
of the Competition in Contracting Act of 1984
On December.17, 1984, the Director of the OMB, acting on the
advice of the Attorney General of the United States, issued a directive
to all heads of Executive Departments and Agencies to disregard certain
bid protest provisions of the Competition in Contracting Act of 1984.
That directive was premised on the Attorney General's conclusion that
two provisions of that Act "are unconstitutional because they purport to
authorize the Comptroller General to exercise Executive authority in
violation of the principle of Separation of Powers."
In my judgment, this directive constitutes a willful disobedience
of the will of Congress, as expressed in the two bid protest provisions
of this Act. In our constitutional system of government, such a refusal
.by the Executive to "take care that the Laws be faithfully executed"
cannot and must not be tolerated. The bases for my judgment in this respect
may be summarized as follows:
(1) Whatever the merits of the Executive's constitutional doubts
about the statutory provisions in question, the central fact is that the
Constitution nowhere.exc.uses the President from fulfilling his vested
obligation (Art. II, Sec:. 3) to."take care that the Laws be faithfully
executed" because of any sincere.doubts he may have as to the validity
* William Rand Kenan Professor of Constitutional Law, School of
Law, University of North Carolina, Chapel Hill, N. C. 27514. Also Special
Counsel to the U. S. House of Representatives since 1976 in the "one-House
veto" litigation, including I.N.S. v. Chadha, 462 U.S. 919 (1983).
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of... the- laws- that. are his : to execute. "It is a. startl i.ng noti.on," Raoul-
Berger-has written, that a President "may refuse to execute a law on the
ground that it is unconstitutional. To wring from a duty faithfully to
execute the laws a power to defy them would appear to be a feat of splendid
illogic." R. Berger, Executive Privilege: A-Constitutional Myth 306 (1974).
(2) Put differently; once.a bill has passed through all the con-
stitutional forms of enactment and become a law, perhaps even over a
presidential veto grounded on constitutional objections, the President
has no option under Article II but to enforce the measure faithfully. The
Constitution simply does not give the President "the power to defeat the
will of the people or of the legislature as embodied in law." 3 W. Willoughby,
The Constitutional Law of the United States 1503 (2d ed. 1929). Or, as
Professor Corwin has written, "once a.statute has been duly enacted, whether
o.ver.his protestor with. his approval, he [the President] must promote its
enforcement." E. Corwin,. The President: Office and Powers 79 (3d ed. 1948).
(3) The President's Article II duty of executing laws, as Justice
Holmes once wrote, "is a duty that does not go beyond the laws or require
him to achieve more than Congress sees fit to leave within his power." Myers_
v. United States, 272 U.S. 52, 177 (1926.)(Holmes, J., dissenting). In other
words, if the execution. of a law is to be faithful, it must be faithful to
precisely what Congress has. written .into the law, no more and no less. But
once the Executive oversteps the bounds.of faithfulness, either by adding to
.or subtracting from what Congress has provided, then the separation of powers
equilibrium established by our constitutional system tilts dangerously toward
the Executive Branch.
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(4) : ?.' The- Supreme ... Court's ruling = i n :Youngstown-- Co. v. Sawyer,
343 U.S.. 579 (1952), teaches that when the President tries to do more.
than whata statute permits him to do,..the President becomes a lawmaker,
.a status foreign to the constitutional division of power-. Certainly, as
the Court there:;said, "the President's power to see that the laws are
faithfully executed-refutes the. idea that he is to be a lawmaker." 343
U.S. at 587. Rather, the Constitution places the lawmaking function
exclusively in the hands of Congress, i.e-., the function to "make laws
which the President is to execute." Id. Thus the-power of execution
does not-include the power of affirmatively adding to what the legislative
body has provided.
(5) By the same token, the Executive's power of execution does not
include a power to ignore or disobey what Congress has provided. To permit
the President to disobey or to refuse to execute a. portion of a statute
is to engage in negative Executive lawmaking, as happened in the impoundment
crisis of a decade ago. Such refusal to execute, be it due to constitutional
doubts about.the statute or otherwise, amounts to a partial repeal.of the
statute -- a repeal that can constitutionally be effected only through the
normal legislative processes. The principles enunciated in Youngstown Co. v.'
Sawyer.would seem to bar such negative lawmaking by the-Executive.. That
proposition would seem to be at the heart of Justice Rehnquist's statement,
written in 1969 as an Assistant Attorney. General commenting on the President's
impoundment authority:
It is in our view extremely difficult to formulate constitutional
theory to justify a refusal by the President to comply with a
Congressional directive to spend. It may be argued that the
spending of money is inherently-an executive function, but the
execution of any law is, by definition, an executive function
and it seems an anomalous proposition that because the Executive
Branch is bound to execute the laws, it is free to decline to
execute them.
