Ameron, Inc. v. U.S. Army Corps of Engineers

BECKER, Circuit Judge,

concurring in part:

I join in Parts II and IV of the majority’s opinion, and in its judgment. I disagree fundamentally with the majority’s analysis in Part III however, and write separately to explain my views.

I.

Central to the majority’s finding that CICA is not unconstitutional is its conviction that the Comptroller General occupies an indeterminate place in our constitutional scheme, belonging to neither the legislative, nor the executive, nor the judicial branch. Relying on United States ex rel. Brookfield Construction Co. v. Stewart, 234 F.Supp. 94 (D.D.C.1964), aff'd., 339 F.2d 753 (D.C.Cir.1964), the majority states that “the Comptroller General cannot neatly be labelled as totally the creature of one branch or another,” Maj.Op. at 885, and that “the GAO is best viewed as a part of a headless ‘fourth branch’ of government.” Id. at 886.

Having thus severed the Comptroller General from any constitutional moorings within one of the three branches of government, the majority argues that because the GAO and the Comptroller General are “functionally independent of political control,” id. at 887, and because the GAO has a “long history of independence,” id. at 887, the powers granted the Comptroller General are not unconstitutional. According to the majority: “the delicate balance of power among the branches of government has not been endangered or upset [by the provision of CICA permitting congressional removal for cause of the Comptroller *892 General],” id., and CICA is thus constitutional.

In my view, the majority’s argument has gone awry on its very first step, its refusal to place the Comptroller General in one branch of government or another. The Constitution establishes three branches of government, not four. Moreover, because ours is a government of enumerated powers, there can be no branch of government not established by the Constitution. ' It therefore follows that there can be no fourth branch, headless or otherwise.

I admit that scholars often refer to administrative agencies as the “fourth branch” of government. See, e.g., Strauss, The Place of the Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum.L.Rev. 573 (1984). The Supreme Court, however, has not acknowledged that administrative agencies, even the so-called independent regulatory agencies, belong to a category all their own. To the contrary, the Supreme Court continues to frame its separation of powers analyses in the context of the familiar triumvirate of branches. See, e.g., INS v. Chadha, 462 U.S. 919, 951 , 103 S.Ct. 2764, 2784 , 77 L.Ed.2d 317 (1983) (“The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.”); Buckley v. Valeo, 424 U.S. 1, 120 , 96 S.Ct. 612, 682 , 46 L.Ed.2d 659 (1976) (in analyzing the constitutionality of the powers of the Federal Election Commission, an “independent” administrative agency, the Court referred to the “fundamental principles of the Government ... that the powers of the three great branches of the National Government be largely separate from one another.”). The majority’s insistence on a fourth branch, while perhaps intellectually fashionable, is thus contrary to the jurisprudence of the Supreme Court. 1

I do not deny that administrative agencies are and must be part of our government, and I do not suggest that they lack legitimacy simply because they were not envisaged by the Founding Fathers. Administrative agencies developed as a response to the needs of a complex society, and so long as our society remains as complex as it is, we shall need them. My point is simply that courts engaged in constitutional analysis must work within the framework established by the Constitution, and the Constitution does not allow for any more than three branches of government. If the administrative agencies cannot fit within this framework then the framework should perhaps be changed, but if this is to be done it must be by constitutional amendment, not judicial disregard of the present Constitution. Even a living constitution cannot grow a new branch.

In analyzing the case before us, our first task must therefore be to decide to which of the three branches of government the GAO belongs. The next step in the analysis is to classify the powers conferred on the Comptroller General by the allegedly objectionable provisions of CICA. Only then can we decide whether those powers violate the Constitution.

II.

A.

Because the office of the Comptroller General is created by statute, the Comp- *893 trailer General’s status within the government is a matter of statutory interpretation which, like all statutory interpretation, is controlled by legislative intent. Paskel v. Heckler, 768 F.2d 540, 543 (3d Cir.1985); Murphy, Old Maxims Never Die: The “Plain Meaning” Rule and Statutory Interpretation in the “Modem” Federal Courts, 75 Colum.L.Rev. 1299, 1299 (1975). There is copious evidence in the legislative history that the GAO (and therefore the Comptroller General) was intended to be in the legislative branch. This evidence is summarized concisely by the majority, and there is no need to repeat it here. See Maj.Op. at 882 (summarizing legislative history and citing cases that arrive at the same conclusion). Because there is no evidence of legislative intent to the contrary, I believe that it is incumbent upon us to hold that the Comptroller General is within the legislative branch of government, despite the inconveniences that may attend such a holding.

