Appendix — O'Neill v. Synar

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

oOv"LYSC ~

85-1378"

REI RD -

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

Charles A. Bowsher, Comptroller

General of the United States,

Appellant,

Vv.

Mike Synar, Member of Congress, et al.,

Appellees.

On Appeal from the United States

District Court for the District of Columbia

APPENDICES TO JURISDICTIONAL STATEMENT

Harry R. Van Cleve

General Counsel

James F. Hinchman

Deputy General Counsel

Robert P. Murphy

Attorney-Adviser

U.S. General Accounting Office

441 G Street, N.W.

Washington, D.C. 20548

Tel. (202) 275-5207

Lloyd N. Cutler*/

John H. Pickering

William T. Lake

Daniel M. Drory

Richard K. Lahne

Neal T. Kilminster

Wilmer, Cutler & Pickering

1666 K Street, N.W.

Washington, D.C. 20006

(292) 872-6000

Attorneys for the Comptroller

General of the United States

*/ Counsel of Record

February 18, 1986

Supreme Court, U.S.

FILED

FEB 18 1986

JOSEPH F. SPANIOL, JF

CLERK

APPENDICES

Appendix A, Opinion Below. Per curiam opinion dated

February 7, 1986, Synar v. United States (D.D.C.

Nos. 85-3945, Pts +cettndnine dean ee ee 6 6 *eeneeneeee la

Appendix B, Judgment Below. Order dated February 7, 1986,

Synar v. United States (D.D.C. Nos. 85-3945,

85-4106 PPP Perr TeTT TT TTT TTT TTT TCT TerrrrrierTrTireTn:s |

Appendix C, Notice of Appeal. Notice of appeal filed

February 7, 1986, Synar v. United States (D.D.C.

Nos. 85-3945, os PE |

Appendix D, Balanced Budget and Emergency Deficit Control

Act of 1965, Pub.L. 99-177, H.J. ReS. 372...20000022558

Appendix E, Budget and Accounting Act of 1921, ch. 18,

42 Stat. 20 RL a. -

RepenGia F, 3h UaBsE. B FOS CAGSSD cccccccccccecccceccseseces -128a

Appendix G, United States Constitution, Art. II, § 2,

Ghe Pidsnctaewaue *enrene e#eee@ *enerieneneneeeenee#eeeee#ee#e#e#ee##ee#eee#r%s=g#e l3la

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

REPRESENTATIVE MIKE SYNAR, et al,

Plaintiffs,

v.

UNITED STATES OF AMERICA,

Defendant,

UNITED STATES SENATE,

SPEAKER AND BIPARTISAN LEADERSHIP GROUP OF

THE UNITED STATES HOUSE OF REPRESENTATIVES,

COMPTROLLER GENERAL OF THE UNITED STATES,

Intervenors.

ae eR SR TE

NATIONAL TREASURY EMPLOYEES UNION,

Plaintiff,

Vv.

UNITED STATES OF AMERICA,

Defendant,

UNITED STATES SENATE,

SPEAKER AND BIPARTISAN LEADERSHIP GROUP OF

THE UNITED STATES HOUSE OF REPRESENTATIVES,

COMPTROLLER GENERAL OF THE UNITED STATES,

Intervenors.

Ca a Se ele Ac i ae

APPENDIX A

Civil Action No. 85-3945

FILED

FEB 7 1986

JAMES E. DAVEY, Clerk

Civil Action No. 85-4106

Alan B. Morrison, with whom Katherine A. Meyer was on the brief, for plaintiffs

in No. 85-3945.

Lois G. Williams, with whom Gregory O'Duden and Richard S. Edelman were on

la

the brief, for plaintiff in No. 85-4106.

Richard K. Willard, Assistant Attorney General, with whom Joseph E. diGenova,

United States Attorney, David J. Anderson, Branch Director, United States Department

of Justice, Neil H. Koslowe, Special Litigation Counsel, United States Department of

Justice, and Douglas Letter, Harold J. Krent, Robert E. Kopp, Leonard Schaitman, Judith

Ledbetter, Lee Sarah Liberman, Lori Fields and Richard Greenberg, Attorneys, United

States Department of Justice, were on the brief, for defendant United States of

America.

Michael Davidson, Counsel, United States Senate, with whom Ken U. Benjamin,

Deputy Counsel, United States Senate, and Morgan J. Frankel and John C. Grabow,

Assistant Counsel, United States Senste, were on the brief, for intervenor-defendant

United States Senate.

Steven R. Ross, General Counsel to the Clerk of the United States House of

Representatives, with whom Charles Tiefer, Deputy General Counsel to the Clerk of the

United States House of Representatives, and Michael L. Murray, Assistant Counsel to the

Clerk of the United States House of Representatives, were on the brief, for intervenor-

defendant Speaker and Bipartisan Leadership Group of the United States House of

Representatives.

Lloyd N. Cutler, with whom Harry R. Van Cleve, General Counsel, United States

General Accounting Office, James F. Hinchman, Deputy General Counsel, United States

General Accounting Office, Robert P. Murphy, Attorney-Advisor, United States General

Accounting Office, John H. Pickering, William T. Lake, Michael S. Helfer, Daniel M.

Drory and Richard K. Lahne were on the brief, for intervenor-defendant Comptroller

General of the United States.

2a

Before SCALIA, Circuit Judge of the United States Court of Appeals for the

District of Columbia Circuit, JOHNSON, District Judge of the United States District

Court for the District of Columbia, and GASCH, Senior District Judge of the United

States District Court for the District of Columbia.

PER CURIAM:

Plaintiffs in these consolidated cases challenge the constitutionality of certain

features of the Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. :'o.

99-177, 99 Stat. 1037, popularly known as the Gramm-Rudman-Hollings Act, signed into

law by President Reagan on December 12, 1985. The principal issues presented are

whether the plaintiffs, Members of Congress and the National Treasury Employees Union,

have standing to litigate the points they raise; whether the Act unconstitutionally

delegates legislative powers that may be exercised only by Congress; and, if not, whether

it confers upon the Comptroller General executive powers that may not constitutionally

be given to an officer removable by Congress. We find that plaintiffs in both cases have

standing, and that the powers in question may lawfully be delegated, but that the

delegation to the Comptroiler General violates the constitutionally requisite separation

of powers.

I

In the Act, Congress has set a "maximum deficit amount" for each of the fiscal

years 1986 through 1991, its size progressively reducing to zero in fiscal year 1991.

Section 251 provides that each year the Directors of the Office of Management and

Budget ("OMB") and the Congressional Budget Office ("CBO") shall estimate the amount

of the deficit for the upcoming fiscal year, and, if it exceeds the maximum deficit

amount for that fiscal year by more than a specified amount, shall calculate, program by

program pursuant to rules specified in the Act, the budget reductions necessary to ensure

3a

that the deficit does not exceed the maximum deficit amount for that year. The

Directors must jointly report their deficit estimates and budget reduction calculations to

the Comptroller GeneraL After reviewing the Directors' report, the Comptroller

General must issue his own report, containing his deficit estimates and budget reduction

calculations, to the President and Congress. Section 252 of the Act requires the

President to issue a "sequestration" order containing the budget reductions specified by

the Comptroller General After a prescribed time, the sequestration order becomes

effective and the spending reductions included in that order are automatically made.

The automatic deficit reduction process for fiscal year 1986 has progressed to the point

of issuance, on February 1, 1986, of the presidential sequestration order, which will take

effect on March 1, 1986. See Order, Emergency Deficit Control Measures for Fiscal

Year 1986 (Feb. 1, 1986).

The Act also provides what might be called a "fallback" deficit reduction process,

to take effect if any of the reporting procedures of the above-described "automatic"

def cit reduction process are found unconstitutional. Under the fallback process, the

report prepared by the Directors of the OMB and the CBO is submitted, instead of to the

Comptroller General, to a special joint committee of Congress, which must in five days

report to both Houses a joint resolution setting forth the contents of the Directors’

report. The joint resolution is then considered under special rules, and, if passed and

signed by the President, serves as the basis for the presidential sequestration order under

section 252.

Civil Action No. 85-3945, seeking declaratory relief against the United States,

was commenced on December 12, 1985 by Mike Synar, a Member of the House of

Representatives who voted against the Act. An amended complaint, filed on December

19, 1985, added as plaintiffs eleven other Representatives who voted against the Act.

Jurisdiction is averred to exist pursuant to subsection 274(a)(1) of the Act, which

authorizes any Member of Congress to bring an action in this court "for declaratory and

4a

sp

injunctive relief on the ground that any [presidential] order that might be issued pursuant

to section 252 violates the Constitution."!

The complaint alleges that the automatic de/icit reduction process, under which

the President is required by section 252 to issue a sequestration order implementing the

report issued by the Comptroller General pursuant to section 251, is unconstitutional in

two respects. Plaintiffs' first contention, briefly and essentially, is that the delegation

of power by Congress to the President and other government officials is an

unconstitutional delegation of legislative power. Their second contention is that the

powers assigned to the Comptroiler General and the Director of the CBO, both deemed

legislative branch officials by plaintiffs, constitutionally must be assigned to executive

branch officials. The Representatives allege that these unconstitutional provisions injure

them by (1) interfering with their constitutional duties to enact laws regarding federal

spending; (2) causing automatic reductions in their salaries, staff salaries, and office

expenses; and (3) causing automatic reductions in a variety of programs benefiting their

constituents. They seek a judgment declaring that the automatic deficit reduction

process is unconstitutional and that the President is without power, therefore, to order

spending reductions pursuant to that process.