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(6) The ultimate irony here is that the Executive's protest that
Congress has sought to authorize the Comptroller General to exercise
Executive authority is raised by means of an Executive invasion of the
legislative powers of Congress -- by effecting a "non-execution" repeal
of the challenged provisions of the Competition in Contracting Act. The
Executive is attempting to read Article II "as giving the President not
only the power to execute the laws but to make [and unmake] some." Youngs-
town Co. v. Sawyer, 343 U.S. at 633 (Dougl.as, J., concurring). And the
Executive is seeking to use.Article II not only as a vehicle for executing
legislative powers but as a mechanism for testing the constitutionality of
the statutory provisions. There are certainly better methods of securing
judicial review of those provisions than by an Executive violation of the
separation of powers doctrine and by an Executive refusal to "take care that
the [Competition in Contracting Act] be faithfully executed."
(7) Finally, the foregoing. sentiments do not imply that the President
is without power to make his own assessment of the constitutionality of
statutes, either before or after final enactment. And we have witnessed
situations, such as the "one-House veto" litigation, where the Executive has
simply refused to defend the constitutionality of a statute when judicial
review has been properly instituted. But that is a far cry from saying that
the Executive may express his constitutional displeasure with a duly enacted
statute by ignoring or refusing to execute it in the first instance. Such
inaction by the: Executive strikes at the very fabric of the separation of
powers doctrine. Congress should take prompt action to repair the jagged
tear in that fabric created by the OMB's directive of December 17, 1984.
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STATEMENT BEFORE THE GOVERNMENT OPERATIONS COMMITTEE OF THE
UNITED STATES HOUSE OF REPRESENTATIVES ON FEBRUARY 28, 1984
BY SANFORD LEVINSON, PROFESSOR OF LAW,
UNIVERSITY OF TEXAS LAW SCHOOL
Mr. Chairman, my name is Sanford Levinson, and I teach
constitutional law at the University of Texas Law School in
Austin, Texas. I am also the co-editor, with Professor Paul
Brest of the Stanford Law School, of a casebook on
constitutional law, Processes of Constitutional
Decisionmaking. I very much appreciate this opportunity to
testify today on a topic that is one of the central concerns of
our book and that I consider perhaps the most most important
single riddle of American constitutional theory--the duty of
non-judicial public officials to engage in independent
constitutional analysis.
Today's hearing, of course, arises from the refusal of the
Reagan Administration to enforce certain provisions of the
Competition in Contracting Act of 1984 contained in the Deficit
Reduction Act of 1984. The rationale given for the refusal to
obey the Act is its putative invalidity under the
constitutional command that the three great branches of
government remain separate. I shall first discuss the
arguments concerning these provisions and then go on to the
issue of even greater importance, which is the Executive's duty
in regard to statutes, passed by Congress and signed by the
President, that the Executive branch nonetheless considers to
be unconstitutional.
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I. The Constitutionality of the Deficit Reduction Act of 1984
I will not rehearse the specific provisions of the Act,
since they are well known to this committee. Suffice it so say
that the Department of Justice has consistently argued that the
the Constitution prohibits participation by the Comptroller
General in the process of deciding on the validity of protests
regarding the award of federal contracts. In particular, the
Department emphasizes the role of the Comptroller General as a
"legislative" official, indeed "an arm of the legislature," M.
Steinthal & Co. v. Seamans, 455 F.2d 1289, 1305 (D.C. Cit.
1971), quoted in Delta Data Systems Corp. v. Webster, 744 F.2d
197, 201 ft. 1 (D.C. Cir. 1984). Although the Comptroller
General is appointed by the President, with the advice and
consent of the Senate, and is therefore clearly an "Officer of
the United States," Buckley v. Valeo, 424 U.S. 1, 128 ft. 165
(1976), he is removable by joint resolution of the Congress,
among other procedures. According to the Department,
therefore, this basic accountability to the Congress disables
the Comptroller General from engaging in essentially executive
duties. Principal reliance is placed on the most recent cases
of the United States Supreme Court that have considered the
basic theory of separation of powers, Buckley v. Valeo, supra,
and INS v. Chadha, 103 S.Ct. 2764 (1983).
Constitutional law is something of a minefield, especially
these days, and only the foolhardy would speak overconfidently
about what the Constitution does and does not tolerate. Of no
area is this more true than separation of powers, a term which
does not appear as such in the Constitution but which
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nevertheless has informed our basic sense of governmental
structures since 1787. That caveat being stated, I must
nevertheless also state that I have little problem in viewing
the specific provisions as perfectly acceptable under the
Constitution.
Buckley v. Valeo is, I think,. irrelevant to the present
controversy, since that case dealt clearly with the ability of
the Congress to appoint officials directly to the Federal
Election Commission. The Court unanimously held that such a
procedure violated the Appointments Clause of the Constitution,
which requires that appointments of officers of the United
States be made by the President, heads of departments, or
courts of law. Here, on the contrary, the appointment of the
Comptroller General meets the specific terms of the Clause.