The majority’s reluctance to classify the Comptroller General as legislative stems from two sources: (a) the fact that certain of the Comptroller General’s functions are executive in nature, see infra at 893-894, and (b) the fact that the Comptroller General is appointed by the President. See Maj.Op. at 892. Although both of these facts are relevant to the question whether any of the statutes affecting the Comptroller General unconstitutionally violate the principle of separation of powers, see infra 895-896, neither is relevant to the logically prior question: to which branch does the Comptroller General belong? As I have noted, because the office of the Comptroller General is created by statute, his status must be determined by legislative intent. 2 In this case, the legislative intent is clear — he belongs to the legislative branch.

B.

Having determined that the Comptroller General is a member of the legislative branch, the next step in the analysis is to determine whether CICA grants the Comptroller General any functions that are executive or judicial rather than legislative. On this point, the parties agree that the following powers granted to the Comptroller General by CICA are not legislative: the powers to (i) review protests and issue recommendations on their adequacy, 31 U.S.C.A. § 3554 (West Supp.1985), (ii) lift the automatic stay imposed by the filing of the protest, id., and (iii) demand attorneys fees *894 and costs on a finding that the solicitation was unlawful, id.

I agree with the parties’ conclusions. Although the meanings of “legislative,” “executive,” and “judicial” are somewhat indeterminate, I find it hard to believe that the powers listed above would fit under any of the more common understandings of “legislative power.” In exercising these powers, the Comptroller General acts on a case-by-case basis; he applies law rather than makes it. The powers are executive, or even quasi-judicial, rather than legislative. Although in other contexts the distinction between executive and judicial would be quite important, here it is not, and I therefore pass over it. The important point, which no party contests, is simply that the Comptroller General, a legislative officer, undeniably exercises non-legislative powers.

C.

The inquiry cannot end here. The three branches of government, although separate, are not airtight. See Nixon v. Administrator of General Services, 433 U.S. 425, 443 , 97 S.Ct. 2777, 2790 , 53 L.Ed.2d 867 (1977); United States v. Nixon, 418 U.S. 683, 703 , 94 S.Ct. 3090, 3105 , 41 L.Ed.2d 1039 (1974). The Supreme Court has adopted a flexible approach, and has expressly endorsed the eloquent language of Justice Jackson in Youngstown Sheet & Tube Co. v. Sanger, 343 U.S. 579, 635 , 72 S.Ct. 863, 870 , 96 L.Ed. 1153 (1952) (Jackson, J., concurring):

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

The doctrine of separation of powers thus allows for some overlap among the branches. It could scarcely be otherwise, for virtually every branch has members who perform work that can be characterized as belonging to another branch. In the judiciary, for example, the Chief Judge, Circuit Executive, and Clerk of this Court exercise administrative responsibility that is executive rather than judicial. Every legislator has aides who do similar administrative/executive-type work. Administrative agencies that are within the executive branch often engage in both rulemaking, which is legislative in character, and adjudication, which is, of course, judicial.

The proper question in the separation of powers context, therefore, is not merely whether members of one branch do work that falls within the description of another. Rather, the question is whether, by that work, the branch to which those members belong infringes so substantially on the other branch that the infringed-upon branch cannot carry out its constitutionally assigned functions. This test was explicitly enunciated by the Supreme Court in Nixon v. Administrator of General Services, supra, 433 U.S. at 443 , 97 S.Ct. at 2790 : “[I]n determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions.”

Even this test is not immediately accessible; for “constitutionally assigned functions” is not a readily definable term. Each branch has many constitutionally assigned — or, at least, constitutionally permitted — functions. To give definition to the term, it is therefore necessary to place the problem in context, that is, to identify the objectives to be served by the principle of separation of powers and see if those objectives are threatened by the Comptroller General’s CICA-derived powers.