In response to the Synar complaint, the United States filed a motion to dismiss on

the ground that the congressional plaintiffs lack standing to bring the action. The United

States Senate and the Comptroller General moved for leave to intervene as defendants

and also filed motions to dismiss on the ground that the Act is constitutional The

unopposed motions to intervene were granted on December 31, 1985.

Civil Action No. 85-4106, challenging the constitutionality of the automatic

deficit reduction process on legal theories identical to those presented in the Synar

1 Subsection 274(a)(5) provides that any such action "shall be heard and determined by a

three-judge court in accordance with (28 U.S.C. § 2284]." A designation of judges to

serve as the three-judge district court in this case was made by the Chief Judge for the

District of Columbia Circuit on December 16, 1985.

=

i F. |

action, was filed on December 31, 1985 by the National Treasury Employees Union

("NTEU"). NTEU, an unincorporated association representing the interests of both active

and retired federal employees, alleges that its retired members have been injured as a

result of the Act's automatic spending reduction provisions, which have operated to

suspend cost-of-living adjustments ("COLAs") otherwise due federal retirees on January

1, 1986. and which will operate to cancel those COLAs and other COLAs due in the

future. NTEU invokes the court's jurisdiction pursuant to 28 U.S.C. § 1331 and to

subsection 274(a)(2) of the Act, which provides, in pertinent part, that "any other person

adversely affected by an action taken under this title, may bring an action [in this court]

for declaratory judgment and injunctive relief concerning the constitutionality of this

title.” By Order dated January 2, 1986, the NTEU suit was consolidated with the earlier

action.

Subsequent to consolidation, the congressional plaintiffs and NTEU filed their

respective motions for summary judgment on January 6, 1986. The congressional

plaintiffs also filed an opposition to the motion of the United States to dismiss their

complaint for lack of standing. Thereafter, on January 8, 1986, the Speaker and

Bipartisan Leadership Group of the United States House of Representatives, granted

leave to intervene as a defendant in the consolidated cases, filed a memorandum of law

in support of the constitutionality of the Act.

The United States filed a cross-motion for summary judgment, again contending

that the complaint of the congressional plaintiffs must be dismissed for lack of standing

but conceding that NTEU appears to have standing. On the merits, the position of the

United States is that the Act does not unconstitutionally delegate legislative authority

but that the role of the Comptroller General in the automatic deficit reduction process

violates the principle of separation of powers. 2

2 The United States has also requested us to declare that the fallback deficit reduction

process contained in § 274 of the Act is constitutional Although we see no reason to

(cont'd)

6a

The motions of plaintiffs for summary judgment, as well as the cross-motion of

the United States for summary judgment on the merits, are opposed by the Senate, the

Comptroller General, and the Speaker and Bipartisan Leadership Group of the United

States House of Representatives. Argument on these dispositive motions was heard on

January 10, 1986, and the cases taken under advisement. By Order dated January 23,

1986, the Senate and the Comptroller General were granted leave to intervene in the

NTEU action.

I

In view of the established rule that "consolidation . . . does not merge the suits

into a single cause, or change the rights of the parties, or make those who are parties in

one suit parties in another," Johnson v. Manhattan Railway, 289 U.S. 479, 496-97 (1933);

see also McKenzie v. United States, 678 F.2d 571, 574 (Sth Cir. 1982), we find it

necessary to make separate standing determinations with respect to the plaintiffs in each

case under consideration. Moreover, even though the standing of NTEU has not been

directly challenged, we must satisiy ourselves that NTEU has standing before we can

proceed to consider its claims. Article III circumscribes the power of federal courts, and

"(t}]hose who do not possess Art. III standing may not litigate as suitors in the courts of

the United States." Valley Forge Christian College v. Americans United for Separation

of Church & State, Inc., 454 U.S. 464, 475-76 (1982). Before turning to a particularized

analysis of whether NTEU and the congressional plaintiffs have made the necessary

showing for standing in their respective cases, a brief general discussion of the applicable

principles is appropriate.

While the plaintiffs invoke this court's jurisdiction under the judicial review

provisions contained in section 274 of the Act, they concede, as they must, that Congress

doubt that proposition, the issue simply is not before this court. The plaintiffs have

conceded the constitutionality of the fallback process, and the United States — the

nominal defendant — has not set forth any claim for relief in its own behalf.

7a

may not abrogate the constitutional limitations imposed by Article III upon the power of

the federal courts. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979);

Muskrat _v. United States, 219 U.S. 346 (1911). Article III limits the jurisdiction of

federal courts to "cases or controversies," and "whether the plaintiff has made out a

‘case or controversy' between himself and the defendant within the meaning of Art. II

...+. is the threshold question in every federal case." Warth v. Seldin, 422 U.S. 490, 498

(1975). Principles of standing ensure that one who invokes the power of a federal court

satisfies this "case or controversy" requirement.

Although the Supreme Court has noted that "the concept of 'Art. III standing' has

not been defined with complete consistency in all of the various cases decided by this

Court which have discussed it," Valley Forge Christian College, 454 U.S. at 475, the

Court has repeatedly recognized that the concept entails certain basic requirements.

The first and most fundamental of these is that a party must allege a "distinct and

palpable injury to himself." Warth v. Seldin, 422 U.S. at 501. This injury must be a

"particular concrete injury," United States v. Richardson, 418 U.S. 166, 177 (1974), which

must amount to "a claim of specific present objective harm or a threat of specific future

harm." Laird v. Tatum, 408 U.S. 1, 14 (1972). A plaintiff need not await the

consummation of 4 threatened injury in order to have standing; it is sufficient that the

injury is imminent. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298

(1979). The further requirements of Article III standing are set forth in the Supreme

Court's recent formulation that "at an irreducible minimum, Art. III requires the party

who invokes the court's authority to [show] ... that the injury ‘fairly can be traced to the

challenged action’ and 'is likely to be redressed by a favorable decision.'" Valley Forge

Christian College, 454 U.S. at 472 (quoting Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26, 38, 41 (1976)); see also Allen v. Wright, 104 S. Ct. 3315 (1984).

Thus, at a minimum, Article III requires NTEU and the congressional plaintiffs to

show (1) actual or threatened injury, (2) traceable to the defendant. and (3) amenabie to

8a

judicial remedy.° In analyzing whether they have done so, we must accept as true all

material allegations of the complaints and construe them in favor of the complaining

parties. Warth v. Seldin, 422 U.S. at 501. We therefore assume, for the limited purpose

of the following standing analysis, that the automatic deficit reduction process

challenged by plaintiffs is unconstitutional

A

NTEU contends that it has standing to bring this action because subsection

252(aX6)(C\i) of the Act, as part of the automatic deficit reduction process, has

operated to suspend payment of annual COLA benefits otherwise due those of its

members who are federal retirees. NTEU also complains that, effective March 1, 1986,

the presidential sequestration order issued on February 1, 1986 will permanently cancel

retirees' COLA benefits for this fiscal year.4 It claims that these actual and threatened

injuries have been and will be caused by the automatic deficit reduction process and

would be redressed if that process were declared unconstitutional.

3 In the ordinary case, other limitations on standing exist — so-called "prudential"

limitations, not strictly required by Article Il. One of these that might normally have

some effect in the present case is the requirement that the plaintiff be arguably within

the "zone of interests" intended to be protected by the statutory or constitutional

provision on which he relies. Ba e.g., Valley Forge Christian ——s 454 U.S. at 475.

We disregard these prudentis! limitations because we it clear that Congress has, by

enacting the judicial review provisions contained in § 274, expanded sianding to challenge

the constitutionality of the Act to the full extent permitted by Article Il. Cf.

Gladstone, Realtors v. Village of Bellwood, 441 U.S. at 100.

4 Subsection 252(a)6)(C)(i) provides, in pertinent part:

Notwithstanding any other provision of law, any automatic spending

increase that would (but for this clause) be ... paid [between the

enactment of the Act and the effective date of a sequestration order for

fiscal year 1$86] shall be suspended until such order becomes effective, and

the amounts that would otherwise be expended during such period with

respect to such increases shall be withheid. If such order provides that

automatic spending increases shall be reduced to zero during [fiscal year

1986], the increases suspended pursuant to the preceding sentence and any

legal rights thereto shall be permanently cancelled.

9a

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. It is well established that an association such as NTEU has standing to sue solely

as the representative of its members, provided that they individually would have

standing. Warth v. Seldin, 422 U.S. at 511. There is no question that NTEU's federal

retiree members have suffered actual injury by the suspension of their COLA benefits

pursuant to the Act, and that they will suffer further injury by the permanent

cancellation of those benefits on March 1, 1986, under the terms of the President's

February | sequestration order. See Order, Emergency Deficit Control Measures for

Fiscal Year 1986 1, 4 (Feb. 1, 1986). We conclude that NTEU has made a sufficient

showing of injury to satisfy Article II's threshold requirement of injury-in-fact.