The fact that the Congress can, in theory, remove the
Comptroller General by joint resolution is, I believe, not
sufficient to change the analysis. One must begin
realistically by noting that no Comptroller General has been so
removed, and it boggles the mind to suggest that such a
momentous step might be taken because of Congressional
displeasure with a decision of the Comptroller General in
regard to the awarding of a federal contract. It may be true
that the Comptroller General is, in some sense, ultimately more
"accountable" to the Congress than to the President, but this
does not, I believe, so distort the relationship between the
two branches that the Constitution must intervene to stifle the
procedures called for by the Act.
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The essential problem raised by almost all of the modern
separation of powers cases, of course, is what has come to be
called the modern administrative case. Indeed, for almost a
half-century now, we have become used to references to a
"fourth branch of government," the bureaucracy and
administrative agencies, that have radically transformed an
earlier understanding of a more simple tripartite structure of
government.
It is obvious to any observer that these agencies are
quasi-legislative insofar as they make specific regulations
often based on extremely general commands of Congress to act in
the "public interest"; they are executive insofar as they
enforce their regulations; and they are quasi-judicial as well
insofar as they have increasingly elaborate systems of
administrative courts to adjudicate controversies generated by
the administrative scheme. I have significant difficulty
differentiating the Comptroller General from any of the other
administrative agencies, at least at the constitutional level.
The Attorney General relies importantly on the Chadha case,
which invalidated the so-called "legislative veto" by which one
House of Congress could affect the legal rights of government
officials or private persons outside of the Legislative branch
by invalidating a decision of an executive or administrative
official. The Supreme Court, by a 7-2 vote, considered this to
be "lawmaking," and it went on to say that "[i]t is beyond
doubt that lawmaking was a power to be shared by both Houses
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and the President," 103 S.Ct., at 2782, and not to be delegated
to a single House of the Congress.
I confess that I have immense difficulties viewing the
actual decisions envisioned by the Comptroller General as
"lawmaking," unless one says that every review of a federal
contract results in equal "lawmaking." That is, I presume that
no serious constitutional argument could be directed at a
congressional decision to establish a new administrative agency
that would review all federal contracts and do precisely what
the Comptroller General is asked to do under the Deficit
Reduction Act. The one and only concern is whether or not the
Comptroller General, different in certain ways from the typical
administrative agency, can engage in such otherwise
uncontroversial activity.
Presumably this is the point raised by the Department of
Justice in its citation of the 1928 case Soringer v. The
Philippine Islands, 277 U.S. 189, and its definition of
"legislative power" as "the authority to make laws, but not to
enforce them or appoint the agents charged with the duty of
such enforcement." (The latter part of the clause, dealing
with appointment, is inapplicable because it is, of course, the
President who appoints the Comptroller General.) The
Department rightly argues that the Comptroller General is
charged with certain enforcement tasks under the Contracting in
Competition Act. But I do not believe that the Comptroller
General, however much in some ways part of the legislative
branch, is so implicated with the legislature as to call into
being the invalidity of an act of Congress.
-5-
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I believe that this concern expressed about legislative
enforcement of its own laws requires a deeper elaboration of
the Chadha case beyond rather simplistic notions of separated
powers. Why, that is, ought one be concerned about the
legislative veto? Why ought one not be concerned about the
role played by the Comptroller General?
Chadha dealt with the direct intervention by Congress into
decisionmaking by the executive branch. Chief Justice Burger,
writing for the majority, emphasized that the historic roots of
separating the legislature from the enforcement of the law lay
in a concern about the potential for political corruption. A
fear that "special interests could be favored at the expense of
public needs" requires that enforcement be protected from the
"strong passions and excitements" that sometimes characterize
the legislature, at 2783. Less ominously, one might simply say
that the process of law enforcement and administrative
rulemaking should, as much as possible, be distanced from the
concerns of persons concerned about their imminent campaigns
for re-election. Law enforcement, which should transcend
partisan political considerations, should indeed be removed
from the legislature. I think it is hard not to be sympathetic
with such concerns and to wish to read them into the
Constitution as a protection against tyranny. This scarcely
requires, however, that one accept the justice Department's
view in the instant case.
I should admit, incidentally, that I am unpersuaded by the
sweep of Chief Justice Burger's opinion; instead, I believe
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that Justice White stated a much more generally defensible
view, even though, in the specifics of Chadha, I have
considerable sympathy for Justice Powell's focused and precise
invalidation of the specific legislative act under
consideration. Still, I don't think that one must reject the
majority opinion in order to find the Competition in
Contracting Act of 1984 constitutional.