Although scholars may debate the intricacies and wisdom of separation of powers, the original intent of the Founding Fathers in creating our system of divided powers is very clear and can be briefly stated. The principal goal of the Founding Fathers in enacting a system of separated powers was the protection of individual liberties. The colonists had experienced virtual tyranny at the hands of all three branches in their recent histories, see G. Wood, The Cre *895 ation of the American Republic 1776-1787 604-05 (1969); Levi, Some Aspects of Separation of Powers, 76 Colum.L.Rev. 369, 373-76 (1976), and had concluded that only by diffusing power within the government could individual liberty be preserved. Echoing Montesquieu, James Madison wrote “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny.” Federalist No. 47 (Madison) in The Federalist, 373-74 (Hamilton ed. 1864); cf Montesquieu, The Spirit of the Laws, 38 Great Books of the Western World 70 (Hutchins ed. 1952) (“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.”). See also Youngstown Sheet & Tube Co. v. Sanger, supra, 343 U.S. at 635 , 72 S.Ct. at 870 (“the Constitution diffuses power the better to secure liberty”) (Jackson, J., concurring). 3

We are now in a position to ask the central question in this case: do the executive-judicial powers conferred upon the Comptroller General by CICA threaten to coalesce powers in one branch such that individual liberty — in this case, the liberty of those in Ameron’s position who bid for contracts covered by the CICA — is threatened? I think not. Three factors in particular convince me that the threat is not severe. First, CICA permits the executive branch unilaterally to override the automatic stay by submitting to the Comptroller General a written statement of “urgent and compelling circumstances which significantly affect interests of the United States.” 31 U.S.C.A. § 3553 (c)(2)(A). Thus, there need be no severe effects on the prerogative of the executive as a result of the Comptroller General’s powers. 4 Admittedly, § 3553(c)(2)(A) is not an executive carte blanche. The “urgent and compelling circumstances” must in fact exist, and I presume that this would be determined by a court of law — the third branch. Nevertheless, the limitation on the Comptroller General’s powers is real and diminishes the threat to the goals of separation of powers.

Second, Congress has no voice in the Comptroller General’s day-to-day operations, and it holds no sword of Damocles over the Comptroller General’s head. Congress’ only power over the Comptroller General, its power of removal, is circumscribed because it requires a joint resolution of Congress, and must be for one or more of five specified reasons: permanent disability, inefficiency, neglect of duty, malfeasance, or conduct which is felonious or involves moral turpitude. 31 U.S.C. § 703 (e) (1982). The joint resolution will likely be more difficult to pass than a majority vote in one house, and the five reasons, although not so narrow as to deny Congress any leeway, circumscribe Congress’ power to some extent by providing a basis for judicial review of congressional removal. The result of this limitation is that, as a practical matter, Congress has not exercised, and probably will never exercise, such control over the Comptroller General that his non-legislative powers will threaten the goal of dispersion of power, and hence the goal of individual liberty, that separation of powers serves.

It is particularly instructive in this regard to compare this case with INS v. Chadha, supra, heavily relied upon by the Army. Although both cases involve an infringement by the legislative branch into *896 the domain of the executive, the nature of the infringements are very different. The unicameral legislative veto struck down in Chadha had all the earmarks of a hastily considered, unjust bill of attainder: there was neither a published committee report nor a debate, but only a conclusory statement on the floor of the House by a single Representative. Congress made the decision to deport Chadha by an unrecorded vote. Id. 462 U.S. at 926-27 , 103 S.Ct. at 2771-72 (Opinion of the Court); id. at 963-64 , 103 S.Ct. at 2790-91 (Powell, J., concurring). Here, by contrast, there is no direct congressional involvement, and consequently the danger sought to be avoided in Chadha — the involvement of political passions in quasi-judicial proceedings — is simply not present. Bidders like Ameron realistically need not fear significant and improper congressional involvement.

Finally, it must not be forgotten that the President appoints the Comptroller General. Although the power of appointment does not give the President continuing control over the Comptroller General, it does give the President the opportunity to put into that office someone who will be respectful of the prerogatives, and sympathetic to the problems, of the executive branch. Once again, this is a significant feature of the case before us that lessens the severity of the congressional infringement on executive powers and distinguishes this case from those, like Chadha , in which the infringement and threat to liberty is more severe.

III.

My analysis is in many ways similar to the majority’s. For both of us, the independence of the Comptroller General from congressional control and the limited power of the Comptroller General over the President are central to our decision. The majority might thus contend that our differences are merely semantic, and that I toil under a “ ‘tyranny of labels.’ ” See Maj.Op. at 883 (quoting Snyder v. Massachusetts, 291 U.S. 97, 114 , 54 S.Ct. 330, 335 , 78 L.Ed. 674 (1934) (Cardozo, J.)). But the majority would be wrong. What is at stake is our adherence to the system of government established by the Constitution. It is essential that we write — and think — only in terms of the three branches, and that we permit no more than the terms of the Constitution, fairly interpreted, will allow.