We must also consider the question of redressability, i.e., whether it is likely that

the relief requested will redress the injury complained of, before a finding of standing

can be made. As to at least the second of the injuries of which NTEU complains — the

imminent permanent cancellation of its members' COLA benefits by the operation of the

presidential sequestration order — it is unquestionable that a judicial remedy exists. !f

we declare the automatic deficit reduction process invalid, no cancellation of the COLA

benefits will occur as a result of that process.° Rather, the fallback deficit reduction

process established by subsection 274(f) will come into play,® and any cancellation of

COLAs under that process will require the passage of legislation. The mere possibility

that subsequent legislation might produce the same harm for which a judicial remedy is

sought is not sufficient to eliminate redressability and hence standing. Cf. Orr v. Orr,

440 U.S. 268, 272 (1979).

S Although the provision for COLA suspensions would survive uivalidation of the portions

of the Act under challenge here, it cannot be argued that indefinite suspension (i.e.,

suspension unless and until a joint resolution is enacted) would render our invalidation of

automatic cancellation illusory. It is clear from the language and structure of

§ 252(aX6C)i)-{ii) that any COLA suspension would extend no longer than one fiscal

year.

§ In light of the existence of the fallback process and the fact that the remainder of the

Act, as supplemented by that process, functions as a coherent piece of legislation, there

is no doubt that the automatic deficit reduction process is severable from the remainder

of the Act.

10a

eji-

Because the threatened injury of permanent cancellation of the COLA benefits

pursuant to an unconstitutional process may be redressed, we conclude that NTEU has

standing to bring its action.

B

Of the three types of injury that the congressional plaintiffs rely upon for

standing, briefly outlined above, we need consider only their claim that the automatic

deficit reduction process interferes with their constitutional duties to enact laws

regarding federal spending and infringes upon their lawmaking powers under the

Constitution, in that spending reductions made pursuant to the challenged process will, in

effect, override earlier, duly enacted appropriations laws in a manner other than that

prescribed by Article I, section 7. In response, the United States contends that this

injury is nothing more than a generalized grievance shared by all other citizens and thus

insufficient to support standing. |

Under the law of this Circuit, which recognizes a personal interest by Members of

Congress in the exercise of their governmental powers, limited by an equitable discretion

in the courts to withhold specific relief,’ we conclude that standing exists. Although it

is somewhat difficult to reconcile the various cases on congressional standing in this

Circuit, and in particular to tell which denials of relief in earlier cases, seemingly for

lack of standing, are now to be explained, in light of later cases, as resting upon an

exercise of equitable discretion, the cases clearly recognize that specific injury to a

legislator in his official capacity may constitute cognizable harm sufficient to confer

standing upon him. See, e.g., Moore v. United States House of Representatives, 733 F.2d

7 Two judges of the Court of Appeals, including a member of the present panel, have

expressed disagreement with this analysis, see Barnes v. Kline, 759 F.2d 21, 41 (D.C. Cir.

1985) (Bork, J., dissenting), petition for cert. filed $4 U.S.L.W. 3346 (U.S. Nov. 5, 1985)

(No. 85-781); Moore v. Uni tates House o resentatives, 733 F.2d 946, 956 (D.C.

Cir. 1984) (Scalia, J., concurring), cert. cies, Tas S. Ct. 779 (1985). It has, however,

been adopted by several panels of the Court of Appeals and is the law of this Circuit.

%

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946, 952 (D.C. Cir. 1984), cert. denied, 105 S. Ct. 779 (1985); Vander Jagt v. O'Neill, 699

F.2d 1166 (D.C. Cir.), cert. denied, 464 U:S. 823 (1983); Riegle v. Federal Open Market

Committee, 656 F.2d 873 (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981). More

specifically, our Court of Appeals has held that "unconstitutional deprivations of a

legislator's constitutional duties or rights... may give rise to standing if the injuries are

specific and discernible." Moore v. United States House of Representatives, 733 F.2d at

952 (citing Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974); Harrington v. Bush, 553

F.2d 190 (D.C. Cir. 1977); and American Federation of Government Employees v. Pierce,

697 F.2d 303 (D.C. Cir. 1982) (per curiam)). Put another way, a Member of Congress may

have standing where he alleges a " ‘specific and cognizable’ [injury] arising out of an

interest 'positively identified by the Constitution.' " United Presbyterian Church in the

U.S.A. v. Reagan, 738 F.2d 1375, 1381 (D.C. Cir. 1984) (quoting Moore v. United States

House of Representatives, 733 F.2d at 951).

Applying these standards to the instant case, we conclude that plaintiffs have

alleged specific and cognizable injury sufficient to establish standing in their official

capacities. The congressional plaintiffs cle’m that they are and will continue to be

injured by the operation of the automatic deficit reduction process because it interferes

with their "constitutional duties to enact laws regarding federal spending" an ' infringes

upon their lawmaking powers under Article I, section 7. Accepting as true plaintiffs’

allegations, as we must for purposes of determining their standing, the Act

unconstitutionally gives to the Comptroller General and the President formal power to

amend or repeal appropriations legislation that was lawfully passed, and thus effectively

to nullify plaintiffs' votes on that earlier legislation. This claim of injury is "specific"

and "discernible"; and it arises out of an interest "identified by the Constitution,” that is,

a congressional interest in having all laws made in the manner prescribed under the

general lawmaking provision contained in Article I, section 7. This interest differs

significantly from the more abstract and generalized interest unsuccessfully asserted by

l2a

lawmakers in United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d at 1375, ana

Harrington v. Bush, 553 F.2d at 190, viz., the interest in preventing unlawful executive

enforcement of a statute from "diminishing the effectiveness" of, or "nullifying," past

votes on that statute. Permitting lawmakers to assert the latter interest would be

tantamount to giving them standing to challenge the lawfulness of all executive action

taken under a statute; entertaining the present suit would not.

Finally, we find no occasion to consider exercising the equitable discretion held by

this Circuit's cases to justify denial of specific or declaratory relief to Members of

Congress. Section 274 of the Act specifically provides for such relief to such plaintiffs,

thus eliminating whatever equitable discretion might exist and leaving only the

limitations of Article III.

Ill

Plaintiffs contend that the Act's delegation to administrative officials of the

power to make the economic calculations that determine the estimated federal deficit

and hence the required budget cuts violates the «nastitutional provision vesting "all

legislative power" in the Congress. See Art. I, § 1. It is strictly unnecessary for us to

reach this point, since we hold in Part IV of this opinion that the challenged provisions of

the Act are unconstitutional on other grounds. We think it appropriate, however, in light

of the injunction of subsection 274(c) of the Act that we "expedite to the greatest

possible extent the disposition" of these cases, and in light of the direct appeal to the

Supreme Court provided by subsection 274(b), that we depart from normal prudential

practice and provide our views obiter dicta. We thereby avoid the necessity that the

Supreme Court, if in its judgment the point must be reached, must either proceed

without the usual benefit of a lower-court opinion or else delay final disposition by

remanding for that purpose.

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A

The delegation doctrine is rooted in the principle of separation of powers that

underlies the three-branch system of government established by the Constitution. As the

Supreme Court stated in Field v. Clark, 143 U.S. 649, 692 (1892): "That Congress cannot

delegate legislative power to the President is a principle universally recognized as vital

to the integrity and maintenance of the system of government ordained by the

Constitution."

In the first century and a half of the nation's history, however, the Court

uniformly held that challenged statutes did not unconstitutionally delegate legislative

power. See, e.g., Federal Radio Commission v. Nelson Brothers Bond & Mortgage, 289

U.S. 266 (1933); J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); United

States v. Grimaud, 220 U.S. 506 (1911). As Chief Justice Taft explained in a passage that

has become the classic exposition of the governing test, the separation-of-powers

principle does not prevent the legislative branch from seeking the “assistance” of

coordinate branches; "the extent and character of that assistance must be fixed

according to common sense and the inherent necessities of the governmental co-

ordination"; and so long as Congress "lay[s} down by legisiative act an intelligible

principle to which the person or body authorized to [exercise delegated authority] is

directed to conform, such legislative action is not a forbidden delegation of legislative

power." J. W. Hampton, 276 U.S. at 406, 409.

In 1935, however, the Court used the delegation doctrine to strike down portions

of the National Industrial Recovery Act of 1933. See A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). In

these cases, the Court concluded that Congress had failed to articulate a policy or set of

standards which would serve to confine the discretion of the individuals exercising the

delegated authority. See Schechter, 295 U.S. at 541-42; Panama Refining, 293 U.S. at

430. These two cases are the only cases in which the Court has declared a statute

l4a

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unconstitutional by reason of undue delegation.®

In the fifty years since Schechter was decided, the Court has consistently rejected

delegation challenges.? Nominally, it has continued to apply the same test (as Schechter

and Panama Refining themselves nominally applied the same test as J. W. Hampton),

scrutinizing the challenged statutes for intelligible standards and statements of purpose

which could provide guidance to the officials to whom authority was delegated. See,

e.g., Yakus v. United States, 321 U.S. 414, 424-25 (1944); Pittsburgh Plate Glass Co. v.