The Department of Justice takes special note of the fact
that a panel of the Court of Appeals for the District of
Columbia recently cited Chadha for the proposition that "there
might be a constitutional impediment" to giving binding effect
to determinations of the General Accounting Office. Delta Data
Systems, supra, at 201 ft. 1. The Court, however, did not cite
any specific aspect of Chadha, and, with all due respect, I
think that the present circumstances are easily distinguishable.
The direct intervention by Congress that was so patent in
Chadha--and is the central concern of those who emphasize the
separation of legislative from executive power--is totally
absent under the procedures set out by the Act. The
Comptroller General of the United States and the General
Accounting Office are scarcely handmaidens of specific
legislators. An appointee of the President, the Comptroller
General has in fact much more independence than the typical
member of a federal agency, whose term of office expires far
short of 15 years and who may constantly be worried about being
reappointed by a President. Indeed, I am not aware that any
federal officials beyond judges, with their lifetime
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appointments, have such secure tenure as the Comptroller
General. I believe that this single fact exemplifies the
weakness of the position taken by the Department of Justice and
would lead a court to a far different conclusion than that
reached in Chadha.
Indeed, the real problem with extending Chadha's holding in
the way required by the Department's analysis is that it would
call into account the constitutional validity of the entire
administrative State as we know it. This, of course, was the
central concern expressed by Justice White in his lengthy
dissent. A simplistic view of the government as consisting of
three branches just does not come to terms with the fourth
branch and its mixture of functions. Because of the sweep of
some of Chief Justice'.s language, one cannot dismiss the
Department's view as "frivolous," but I find it almost
impossible to believe that a majority of the United States
Supreme Court would embrace a view that would require judicial
intervention and "imperialism" of dazzling proportions.
II. The Duty of the President to Enforce a Statute Passed by
the Congress (and Signed by the President)
Does the President of the United States have the duty to
engage in independent constitutional analysis while conducting
his office? Stated this way, the answer is clearly yes. The
President takes an oath of office pledging that he will
"preserve, protect and defend the Constitution of the United
States." Just as John Marshall derived from his oath of office
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the principle that a court need not enforce a congressional
statute deemed to violate the Constitution, so can the
President easily argue that he too is prevented from enforcing
an unconstitutional statute. Indeed, it would be paradoxical
to argue that the President does have the duty to enforce an
unconstitutional statute. The question, however, is not that
simple. Instead, I think that we must ask first what
procedures the President is required to go through when making
such a determination and secondly if there are specific
categories of laws where we might be more or less willing to
trust Presidents to engage in such analysis.
As this very controversy illustrates so well, the President
is not the first person to consider the constitutionality of
the Competition in Contracting Act. This Congress has also
considered the question, and therefore the correct way of
beginning our analysis is to ask how the President must
structure his response to the Congress.
The Constitution itself provides one clear answer: The
President can veto legislation he believes to be
unconstitutional. Even here, I might point out, there is some
question as to the freedom a President ought to give himself to
challenge a congressional judgment. The first elaboration of
the issue came up during the consideration in 1791 by George
Washington of the bill establishing the First Bank of the
United States. Thomas Jefferson, the Secretary of State, wrote
an opinion attacking its constitutionality. That opinion
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included a remarkably interesting paragraph, however, that
provides room for thought even today:
It must be added, however, that unless the President's
mind on a view of everything which is urged for and
against this bill, is tolerably clear that it is
unauthorized by the Constitution; if the pro and the
con hand so even as to balance his judgment, a just
respect for the wisdom of the legislature would
naturally decide the balance in favor of their
opinion. It is chiefly for the cases where they are
clearly misled by error, ambition, or interest, that
the Constitution has placed a check in the negative of
the President. (Quoted in Brest and Levinson, pp.
14-15.)
As I read this, it suggests that the President should defer
to congressional judgment unless he is clearly convinced that
the Congress made a mistake. On the one hand, after all, we
have the judgment of a majority of what are now a total of 535
legislators, who also take oathes to support, protect, and
defend the Constitution; on the other is a single individual
who, whatever his personal good faith, is trying to set aside
the congressional judgment.
If Jefferson was willing to argue that a President should
be cautious even in vetoing a bill on constitutional grounds,
in spite of the clear allocation of such a power by the
Constitution, how much more would he wish the President to be
absolutely certain of his position before disdaining to enforce
a statute that was not vetoed. A rough analogy can be drawn to
some standard approaches toward the problem of judicial review.
Going back to John Marshall, the strongest arguments for
the judicial invalidation of congressional statutes occur in
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contexts where the meaning of the Constitution appears
absolutely clear. In Marbury v. Madison itself, Marshall,
falsely in my opinion, argued that Article III could be
interpreted only one way. Where genuine debate over the
meaning of the Constitution is possible, however, he seems to
suggest that the courts should accept the congressional
resolution.