I can only surmise that the majority was attracted to the concept of the headless fourth branch because of its fear that the Comptroller General, and all other “independent” administrative agencies, could not survive an analysis that allowed for only three branches of government. I have explained, see supra II.C., why I believe the concept of separation of powers is sufficiently flexible to accommodate the CICA. I assume that similar analyses would lead to the same results for most other administrative agencies, although I cannot be sure. 5 I am certain, however, that if some agency powers cannot fit within a government of three branches, or if certain legislation permitting one branch to affect the affairs of another cannot be countenanced within the three-branch framework, then those agency powers and that legislation must fall. The judiciary cannot invent a fourth branch to house them. Otherwise, *897 we risk the very tyranny the Founding Fathers sought so ingeniously to avoid.

. The Senate argues in its brief that the fact that the Comptroller General is appointed by the President precludes his being part of the legislative branch. In making this argument, the Senate relied on Buckley v. Valeo, 424 U.S. 1 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976). See abo Maj.Op. at 892 (citing Buckley for the proposition that the executive functions of the Comptroller General and his appointment by the President "arguably render the Comptroller an ‘Officer of the United States,’ ” i.e., a member of the executive branch.). This reliance is misplaced, for Buckley never suggested that all those appointed by the President are necessarily members of the executive branch of government. Buckley held that only those appointed by the President could be “Officers of the United States," but we are concerned here with the obverse problem, never contemplated by Buckley , whether all those so appointed are necessarily Officers of the United States.

The only reference, in Buckley to the Comptroller General came in a footnote in which the Supreme Court rejected an analogy between the members of the Federal Election Commission (who were not appointed by the President) and the Comptroller General. The Court said that "irrespective of Congress’ designation [of the Comptroller General as a legislative officer], the Comptroller General is appointed by the President in conformity with the Appointments Clause.” Buckley v. Valeo, supra, 424 U.S. at 128 n. 165, 96 S.Ct. at 686 n. 165. This offhand reference is not sufficient to support the Senate’s point that appointment by the President with the advice and consent of the Senate automatically makes one a member of the executive branch. The Buckley Court intended to distinguish the Comptroller General from the members of the Federal Election Commission, not to establish a general rule for a situation that was not before it.

Not only is the Senate’s reliance on Buckley weak, but there are counter-examples that disprove its thesis. There are undisputed legislative officers who are appointed by the President — the Librarian of Congress, 2 U.S.C. § 136 (1982), the Public Printer, 44 U.S.C. § 301 (1982), and the Architect of the Capitol, 40 U.S.C. § 162 (1982). Thus, the manner of appointment cannot be dispositive.

. In The Interdependence of Legitimacy: An Introduction to the Meaning of Separation of Powers, 5 Seton Hall L.Rev. 435 (1974), Judge Gibbons develops the thesis that the three branches were not intended to work in isolation and that a more accurate portrayal of the system is one of dispersed but shared decisional responsibility in which at least two branches must always concur, thus providing reasonable protection against the tyrannical exercise of power by a single branch. On this theory it is not necessary to invent a fourth branch to remedy overlap in the scheme. Judge Gibbons also gives several examples, both early and recent, of how the system of separated powers protects individual liberties.

. At least the executive need not fear for its ability to extract itself from an exigent circumstance, e.g., a contract dispute that would threaten a vital defense contract in time of national emergency, or an environmental hazard or natural disaster.

. For example, it is conceivable, albeit unlikely at this late date, that someone might launch a separation of powers challenge to the adjudicatory procedures of the NLRB. Under my analysis, a court would consider the legislative history of the NLRB to determine to which branch it was intended to belong. Presumably, the answer would be that it belongs to the executive branch. Next, the court would consider whether its adjudicatory procedures were executive in nature, and would presumably conclude that they were not, but were, rather, judicial. Finally, the court would ask whether this exercise by the executive branch of judicial functions gave the executive so much power, or so intruded upon the vital functions of the judiciary, that individual liberties were threatened. In making this inquiry, the court would consider (i) how much power the President has over the NLRB’s adjudicatory functions, and (ii) whether the functions are a significant intrusion upon the judiciary, or whether, on account of judicial review of NLRB decisions, the intrusion is not severe. This analysis suggests, I believe, that my approach would not eclipse the contemporary regulatory scheme.