NLRB, 313 U.S. 146, 165-66 (1941); Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126,

144 (1941); United States v. Rock Royal Co-operative, 307 U.S. 533, 574 (1939).

Pragmatically, however, the Court's decisions display a much greater deference to

Congress' power to delegate, motivated in part by concerns that, "[iJn an increasingly

complex society Congress obviously could not perform its functions if it were obliged to

find all the facts subsidiary to the basic conclusions which support the defined legislative

policy." Opp Cotton Mills, 312 U.S. at 145. In Yakus, 321 U.S. at 425-26, the Court

noted:

8 The delegation doctrine was also discussed by the Court in Carter v. Carter Coal Co.,

298 U.S. 238 (1936). There the Court ruled that a provision in the Bituminous Coal

Conservation Act of 1935 which authorized various majorities of coal producers and mine

workers to set maximum hours and minimum wages for all miners was unconstitutional

Id. at 311. The Court denounced that provision as "legislative delegation in its most

Obnoxious form," but the Court's holding appears to rest primarily upon denial of

substantive due process rights. Id.

9 see, eg., United States v. Mazurie, 419 U.S. 544, 556-57 (1975); United States v.

Sharpnack, 355 U.S. 286, 29 958); District of Columbia v. John R. Thompson Co., 346

U.S. 100, 116 (1953); United States ex rel. Knaufi v. Shaughnessy, “Sie US 337, 342-44

(1950); Lichter v. United States 304 US 742, 774-75 (1948); Was 42, 774-75 (1948); Woods v. Cloyd W. Miller

FOS 13h 1444s (1948) 543, 250 T1947)

tat 4

Co., 333 U.S. 138, 948); Fahey v. Mallonee, 332 U.S. 245, 25 ; American

See oe Light Co. v. SEC, 329 US 40- 104-05 (1946); Bowles v. willing ham, 321 U.S.

503, 516 Cisiays Yakus v. United States, 321 U.S. 414, 42 4); Nation roadcasti

Co. v. United States, 3 -S. 190, 226 (1943); Pittsburgh Plate Glass Co. v. NLRB, 313

U.S. 146, 165 cy ae Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 146 941);

Sunshine Anthracite Coal Co. v. Adki .S. 381, 397 (1940); United States v. Rock

Royal Co-op., 307 U.S. 503, 374 71538), Mulford v. Smith, 307 U.S. 38, 48-49 (1939);

Currin v. Waite

ce, 306 U.S. 1, 15 (1939).

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It is no objection that the determination of facts and the inferences to be

drawn from them in the light of the statutory standards and declaration of

policy call for the exercise of judgment, and for the formulation of

subsidiary administrative policy within the prescribed statutory

framework....

. Only if we could say that there is an absence of standards for the

guidance of the Administrator's action, so that it would be impossible in a

proper proceeding to ascertain whether the will of Congress has been

obeyed, would we be justified in overriding its choice of means for

effecting its declared purpose....

The Supreme Court has endeavored to narrow the application of Schechter and

Panama Refining by noting that those cases involved "delegation of a power to make

federal crimes of acts that never had been such before and to devise novel rules of law in

a field in which there had been no settled law or custom," Fahey v. Mallonee, 332 U.S.

245, 249 (1947), and that Schechter concerned a statute which delegated regulatory

power to private individuals, see Yakus, 321 U.S. at 424. These attempts at narrowing

the cases, and the Supreme Court's failure to use the delegation doctrine to strike down a

statute in fifty years, have led some to conclude that the delegation doctrine is dead, or

at least "moribund." See National Cable Television Association v. United States, 415

U.S. 336, 353 (1974) (Marshall, J., dissenting). The Court has continued to use the

doctrine, however, in an interpretive mode, finding that statutory texts conferring

powers on the Executive should be construed narrowly where broader construction might

represent an unconstitutional delegation. See, e.g., Industrial Union Department v.

American Petroleum Institute, 448 U.S. 607, 646 (1980) (opinion of Stevens, J.); National

Cable Television Association, 415 U.S. at 342; Zemel v. Rusk, 381 U.S. 1, 17-18 (1965);

Kent v. Dulles, 357 U.S. 116, 129 (1958). Such cases indicate that while the delegation

doctrine may be moribund, it has not yet been officially interred by the Court.

Our analysis of the delegation challenged in the instant cases thus proceeds on the

assumption that the delegation doctrine remains valid law, but that its scope must be

determined on the basis of the deferential post-Schechter cases decided by the Supreme

Ilha

Court. We note, moreover, that the mode of analysis applied by the Supreme Court in

this field relies substantially upon factual comparison of the delegation under challenge

with delegations previously adjudicated. See, e.g., Woods v. Cloyd W. Miller Co., 333

U.S. 138, 144-46 (1948); American Power & Light Co. v. SEC, 329 U.S. 90, 104-05 (1946);

Opp Cotton Mills, 312 U.S. at 146; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381,

398 (1940). With that teaching firmly in mind, we turn to the arguments raised by

plaintiffs.

B

Plaintiffs advance a number of arguments that attempt to establish what might be

termed per se nondelegability of the powers at issue here — as opposed to arguments,

which we will discuss in the following section, going to deficiency in the standards

governing the delegation. Plaintiffs begin by arguing that the type of authority

delegated by the Act is "so central to the legislative function" that it may not be

delegated. They cite the dictum of Chief Justice Marshall in support of the notion that

there exist certain nondelegable "core functions" of Congress:

The line has not been exactly drawn which separates those important

subjects, which must be entirely regulated by the legislature itself, from

those of less interest, in which a general provision may be made, and power

given to those who are to act under such general provisions, to fill up the

details.

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825). The legislative power over

appropriations conferred by Article I, section 8, clause | and Article I, section 9, clause 7

is saii to constitute such a nondelegable "core function," particularly where the

delegated authority could affect the functioning of a broad range of federal programs

and, plaintiffs allege, would allow "unelected bureaucrats" to “override” portions of duly

enacted appropriations laws.

We reject this "core functions" argument for several reasons. First, plaintiffs cite

no case in which the Supreme Court has held any legislative power, much less that over

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appropriations, to be nondelegable due to its "core function" status. Indeed, in Lichter v.

United States, 334 U.S. 742, 778-79 (1948), the Court stated flatly that "{a] constitutional

power implies a power of delegation of authority under it sufficient to effect its

purposes." Second, judicial adoption of a "core functions" analysis would be effectively

standardless. No constitutional provision distinguishes between "core" and "non- -ore"

legislative functions, so that the line would necessarily have to be drawn on the basis of

the court's own perceptions of the relative importance of various legislative functions.

Finally, if there were any nondelegable "core functions," there is no reason to believe

that appropriations functions would be among them. The appropriations power is not

functionally distinguishable from other powers successfully delegated by Congress, !9 and

is particularly akin to the taxing power, which is similarly derived from Article I, section

8, clause | of the Constitution. In upholding a statute which delegated the latter power

by permitting the President to determine whether to increase duties on certain articles

in foreign commerce, the Supreme Court said:

It is conceded by counsel that Congress may use executive officers in

the application and enforcement of a policy declared in law by Congress,

and authorize such officers in the application of the Congressional

declaration to enforce it by regulation equivalent to law. But it is said that

this never has been permitted to be done where Congress has exercised the

power to levy taxes and fix customs duties. The authorities make no such

distinction. The same principle that permits Congress to exercise its rate

making power in interstate commerce, by declaring the rule which shall

prevail in the legislative fixing of rates, and enabies it to remit to a rate-

making body created in accordance with its provisions the fixing of such

rates, justifies a similar provision for the fixing of customs duties on

imported merchandise.

19 The Supreme Court has, of course, frequently upheld delegation of regulatory

authority under the commerce clause power. Delegations of authority conferred by many

other constitutional provisions also have been sustained, however. [t has been held, for

example, that Congress properly delegated power over immigration, see INS v. Chadha

462 U.S. 919, 953-54 n.16 (1983); United States ex rel. Knauff v. Shaughnessy, 338 U.S.

537, 542-44 (1950); the power to determine what constitutes a federal crime, see United

States v. Sharpnack, 355 U.S. 286 (1958); United States v. Grimaud, 220 U.S. 506 (1911);

and the power to legislate for the District of Columbia, even ugh the Constitution

describes that power as "exclusive" in Congress. See District of Columbia v. John R.

Thompson Co., 346 U.S. 100 (1953). Moreover, in Lichter, 334 U.S. at 778-79, the Court

stated that Congress' power to delegate "is especially significant in connection with

constitutional war powers." l8a

aw

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J. W. Hampton, 276 U.S. at 409; see also Field v. Clark, 143 U.S. at 680-94.