Modern constitutional theorists, who are generally inclined
to find more ambiguity throughout the Constitution than did
Marshall, are likely to argue that judicial invalidation should
occur only when there is reason to believe that Congress has
acted in an especially unfair way. Emphasis is placed by such
theorists, as well as many of the decided cases of the Supreme
Court, on such acts as closing the political process itself to
those with dissenting views or passing legislation that
discriminates against historically disfavored minorities.
Otherwise, the principles both of majority rule and respect for
the almost inevitable ambiguities revealed by close textual
analysis dictate deference to the congressional judgment.
The principles that counsel a certain caution by courts
before striking down legislative enactments might well work as
well to provide at least some kind of barrier to precipitate
presidential action, especially in the absence of the use of
the veto power granted the President under the Constitution.
Indeed, what President Reagan is trying to do here is establish
a de-facto post-hoc line item veto, albeit one that is
constitutionally based.
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I confess that I have considerable sympathy for the
position that the President might be authorized under the
Constitution to veto specific sections of a statute on the
grounds that they are unconstitutional, as opposed merely to
his finding them unwise policy. But, of course, President
Reagan did not exercise his constitutional authority to veto
legislation and thus give Congress a chance to override.
Instead, he is seeking to establish a far more extensive power,
one which one give him the ability to sign legislation and
then, without giving the Congress an opportunity to override
his views, simply refuse to enforce the legislation that he
himself had signed.
From my perspective, it would have been far better had the
President asserted a line item veto authority, constitutionally
based, than to assert a far more widereaching authority that
denigrates Congress' essential role in the constitutional
structure. To be sure, an assertion of the type I am
suggesting would be unprecedented, but it would be scarcely
less so than the one actually being made. It would also be far
more in keeping with the spirit of our institutions that the
unilateral decisionmaking revealed here.
It is only fair to point out, though, that even the
adoption of a veto practice described above would not speak to
the problem of a President who genuinely believes that a
measure signed by a predecessor was unconstitutional. It is
hard to argue that one President ought to be able to bind
another on matters of constitutional analysis any more than one
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group of Supreme Court justices can genuinely bind a successor
group.
Still, it is necessary to recognize that we do not have as
an operative constitutional practice the line item veto of the
type I am describing. Returning to the reality of modern
politics, we must take into account the full complexities of
modern legislation and the factors that make the present veto
practice inadequate as a full protection against putatively
unconstitutional legislation.
A reality of modern legislative practice is that, as with
the Deficit Reduction Act, legislation is often "omnibus,"
containing many different acts presented on an all-or-nothing
basis to a President. As with the most famous example, where
Congress during World War II attached to a defense
appropriations bill a rider having the effect of firing three
federal employees suspected of being subversives, a President
might have to sign a bill because non-signature would generate
a disaster. What is a President supposed to do then? Is his
only course to enforce a statute that is viewed as
unconstitutional?
One good answer, of course, is yes, especially if
enforcement of the statute in no serious sense involves issues
of personal liberty or other important individual rights. I
shall return to this point below, but let me assume for the
moment that the President should be vigorous in defending his
view of the Constitution in all of its areas, including
separation of powers. Still, the procedure by which such
review takes place is vital.
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If there is one thing we can be sure of, it is that Ronald
Reagan has not personally studied the relevant legal materials
in order to make an independent determination of the meaning of
his oath. We are obviously talking, that is, of the
institutionalized Presidency rather than decisionmaking by a
specific President. What kind of institutionalization should
we require in order to tolerate, even in theory, presidential
repudiation of statutory commands?
Let me begin my answer with a negative: We should not
tolerate a process whereby a politically appointed assistant
attorney general writes a memorandum that is designed to accord
with an already adopted position of the President. If the
executive branch is to take on some of the attributes of a
court, a development which I would applaud in many ways, it
should seek out the most disinterested member of the Department
of Justice and demand of that official precisely the same
behavior that is required of a judge. To be specific, I would
suggest that presidential interposition should even be
thinkable if and only if the Solicitor General of the United
States delivers a published opinion stating that in his or her
opinion the congressional act under question violates the
Constitution of the United States. I want to emphasize that
this is a different test from one simply requiring that the
Solicitor General find that a "good faith" argument supports
the President's position or that he or she would be willing to
defend the President's position in court.
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The point, of course, is that the presidential activity is
designed to preclude judicial review, or at least to make
judicial review dependent on the fortuity of a claimant under
the Act having standing to be able to trigger judicial review.
If the Executive adopts such a posture, then we must require as
a minimum an internal procedure within that branch that pays
due heed to the values embraced within the oath of office.
At present the Solicitor General does not prepare official
opinions; that is the formal job for the Attorney General,
though they are actually prepared by the office of Legal
Counsel within the Justice Department. This, however, is a
development within the past thirty years. Before 1951, the
Solicitor General indeed was responsible for preparing
opinions, and I strongly encourage this Committee to consider
reviving this role.
It does no discredit to the incumbent Attorney General to
note that the Solicitor General is almost always an unusually
distinguished lawyer, often with previous judicial or academic
experience. The Solicitor General is, of course, a
presidential appointee and is therefore accountable to the
President, but the office has an established tradition of at
least quasi-independence. One might well view the
deliberations of the Solicitor General as relatively
disinterested in a way that would be absent in regard to the
rest of the Department of Justice.
By no means would a ''ruling'' of the Solicitor General be
dispositive. Judicial review might well be possible, assuming
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proper standing, and the Solicitor General would have the
opportunity of presenting the argument to a court, but in the
interim we would at least be assured the highest level of
constitutional analysis that could be expected. One can have
little confidence that such a level has been manifested in this
instance.
I want to conclude by returning to the second point
mentioned earlier: Are we more willing to trust the President
in certain areas of the law instead of others? My tentative
answer is yes. That is, a President who refused to enforce
certain statutes on the grounds that they are significant
deprivations of individual liberties or fundamental public
values would be entitled to a measure of respect, especially if
the decisionmaking process prior to non-enforcement were the
one described above. I can easily imagine admiring a President
who refuses to indict individuals under a statute thought to be
unconstitutional, since an indictment can often be disastrous
to the individual involved. But here no issue of personal
liberty is present.
The issue that is presented--separation of powers--is one
where we might be least willing to trust independent
presidential decisionmaking, since there is no reason at all to
view the President as a genuinely disinterested party. He is
engaged in turf protection, not in the protection of
fundamental liberties. Of course, one might view Congress also
as an interested party and be disinclined to accept their view
as the last word. If one believes that the Constitution
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genuinely speaks to the issue of separation of powers, then it
is perhaps especially appropriate that the judiciary play an
umpiring role between the two branches, since it is the one
branch that can be viewed an disinterested in this battle over
turf.
In conclusion, let me congratulate this committee for
bringing to public attention an issue of the highest public
importance. The issue of federal contracting procedure is not
one designed to provoke public passion. But the underlying
issue--which was described in the 1960's as the "imperial
Presidency"--is back with us in spades, and one has only to
look througout the Reagan Presidency, whether in Central
America or the attempts to fabricate an official secrets act
out of whole cloth, to know that this is an Administration that
does not fundamentally respect the constraints of office. I
hope that the deliberations of this committee help to roll back
the amount of turf being claimed by this Administration.
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STATEMENT OF MARK TUSHNET,
PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER
My name is Mark Tushnet. I am Professor of Law at the
Georgetown University Law Center here in Washington. I have been
teaching constitutional law for the past ten years and have
written widely on constitutional law. In addition, I have
co-authored a casebook on the jurisdiction of the federal courts.
I would like to thank the Committee for inviting me to testify on
this important issue. Because time for preparation was short, my
remarks are somewhat abbreviated. I will submit a more detailed
statement to the Committee shortly.
As you know, there are two aspects of the problem before us.
First, are the relevant provisions of the Competition in
Contracting Act constitutional? Second, if the President
believes that they are unconstitutional, may he direct his
subordinates simply to ignore them? I want to begin with some
brief comments on the first issue, for I believe that its
analysis clarifies the precise nature of the second.
The President contends that two provisions of the Act are
unconstitutional. The first provision authorizes the
Comptroller-General to lift an otherwise automatic.stay on the
contracting process if he or she f.inds a bid. protest frivolous;
the second allows the Comptroller-General to. direct that,.
contracting agencies pay attorneys' fees to successful bid
protestors. These provisions are said to violate principles of
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the separation of powers by vesting executive or judicial
authority in an arm of the legislature.
This contention obviously turns on whether the
Comptroller-General is an arm of Congress. I take it for granted
that Congress could give an independent agency the powers
challenged by the President. For present purposes we can imagine
governmental agencies arrayed on a spectrum ranging from plainly
legislative agencies such as this committee through independent
agencies such as the Federal Trade Commission to obviously
executive agencies such as the bureaus of the Treasury
Department.
Where in this spectrum is the Comptroller-General located?
In particular, how similar is the Comptroller-General to an
independent agency? The relevant Supreme Court decisions, and
consideration of matters of principle, indicate that we must take
into account a number of considerations. One is the manner of
appointment. Here the Comptroller-General resembles the head of
an independent agency. Another consideration is whether
independence of substantial legislative or executive direction is
important to the sound functioning of the agency. In light of
the auditing tasks of the General Accounting Office, this too
points in the direction of independence.
However, other considerations suggest that the
Comptroller-General should be regarded as an arm of Congress.
The, cases emphasize congressional intent in :creating ::the agency., ...
and Congress appears to have wanted the Comptroller-General to be
its agent. Further, though Congress may limit the President's
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power to remove heads of independent agencies, it is not obvious
that it may do so as severely as it has done with the
Comptroller-General.