The second contention that may be viewed as going to per se nondelegability of

the authority conferred by the Act (though it is related to the issue of inadequate

standards) concerns the breadth of the power allocated to administrative officials, which

plaintiffs assert is constitutionally excessive. There is no doubt that the Act delegates

broad authority, but delegation of similarly broad authority has been upheld in past

cases. In Yakus, for example, the Court upheld a statute which delegated to an

unelected Price Administrator the power "to promulgate regulations fixing prices of

commodities." 32) U.S. at 420. In Bowles v. Willingham, 321 U.S. 503, 512, 514-15

(1944), it upheld the delegation of power to institute rent controls on real property

anywhere in the nation under specified circumstances. Finally, in Amalgamated Meat

Cutters v. Connally, 337 F. Supp. 737, 745, 763 (D.D.C. 1971), a three-judge district

court upheld a delegation of authority to the President "to issue such orders and

regulations as he deems appropriate to stabilize prices, rents, wages and salaries." The

authority conferred by the present Act, which permits administrators to affect spending

levels for a specified range of federal programs, and only to a certain degree, seems to

us no broader than these delegations that have been upheld. We think, in any event, that

the ultimate judgment regarding the constitutionality of a delegation must be made not

on the basis of the scope of the power alone, but on the basis of its scope plus the

specificity of the standards governing its exercise. When the scope increases to immense

proportions (as in Schechter) the standards must be correspondingly more precise. As we

shall see, the standards governing the power here are much more specific than in the

cases just described.

Nor is it the law, as plaintiffs assert, that a broad delegation such as this must be

supported by some rigorous "principle of necessity" which is allegedly not met here

because Congress has exercised sole power over appropriations in the past and

presumably could continue to do so. To be sure, in delegation cases the Supreme Court

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has occasionally recognized the "necessity" for a delegation. See, e.g., Buttfield v.

Stranahan, 192 U.S. 470, 496 (1904). It is doubtful, however, that the word "necessity" in

that context, any more than the word "necessary" in the "necessary and proper" clause of

the Constitution, refers to an "absolute physical necessity." See McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316, 413-15 (1819). Rather, necessity refers to a strong utility and

convenience, which can certainly be considered to exist here. In any case, while

"necessity" has been noted by the Court in upholding a delegation, "lack of necessity" has

never been invoked to strike one down. The same response may be made to plaintiffs'

argument based upon what they consider the long (six-year) duration of the present broad

delegation: while extremely limited duration has been invoked as one of the elements

sustaining a delegation, lengthy duration has never been held to render one void. The

delegations upheld in J.W. Hampton, 276 U.S. at 394, and Field v. Clark, 143 U.S. at €49,

for example, were for indefinite terms.

Finally, plaintiffs argue that the present delegation is per se invalid because it

allows administrators to "nullify" or "override" laws. Again we disagree. The Supreme

Court previously has upheld delegations which permit officials to determine when, if

ever, a law should take effect. See, e.g., Rock Royal Co-operative, 307 U.S. at 577-78;

Currin v. Wallace, 306 U.S. 1, 15-16 (1939); Field v. Clark, 143 U.S. at 693; The Cargo of

the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 388 (1812). In such cases, the

Court classifies Congress' action as legislating in contingency. The instant Act is no

more than a form of such contingent legislation. Throughout the Act, Congress has

stipulated that the full effectiveness of all appropriations legislation enacted for fiscal

years 1986 to 1991 will be contingent upon the administrative determination whether all

appropriated funds, when measured against revenues, result in a budget deficit in excess

of required target figures. Viewed in this context, the authority delegated by the Act

does not differ in kind from that approved in prior cases.

Zl

Cc

We come, then, to what is the plaintiffs' principal argument on the excessive

delegation point: that because of the lack of standards and the inherent imprecision of

the duties conferred upon the administrators, the Act fails adequately to confine the

exercise of administrative discretion. The search for adequate standards to restrict

administrative discretion lies at the heart of every delegation challenge. The essential

inquiry is whether the specified guidance "sufficiently marks the field within which the

Administrator is to act so that it may be known whether he has kept within it in

compliance with the legislative wil." Yakus, 321 U.S. at 425.

Our consideraticn of this objection requires a careful review of the statute. The

Act begins by establishing a "maximum deficit amount" for each fiscal year between

1986 and 1991. Act § 201(a)(1). It then requires the Directors of the OMB and the CBO

to estimate the anticipated "budget base levels of total revenues and budget outlays" for

a given fiscal year, to determine whether the projected deficit for that year will exceed

the maximum deficit amount for that year by more than a specified amount, and to

estimate the rate of real economic growth that will occur during that fiscal year, as a

whole and by quarters, and the rate of real economic growth that occurred during each of

the last two quarters of the preceding fiscal year. Id. § 251(a)(1). The Directors are then

jointly to report their conclusions to the Comptroller General Id. § 251(a)(2). Ul

The Comptroller General is instructed to "review and consider the report" and,

"with due regard for the data, assumptions, and methodologies used in reaching the

conclusicas set forth therein," issue his own report making the same type of estimates

and determinations contained in the Directors' report. Act § 251(b)(1)4{2). The

11 These conclusions all contribute to the calculation of whether the estimated deficit

for a given fiscal year exceeds the maximum deficit amount by more than the amount

specified in § 251(a)(1)(B) of the Act. Only if it does so will the Directors recommend

spending redv ‘ions. See Act § 25l(a)(2). Plaintiffs do not challenge the procedure by

which the administrators are to allocate the spending reductions necessary to reduce the

deficit excess.

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Comptroller General's report is to "be based on the estimates, determinations, and

specifications of the Directors and shall utilize the budget base, criteria, and guidelines

set forth" in specified sections of the Act. Id. § 251(b)(1). The report must "fully

explain” any differences between its determinations and those included in the report of

the Directors. Id. § 25 1(b)(2). !?

In considering whether this scheme contains constitutionally adequate legislated

standards, we first observe that it does set forth specific assumptions that are to be used

in calculating the budget base. See Act § 251(a)(6). The administrative officials are

directed to assume, with some specified exceptions, "the continuation of current law in

the case of revenues and spending authority,” id. § 25 l(aX6A), (cy}3 and, in all areas to

which the preceding assumption is inapplicable, "appropriations equal to the prior year's

appropriations except to the extent that annual appropriations or continuing

appropriations for the entire fiscal year have been enacted." Id. § 25l(aX6\B). They

must assume that “expiring provisions of law providing revenues and spending authority

... do expire, except that excise taxes dedicated to a trust fund and agricultural price

support programs administered through the Commodity Credit Corporation are extended

at current rates." Id. § 251(aX6)(C) Additionally, they must assume that "Federal pay

adjustments for statutory pay systems” will be as recommended by the President and will

not result in pay reductions and that Medicare spending levels for inpatient hospital

12 In fiscal years 1987-1991, the Directors and the Comptroller General are required to

submit revised reports under § 25l(c) of the Act. We disregard that refinement for

present purposes, since the types of determinations to be made in those revised reports

do not differ from those required to be made in the initial reports.

13 "Spending authority” is defined by reference to the Congressional Budget Act of 1974,

Pub. L. No. 93-344, 88 Stat. 297 (codified in relevant part as amended at 2 U.S.C. §§ 631-

661 (1982)). The relevant provision states that "spending authority” means temporary or

permanent authority relatea to government contractual obligations, the incurring of

indebtedness, and the making of certain payments, such as for loans and grants, if such

budget authority is "not provided for in advance by appropriations Acts." 2 U.S.C.

§ 651(c)(2). "Spending authority" does not include authority "to insure or guarantee the

repay ment of indebtedness incurred by another person or government." Id. § 65 l(c).

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services will be based upon specified regulations. Id. § 251(a\(6)(D). Finally, certain

spending deferrals proposed by the President are not to be included in the calculation.

Id. All of these directions relate to the required calculation of "budget base levels of

total revenues and total budget outlays" for a fiscal year.

The Act provides further guidance and limitation by way of definition. The "real

economic growth” to be calculated is defined as "the growth in the gross national product

during such fiscal year, adjusted for inflation, consistent with Department of Commerce

definitions." Act § 257(6). “Budget outlays” and "budget authority" are defined by

reference to provisions of the Congressional Budget and Impoundment Control Act of

1974.!4 "Deficit" is defined as "the amount by which total budget outlays for such fiscal

year exceed total revenues for such fiscal year." Id. §§ 257(4), 201(a)(1). Moreover, the

latter definition provides certain criteria for calculation of the deficit. See ic.

§ 201(a)(1).5

These required assumptions and definitions are given additional meaning by

reference to years of administrative and congressional experience in making similar

economic projections and calculations under the Congressional Budget Act of 1974.16

The present Act's references to the 1974 Act and to Department of Commerce

14 Pub. L. No. 93-344, 88 Stat. 297 (codified in relevant part as amended at 2 U.S.C.

S§ 621-688 (1982)). "Budget outlays" means, "with respect to any fiscal year,

expenditures and net lending of funds under budget authority during such year." 2 U.S.C.

§ 622(1). "Budget authority” means "authority provided by law to enter into obligations

which will result in immediate or future outlays involving Government funds, except that

such term does not include authority to insure or guarantee the repayment of

indebtedness incurred by another person or government." Id. § 622(2).