In my judgment the arguments supporting the view that the
Comptroller-General is not an arm of Congress, for purposes of
separation of powers analysis, are somewhat stronger than those
supporting the opposite view. But a contrary judgment is not
ruled out by the relevant precedents or by fundamental principle.
With that as background, I would like to turn now to the
second, and I believe more important, issue: What courses are
open to a President who believes that enacted legislation is
unconstitutional? Here I want to emphasize what dimensions of
the problem my prior comments have excluded. We are not faced
with a situation in which the President is refusing to enforce a
patently unconstitutional statute, nor one in which the
President's constitutional objections are patently frivolous.
Different and less difficult issues would arise in wuch
situations.
To analyze the present problem, it may help to.revert to the
fundamentals of the constitutional order. There is a tradition
in our history defending a version of a theory that I shall call
1\
here judicial supremacy. This version of the theory of. judicial
supremacy begins by maintaining that the courts are the ultimate
and authoritative expositors of the meaning of the. Constitution..
From. its.origins. in Marbury v. Madison through,..:it,s.:restatemenxs..
in Cooper v. Aaron and United States v. Nixon, to its most recent
appearance in Justice Powell's dissenting opinion last week in
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the Garcia case, this version of the theory has come to include
two additional propositions. First, it holds that it is improper
for a legislator or the President to act on interpretations of
the Constitution different from those offered by the Supreme
Court. Second, it holds that, because the courts are the
authoritative expositors of the Constitution, where the meaning
of the Constitution is uncertain it is improper for legislators
or the President to act so as to obstruct the adjudication of
those controverted constitutional questions.
Thus, on this version of the theory of judicial supremacy, a
member of Congress ought not vote against proposed legislation
solely because he or she believes it to be unconstitutional, at
least if some authority exists to support its constitutionality.
Nor may a President veto legislation solely on constitutional
grounds. Nor, finally, may a President refuse to enforce
legislation that he or she believes to be unconstitutional.
Under this version of the theory, the proper course of action is
to enact, sign, and enforce the legislation and submit the
constitutional questions to adjudication in the courts.
Although this version of the theory has some force in
extreme cases, of which Cooper v. Aaron
may be one, it has a
number of flaws that, in my judgment, make it unacceptable.
Before discussing them, I should note that, if one accepts this
version of the theory of judici..al.supremacy,, the President ,has
acted improperly..:i.n the. present si tuati.o.n..... Bu;t . this...ver.sion of
the theory seems at odds, first, with the common sense of the
matter. Members of Congress and the President take the oath to
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support the Constitution, and the President is required
faithfully to execute the laws of the United States, which surely
include the Constitution as supreme law. Those duties seem to
require that they be allowed to make independent judgments on
constitutional issues.
Second, the theory is inconsistent with much historic
practice. Of course members of Congress may refuse to vote for
proposed legislation on policy as well as on constitutional
grounds; a President may veto legislation for a similar mix of
reasons; and a President may direct his or her subordinates to
exercise appropriate prosecutorial discretion in refusing to
enforce legislation. The availability of these nonconstitutional
grounds for refusing to act obscures the fundamental issue. But
there are instances of refusals to act that are simply
inconsistent with this version of the theory of judicial
supremacy. The most celebrated is President Jackson's veto of
the rechartering of the Second Bank of the United States, which
he placed substantially (though not exclusively) on the ground
that Congress lacked the power to create a national bank
notwithstanding the Supreme Court's decision to the contrary in
McCulloch v. Maryland.
Finally, and perhaps least important overall, the theory has
difficulty dealing with situations in which the legislation, if
enacted, is unlikely to become the subject of adjudication..
Expanded notions of ...standing..reduce-:.the number:-of such
situations. But recent decisions suggest that many separation of
powers issues may never be adjudicated. If the problem at hand
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is one of them, the theory of judicial supremacy is of no help.
The theory of judicial supremacy can be set against an
alternative, which I will call a theory of competing authorities.
Under the theory of competing authorities, each branch may act on
its own interpretations of the Constitution. Legislators can
support legislation that the courts have declared or would
declare unconstitutional, or oppose legislation that the courts
have declared or would declare perfectly constitutional.
Similarly as to the President, who may enforce legislation in the
face of judicial declarations of unconstitutionality or refuse to
enforce it despite adjudications upholding the legislation. The
theory of competing authorities avoids most of the flaws of the
theory of judicial supremacy. It takes the constitutional oath
seriously, and is consistent with much historic practice.
However, the theory of competing. authorities itself has some
problems. It raises the specter of anarchy, as each branch acts
in a manner inconsistent with the constitutional views of the
others. The theory of judicial supremacy is attractive because
it offers a final resolution to controverted constitutional
claims. Further, the theory of competing authorities readily
degenerates into a theory of the supremacy of one or another
branch. Roughly, whoever is last in line gets the authoritative
say in the matter. If Congress and the President agree that a
statute is constitutional, the courts may block its enforcement.