1S These criteria relate, inter alia, to treatment of Social Security funds and the

"receipts, revenues, disbursements, budget authority, and outlays of each off-pudget

Federal entity." Act § 201(a)(1).

16 Under the 1974 Act, the CBO is required to perforin a number of economic

calculations. For example, near the beginning of each fiscal year, it must issue a report

projecting for five fiscal years the total new budget authority and total budget outlays

for each fiscal year in that period, revenues to be received in each fiscal year, the

anticipated surplus or deficit, and the amount of "tax expenditures." 2 U.S.C. § 639(c)

(1982).

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regulations manifest Congress’ intent that past practice should inform the administrators'

calculations. The standards set by this Act thus "derive much meaningful content from

the purpose of the Act, its factual background and the statutory context in which they

appear." American Fower & Light Co., 329 U.S. at 104; see also Lichter, 334 U.S. at 785

("Standards prescribed by Congress are to be read in the light of the conditions to which

they are to be applied."); Amalgamated Meat Cutters, 337 F. Supp. at 748 (standards set

by statute are defined in part by consideration of experience under previous wage and

price stabilization statutes). Additionally, we note that the economic calculation

standards, which might seem vague ard confusing to laymen, will have more precise

meaning to officials accustomed to making such determinations. Here, as in Sunshine

Anthracite Coal Co., 310 U.S. at 398, "in the hands of experts the criteria which

Congress has supplied are wholly adequate for carrying out the general policy and

purpose of the Act."

We are of the clear view that the totality of the Act's standards, definitions,

context, and reference to past administrative practice provides an adequate "intelligible

principle” to guide and confine administrative decisionmaking. It is unquestionably true,

as plaintiffs point out, that in making the assessments of current facts and the

predictions of future facts that the statute requires, a good deal of judgment is involved,

and different individuals faithfully seeking to follow Congress’ instructions may reach

different results. Nevertheless, the discretion involved in assessing current facts and

predicting future ones is inseparable from administration of the law, and it is one of the

reasons we consider it important to elect our Chief Executive. If the facts and

predictions here are difficult to ascertain, they are no more so than many others

committed to the charge of administrative officials, such as the complex economi

calculations required of the agencies that determine the discount rate, the consumer

price index, and ‘he gross national product. What is significant about this case, and what

distinguishes it from many other cases in which delegation has been upheld, is that the

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only discretion conferred is in the ascertainment of facts and the prediction of facts. 7

The Comptroller General is not made responsible for a single policy judgment as to, for

example, what is a "fair price," see Yakus, 321 U.S. at 414, or when it would be

"appropriate" to freeze wages and prices, see Amaigamated Meat Cutters, 337 F. Supp.

at 737, or wherein lies the "public interest," see National Broadcasting Co. v. United

States, 319 U.S. 190 (1943). Compared with the cases upholding administrative resolution

of such issues, the present delegation is remote from legislative abdication. Congress "is

not confined to that method of executing its policy which involves the least possible

delegation of discretior to administrative officials." Yakus, 321 U.S. at 425-26.

D

Finally, we consider plaintiffs' argument that the delegation is unlawful because

of the preclusion of judicial review. Section 274(h) of the Act provides that "(t]he

economic data, assumptions, and methodologies used by the Comptroller General in

computing the base levels of total revenues and total budget outlays... shall not be

subject to review in any judicial or administrative proceeding." This is of course not a

total preclusion of judicial review with respect to all action taken under the Act. It does

not restrict the bringing of constitutional challenges; indeed, in subsection 274(a), the

Act endeavors to facilitate this type of judicial review by broadly designating those who

may bring such suits. In addition, subsection 274(g) preserves the rights guaranteed by

other laws; thus, there is nothing to prevent a court from detepmining whether the

operation of the Act improperly infringes upon such rights. Moreover, dy its terms,

subsection 274(h) would not prevent a court trom determining whether the Comptroller

17 Of course the Comptroller General must interpret the law in applying the provisions

of the Act, a point that will be relevant to the separation-of-powers discussion in Part IV

of this opinion. Whether or not that power can appropriately be considered a

"discretion," it is necessarily possessed by all officers charged with administration of the

law and therefore cannot possibly cause problems of unconstitutional delegation.

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General failed to make one of the assumptions required by subsection 251(a)(6).

Additionally, since the judicial review preclusion extends only to determination of "base

levels of total revenues and total budget outlays," a court presumably could determine

whether the Comptroller General had complied with the deficit calculation criteria

contained in subsection 201(a)(1). Nor are courts precluded from considering whether any

allocation of spending reductiors is made pursuant to statutory standards. Finally, the

Act expressly provides for review of the presidential sequestration orders to determine

their compliance with statutory requirements. See Act § 274(d).

The Act does insulate, however, those exercises of judgment by the Comptroller

General that the plaintiffs challenge and that we have approved above. Plaintiffs argue

that a condition of the validity of, if not all delegations, at least a delegation as broad as

that here at issue, is the availability of judicial review of its exercise. We do not agree.

To be sure, the Supreme Court has sometimes alluded to the availability of judicial

review in its catalogue of factors such as "necessity" and "limited duration," discussed

above, validating the delegation. In Opp Cotton Mills, for example, it said that

where ... the standards set up for the guidance of the administrative

agency, the procedure which it is directed to follow and the recora of its

action which is required by statute to be kept or which is in fact preserved,

are such that Congress, the courts and the public can ascertain whether the

agency has conformed to the standards which Congress has prescribed,

there is no failure of performance of the legislative function.

312 U.S. at 144 (emphasis added). And more recently, in INS v. Chadha, it noted in

dictum that the exercise of delegated authority "is always subject to check by the terms

of the legislation that authorized it; and if that authority is exceeded it is open to

judicial review as well as the power of Congress to modify or revoke the authority

entirely." 462 U.S. at 953-54 n.16.

These allusions cannot be thought to establish the principle that judicial review is

essential to sustain a delegation, since the exercise of many validly delegated authorities

is statutorily insulated from judicial review. See, e.g., Southern Railway v. Seaboard

Allied Milling Corp., 442 U.S. 449, 454-64 (1979) (construing provision of Interstate

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Commerce Act); Thompson v. Clark, 741 F. 2d 401, 404-05 (D.C. Cir. 1984) (construing

provision of Regulatory Flexibility Act). Even the more limited principle that judicial

review can "save" a delegation that would otherwise be invalid is questionable, since if

the requisite minimum standards have in fact not been established by Congress,

permitting them to be invented by the courts rather than by the administrator is nbd less a

delegation of political power, and arguably a worse one, since it is to a nonpolitical

branch, and a branch even less subject to congressional controls. In any event, since we

do not regard the present delegation as close to the line of invalidity, and since judicial

review of almost all of the administrative determinations remains available, we find that

insulating from judicial review the "economic data, assumptions, and methodologies used

. . . in computing the base levels of total revenues and total budget outlays” provides no

basis for finding the delegation invalid.

ses

In sum, our review of the aggregate effect of the factors identified by the

plaintiffs leads us to conclude that the delegation made by the Act passes constitutional

muster. Apart from the technicalities of the matter, the realities produce the same

conclusion. It seems to us not true, as plaintiffs have asserted, that Congress has

declined to make the "hard political choices." To the contrary, it has decided to impose

the severe constriction of federal spending necessary to produce a balanced budget by

fiscal year 1991, it has established an intricate administrative mechanism to address that

goal, and it has specified in meticulous detail which program budgets will be reduced in

order to achieve that result, and by how much. See generally Act §§ 251(a)(3), 255, 256.

All that has been left to administrative discretion is the estimation of the aggregate

amount of reductions that will be necessary, in light of predicted revenues and

expenditures, and we believe that the Act contains standards adequately confining

administrative discretion in making that estimation. While this is assuredly 45

27a

estimation that requires some judgment, and on which various individuals may disagree,

we hardly think it is a distinctively political judgment, much less a political judgment of

such scope that it must be made by Congress itself. Through specification of maximum

deficit amounts, establishment of a detailed administrative mechanism, and

determination of the standards governing administrative decisionmaking, Congress has

made the policy decisions which constitute the essence of the legislative function. It

"has defined the circumstances when its announced policy is to be declared operative and

the method by which it is to be effectuated. Those steps constitute the performance of

the legislative function in the constitutional sense." Bowles v. Willingham, 321 U.S. at

514. Accordingly, plaintiffs' delegation challenge is rejected.

iV

We turn to the next major objection to the Act's automatic deficit reduction

process, pressed in particular by the United States: that the role of the Comptroller

General in that process is invalid because he does not possess the constitutional

qualifications to perform it.'8 The objection takes various forms, but the only one we

find it necessary to address is the contention that the Act confers upon the Comptroller

General powers which are executive in nature, and which therefore cannot be conferred

upon an officer who lacks the degree of independence from Congress that their exercise

constitutionally requires. Specifically, the government objects to the fact that the

Comptroller General, while appointed by the President with the advice and consent of

18 it is argued by some of the plaintiffs that the Act in reality confers power not upon

the Comptroller General but rather upon the Directors of the OMB and the CBO, whose

joint report the Comptroller General assertedly will "rubber-stamp." We find that

assertion unconvincing, and thus direct our attention to the separation-of-powers

concerns raised by the Comptroller General's formal powers under the Act. Of course, if

it were true and relevant that the exercise of those powers would effectively be dictated

by the Directors, our conclusion that the Act unconstitutionally vests executive powers

in an official removable in a manner inconsistent with the exercise of such powers would

be a fortiori correct, because the Director of the CBO is removable by resolution of

either House. See 2 U.S.C. § 601(a)(4) (1982).

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the Senate, is removable not only by impeachment (as are all officers of the United

States) but also by joint resolution of Congress for specified causes, including

inefficiency and neglect of duty. 19

A

Three threshold objections are raised to our consideration of this issue as a basis

for invalidating the automatic deficit reduction process. First, intervenors argue that,

until removal is attempted, the issue of the effect of the Comptroller General's

removability upon his powers is not ripe for adjudication. This argument is flatly

contradicted by the decision in Northern Pipeline Construction Co. v. Marathon Pipe Line

Co., 458 U.S. 50 (1982). There the Supreme Court adjudicated (and in fact found

meritorious) the claim that bankruptcy judges who were appointed to fixed fourteen-year

terms, subject to removal for cause by the judicial council of the circuit in which they

served, and whose salaries were not immune from possible diminution, could not

constitutionally exercise certain of the powers granted them by the Bankruptcy Act of

i978 — notwithstanding the fact that no removal or salary diminution had been

attempted. 458 U.S. at 60-61, 87 (plurality opinion).

Intervenors seek to distinguish Northern Pipeline on the asserted ground that the

Court focused its attention on what they describe as the constitutionally defective

19 The provision of law governing the Comptroller Generai's removai reads as follows:

A Comptroller General or Deputy Comptroller General retires on

becoming 70 years of age. Either may be removed at any time by —

(A) impeachment; or

(B) joint resolution of Congress, after notice and an opportunity for

a hearing, only for —

(i) permanent disability;

(ii) inefficiency;

(iii) neglect of duty;

(iv) malfeasance; or

(v) a felony or conduct involving moral turpitude.

31 U.S.C. § 703(e)(1) (1982).

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tenure covets that had already been exercised (viz., under their analysis, the provision

appointing bankruptcy judges to a fixed term), rather than the ones that had not yet been

exercised (viz., the provisions permitting removal during the fixed term and reduction of

salary). As a factual matter, the assertion is not true. The. Northern Pipeline Court

$

focused no more of its attention on the fixed-term provision than on the removal-for-

cause provision or the absence of statutory protection against diminution in salary; it

simply noted all three problems, drawing no distinction among them on "ripeness" or any

other grounds. Northern Pipeline, 458 U.S. at 60-61. Moreover, the very notion that the

constitutional vice in Northern Pipeline had been "exercised," while in the present case

the asserted constitutional vice has not been, strikes us as little more than semantic

legerdemain. In the same sense in which the bankruptcy judges had already been

appointed to positions with a fixed term, the Comptroller General has already been

appointed to 4 position subject to congressional removal; and in the same sense that the

, congressional removal provision has not yet been applied in this case, neither had the

provision requiring judges to step down after fourteen years in Northern Pipeline. It is

true, of course, that the expiration of fourteen years was certain to occur while in the

present case congressional removal is not. But that is quite irrelevant to whether the

two provisions differ in their immediate impact, so that one is more "ripe" for review

than the other. The immediate impact in Northern Pipeline came not from the certainty

of expiration of fourteen years, but from: the bankruptcy judge's awareness of the

possibility of non-reappointment. It is his presumed desire to avoid that possibility by

pleasing the appointing power, just as in the present case it is the Comptroller General's

presumed desire to avoid removal by pleasing Congress, which creates the here-and-now

subservience to another branch that raises separation-of-powers problems. 22

20 Intervenors also seek to find support for their ripeness argument in Clark v. Valeo

559 F.2d 642 (D.C. Cir.) (en bane) (per curiam), aff'd mem., 431 U.S. 950 (1977), and

Muller Optical Co. v. EEOC, 743 F.2d 380 (6th Cir. 1984). It is not there. Clark, to be

sure, rejected a challenge to a legislative veto provision as unripe because the provision

(cont'd)

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The second threshold argument, made by the Senate, is that, since the manner of

removal that the Comptroller General's tenure statute embodies?! is functionally the

same as new legislation, there is no more reason for us to consider whether the existence

of that tenure statute invalidates the present Act than there would be to consider, in the

absence of such a statute, whether the possibility of Congress' passing a law removing

the Comptroller General would invalidate the Act. We disagree. Insofar as justiciability

and ripeness are concerned, the mere possibility that Congress might seek to remove an

officer is no more comparable to its formal assertion (by legislation) of the power to do

so, than is the mere possibility of an agency's punishing certain conduct comparable to its

formal assertion (by rule) of the power to do so. Cf. Abbott Laboratories v. Gardner, 387

U.S. 136 (1967). It is the prior assertion of authority to remove embodied in the tenure

statute that has the immediate effect, and presumably the immediate purpose, of causing

the Comptroller General to look to the legislative branch rather than the President for

guidance. And it is this, in turn, that constitutes the asserted evil of which the plaintiffs

complain. The logic of the Comptroller General's argument leads to the conclusion that

a tenure statute providing for removal of a judge exercising Article II] powers by joint

had not been exercised. But Clark involved a naked attack upon the provision itself and

not, like the present case, a challenge to present use of the statutory powers to which

the provision was attached. And Muller, which did address a challenge comparable to the

present case, implicitly rejects rather than supports intervenors' ripeness argument,

deciding on the merits a claim that the existence of an unexercised legislative veto

provision in a statute rendered actions taken under that statute unconstitutional. Muller,

743 F.2d at 388. See also Alaska Airlines, Inc. v. Donovan, 756 F.24 1550 (D.C. Cir.

1985) (holding on the merits that the existence of an unexercised legislative veto

provision in a statute would render invalid actions taken under the statute unless the

legislative veto provision were severable from the portion of the statute pursuant to

which the challenged actions were taken), petition for cert. filed, 54 U.S.L.W. 3394 (U.S.

Nov. 27, 1985) (No. 85-920).

21 The statute provic *s for removal by joint resolution, which requires either

presidential approval or f ssage by a two-thirds vote of both Houses of Congress over a

presidential veto. In sessing the compatibility of such a provision with the

constitutional doctrine o: -+paration of powers, we think it most appropriate to focus our

attention on the latter po. »ility — that Congress could remove the Comptroller General

despite presidential oppos on — and we therefore refer to the provision as authorizing

congressional removal.

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resolution could similarly not be challenged, a prospect we are not prepared to entertain.

Intervenors' last threshold argument is that, even if the powers granted to the

Comptroller General under the Act cannot be conferred upon an officer removable by

Congress, that conclusion does not necessarily invalidate the Act, but rather requires us

to choose which of the two inccmpatihte provisions (the powers in the Act or the removal

authority) should be set aside. That decision, they assert, should turn primarily upon our

estimation of which of the two provisions Congress would have wished to survive — which

they maintain is the Act.

Intervenors do not refer us to, nor are we aware of, any case in which a court

confronted with separate statutes, constitutionally incompatible in combination, has even

considered choosing which of the two to invalidate, much less resolved that choice as

intervenors suggest. To the contrary, as the cases specifically involving incompatible

authorization and tenure (or appointment) statutes amply demonstrate, the courts set

aside that statute which either allegedly prohibits or allegedly authorizes the injury-in-

fact that confers standing upon the plaintiff. See Springer v. Government of the

Philippine Islands, 277 U.S. 189 (1928) (removing from office, in quo warranto proceeding

brought by Philippine Governor-General, officials exercising executive power but

appointed by officers of Philippine legislature); Myers v. United States, 272 U.S. 52

(1926) (setting aside tenure-of-office statute that was the basis of postmaster's claim of

unlawful presidential removal). Indeed, the Supreme Court has taken that approach even

when the incompatible authorization and removal (or appointment) provisions are

contained within the same enactment. See Northern Pipeline, 458 U.S. at 50 (setting

aside exercise of adjudicatory authority over plaintiff by bankruptcy judge who lacked

Article III life tenure); Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) (setting aside

Federal Election Campaign Act provisions granting authority over plaintiffs to officials

appointed in a manner incompatible with the exercise of such authority).

Even if we were to agree, however, that when confronted with two separate

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provisions that cannot both be constitutionally sustained, we are free to choose between

them, and are to make our choice on the basis of presumed congressional intent, we

would conclude that in the present case it is the grant of powers under the Act that

would have to fall. As the brief of Intervenor Speaker and Bipartisan Leadership Group

of the House meticulously details, the grant of authority to the Comptroller General was

a carefully considered protection against what the House conceived to be the pro-

executive bias of the OMB. It is doubtful that the automatic deficit reduction process

would have passed without such protection, and doubtful that the protection would have

been considered present if the Comptroller General were not removable by Congress

itself — much less if he were removable (as validation of his functions under this

legislation might constitutionally require, a point we do not reach) at the discretion of

the President, like the Director of the OMB himself.