If.. Congress believes. that., a.:stat.ute.. is,.con,.s.,t.i tut ional and..,.t.he...
President disagrees, a veto or a simple refusal to enforce will
prevent the courts from expressing their views. And if Congress
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believes that a proposal is unconstitutional, it will not be
presented to the President or the courts.
I believe that the theory of competing authorities remains
helpful in the analysis of the problem at hand, for two sets of
reasons. The first derives from the issue, mentioned above, that
the last in line has the authoritative say. Whether or not this
is regarded as a problem, it certainly suggests the importance of
identifying who is last in line. For example, should the
President be allowed to enforce a statute after the courts have
declared it unconstitutional? With respect to that problem,
should the courts or the President be regarded as the last in
line? Surely it is desirable to have some relatively clear
resolution of the question of who is last in line, so that the
government may continue to function without unnecessary
roughness.
In the present context, it would seem clear that the
President should be regarded as last in line, in the sense that
the President's signature is required before a bill becomes a
law. The decision to sign or veto a bill is, for these purposes
(and subject to the possibility of a veto being overridden), the
last point at which the President ought to be allowed to assert a
competing authority to interpret the Constitution. Otherwise the
President would have two or more bites at the apple--first in
deciding to sign or veto, then in deciding to, .comply or. no t
comply with the .statute,,. and. then . in ..decidi.ng. whether or . n_o.t. to .
comply with an adverse adjudication.
Giving the President two or more chances arguably enhances
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the executive's power beyond an appropriate level in the precise
situation before us, where the President refrained from
exercising his power to veto in the first instance. A veto
allows Congress to respond, and the required veto message forces
the President to articulate the constitutional.objecitons for
public consideration. As I will discuss in a moment, the veto
message has other attractive characteristics.
It may be said, however, that without a line item veto, a
President may be effectively forced to relinquish his or her
constitutional objections to a portion of a package of which the
President approves on the whole. I confess that I am not
terribly sympathetic to this argument. If the President's
constitutional qualms are serious enough, the package should be
vetoed; if they are not so serious as to lead to a veto, I doubt
that the President has a strong claim to remain last in line.
But in any event the President is not deprived of resources for
the future by the present enactment of a statute to which he or
she objects on constitutional grounds. The President remains
free to seek repeal of the objectionable provision, either by a
specific proposal or as part of a package that Congress will find
attractive. (This counter would be unavailable if the
objectionable provision somehow would produce a constant decline
in the President's power. I am hard-pressed to imagine such a
provision, and the ones at.issue today do not remotely fit that.
)
character.izat i on.
The President's continuing ability to seek repeal of
objectionable legislation answers another objection to treating
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the veto as the last point at which the President may assert a
competing authority to interpret the Constitution.. This
objection--again not applicable to the present issue--is that
today's president may object to legislation of which yesterday's
President approved. Treating the veto as the last point does not
disable the later President from seeking to persuade a later
Congress that the earlier enactment was unconstitutional. It
simply shifts the burden of securing remedial legislation;
instead of Congress trying to persuade the President that the
provision is an appropriate part of our law, the President must
try to persuade Congress that it is not appropriate.
The second set of reasons that the theory of competing
authorities is helpful goes deeper. The prospect of competing
authorities with no final arbiter can be welcomed rather than
feared, if the process of competition is healthy. Perhaps the
best metaphor is that of a responsible dialogue. Many provisions
of the Constitution suggest that a responsible dialogue, even
with a model of competing authorities, is desirable. For present
purposes the most relevant provision is the requirement that when
the President vetoes a bill, his or her objections be transmitted
to Congress. Analogously, the President may refuse to defend the
constitutionality of a statute when it is challenged in court,
offering the reasons for that refusal to the court, Congress, and
the public.
I.rt co:ntrast,;.refusing to comply with enacted legi:sla.tion
appears to thwart rather than promote a responsible dialogue.
There are no regular mechanisms by which Congress may respond to
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the President. To be sure, Congress may conduct hearings like
this one, hold administration nominees or proposals hostage,
refuse to appropriate money for the President's programs, and the
like. That is, Congress can force a dialogue to occur. Surely
it is better, though, to structure the process of constitutional
discussion in a less awkward and confrontational way. The veto
provision seems admirably suited to the task. Allowing the
President to refuse to enforce legislation does not.
To summarize briefly: Even if the President and Congress
have authority independent of each other, and of the courts, to
interpret the Constitution, their competing authorities must be
exercised through a process that promotes responsible discussion
of the constitutional issues. The best process available is the
ordinary process of approval by Congress followed by the
President's signature or veto. Indeed, I find it difficult to
think of good reasons why the President should be allowed simply
to disregard duly enacted legislation.
Thank you again for providing me with the opportunity to
discuss these issues with you. I am happy to answer any
questions you may have.
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