A congressional intent that it is the Comptroller General's powers under this Act,

rather than his manner of removal, that should yield if both cannot coexist is also

strongly suggested by the fallback deficit reduction process specifically established by

the Act to take effect if the automatic deficit reduction process is declared

constitutionally infirm — especially since it is clear that one of the grounds of possible

infirmity specifically brought to Congress' attention by the executive branch was the

participation of the Comptroller General.2? By reason of that fallback process, we

might add, setting aside the grant of powers to the Comptroller General would result in a

state of affairs that Congress unquestionably was willing to accept, whereas

congressional acceptance of an automatic deficit reduction process administered by a

Comptroller General unremovable by Congress (and perhaps removable at will by the

22 See Statement on Signing H.J. Res. 372 Into Law, 21 Weekly Comp. Pres. Doc. 1490-

91 (Dec. 12, 1985) ("[E]xecutive functions may only be performed by officers in the

executive branch. The ... Comptroller Generai [is an] agent{] of Congress, not [an]

officer{] in the executive branch. ... My administration alerted Congress to [this] ...

problem[ ] throughout the legislative process in an effort to achieve a bill free of

constitutionally suspect provisions. ... [W]e were unsuccessful in this goal... .").

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President) is purely speculative. Indeed, even apart from the fallback process a decision

setting aside the grant of powers under this Act rather than the separate statutory

provision for the Comptroller General's removal would run much less risk of frustrating

congressional intent. We have no idea how many powers of the Comptroller General,

conferred upon him by other statutes, would not have been conferred if he were not

subject to congressional removal

We conclude, therefore, that the question whether the powers conferred upon the

Comptroller General by the Act are constitutionally incompatible with his removability

from office by Congress is ripe for our consideration; and that an affirmative answer

requires invalidation of those powers. We turn to the merits of this issue.

B

The only portions of the Constitution explicitly addressing the power to remove

officers of the United States? are the impeachment clauses, which provide that "The

President, Vice President and all civil Officers of the United States, shall be removed

23 "Officers" are to be distinguished from "employees," see Buckley v. Valeo, 424 U.S. at

126 & n.162, as to whom the congressional power to restrict or impose removal may be

quite different. The distinction is not relevant to the present case, however, since it is

conceded that the Comptroller General is an officer. There may also be a difference, at

least insofar as Congress’ ability to restrict the President's removal power is concerned,

between those officers included within the meaning of the phrase "inferior Officers" in

the appointments clause of the Constitution, whose manner of appointment that clause

permits to be controlled to some degree by Congress (viz., to be vested "in the President

alone, in the Courts of Law, or in the Heads of Departments," Art. Il, § 2, cl. 2); and

other officers, whom the appointments clause requires to be appointed by the President

with the advice and consent of the Senate, id. See, e.g., Myers, 272 U.S. at 158-64;

United States v. Perkins, 116 U.S. 483, 484-85 (18 Gita b at distinction also is

not pertinent here, since no one contends, and it seems to us not seriously maintainable,

that the Comptroller General is an "inferior Officer." Finally, there may be a distinction

between "officers of the United States" and "officers of Congress," see Buckley v. Valeo,

424 U.S. at 127-28. Although it is not conceded that the Comptroller General comes

within the former category (the government vigorously asserts the contrary), we find it

unnecessary to decide the question, since if the Comptroller General is not an officer of

the United States he is a fortiori unable to exercise the executive powers we find him

unable to exercise on narrower grounds. Our analysis assumes, in other words, the more

validating characterization of the office.

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from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high

Crimes and Misdemeanors," Art. Il, § 4, and that the House of Representatives shall

bring, and the Senate try, the impeachment, Art. I, § 2, cL 5; Art. I, § 3, cl. 6. The

appointments clause of the Constitution, which it is universally agreed has some bearing

upon removal powers, reads as follows:

... [The President] shall nominate, and by and with the Advice and Consent

of the Senate, shall appoint Ambassadors, other public Ministers and

Consuls, Judges of the supreme Court, and all other Officers of the United

States, whose Appointments are not herein otherwise provided for, and

which shall be established by Law: but the Congress may by Law vest the

Appointment of such inferior Officers, as they think proper, in the

President alone, in the Courts of Law, or in the Heads of Departments.

Art. ll, § 2, cL 2.

Since the early days of the Republic it has not been doubted that the Constitution

implicitly confers upon the President power to remove civil officers whom he appoints,

at least those who exercise executive powers. In what has come to be known in the legal

literature as the "Decision of 1789," the First Congress, after heated debate, deleted

from a proposed bill creating the Department of Foreign Affairs language which provided

that the Secretary of Foreign Affairs was "to be removable from office by the

President." The reason urged by the proponents of the deletion was that the original text

implied the absence of a constitutionally conferred power of the President to effect the

removal. See Myers, 272 U.S. at 111-36.

The extent to which the implicit presidential removal power extends beyond

officers exercising executive powers, however, the extent to which it can be restricted

by legislation, and the extent to which it can be conferred by legislation upon the

Congress itself, have been the subject of Supreme Court pronouncements that are

conflicting in their reasoning, if not in their results. See generally Burkoff, Appointment

and Remova! under the Federal Constitution: The Impact of Buckley v. Valeo, 22 Wayne

L. Rev. 1335 (1976); Donovan & Irvine, The President's Power to Remove Members of

Administrative Agencies, 21 Cornell L.Q. 215 (1936). The cases are few enough that

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their holdings and their principal rationales may be readily sum marized.

In In re Hennen, 38 U.S. (13 Pet.) 230 (1839), the Court held that a district court

clerk, who had been appointed by a district court judge pursuant to that provision of the

Constitution authorizing Congress to vest the appointment of "inferior Officers... in

the Courts of Law," could also be removed by a district court judge. The Court said that

"{iJn the absence of all constitutional provision or statutory regulation, it would seem to

be a sound and necessary rule, to consider the power of removal as incident to the power

of appointment." Id. at 259.

In United States v. Perkins, 116 U.S. 483 (1886), the Court upheld an award of

back pay to a cadet-engineer in the Navy, who had been appointed by the Secretary of

the Navy and was dismissed by him in disregard of a statutory provision prohibiting

dismissal of any naval officer in peacetime except by court martial. The Court quoted

and approved the opinion of the Court of Claims stating that, regardless of what the

situation might be with regard to officers appointed by the President by and with the

advice and consent of the Senate under the self-operative provision of the Constitution,

'when Congress, by law, vests the appointment of inferior officers in the

heads of Departments it may limit and restric: ihe power of removal as it

deems best for the public interest. The constitutional authority in

Congress to thus vest the appointment implies authority to limit, restrict,

and regulate the removal by such laws as Congress may enact in relation to

the officers so appointed.’

Id. at 485.

In Shurtleff v. United States, 189 U.S. 311 (1903), the Court held that a statute

which provided that a particular Customs Department official "may be removed from

office at any time by the President for inefficiency, neglect of duty, or malfeasance in

office" did not prevent presidential removal for other reasons, since such a limitation

would have to be stated in "very clear and explicit language," id. at 315. The Court did

not confront, therefore, the issue of whether such a limitation would be constitutional

in Myers v. United States, 272 U.S. 52 (1926), the Court finally dealt with the

constitutionality of a statutory provision giving Congress a role in the removal process.

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The plaintiff was a postmaster, appointed by the President with the advice and consent

of the Senate, for a four-year term; he was dismissed by the President despite a tenure-

of-office act requiring advice and consent of the Senate for his removal. The Court

found the limitation unconstitutional in a 7l-page opinion by Chief Justice Taft

exhaustively examining the historical record bearing upon the meaning of the applicable

constitutional texts. The nub of the analysis is that, as the Decision of 1789 in the

Court's view established, and as In re Hennen had held, "the power of removal [is]

incident to the power of appointment," 38 U.S. (13 Pet.) at 259. The Constitution gives

Congress no authority to limit that removal power, except, implicitly, in the provision

authorizing Congress to provide for the appointment of inferior officers by means other

than the constitutionally prescribed method of presidential appointment with Senate

consent. At least where it exercises that authority in such fashion 2s to vest

appointment in the head of a department, it "may prescribe incidental ‘regulations

controlling and restricting the [appointing officer] in the exercise of the power of

removal." 272 U.S. at 161. Even in the latter situation, the Court added, for Congress to

"draw to itself, or to either branch of it, the power to remove or the right to participate

in the exercise of that power.... would be ... to infringe the constitutional principle

of the separation of governmental powers." Id. The opinion clearly regarded its holding

as applicable to officers whose functions include "duties of a quasi-judicial character,"

id. at 135, inciuding specifically the commissioners of the Interstate Commerce

Commission, see id. at 171-72.

The next case, decided nine years later, warrants more extended attention, since

it is the last major discussion by the Supreme Court of the constitutional authority of

Congress over power of removal. Humphrey's Executor v. United States, 295 U.S. 602

(1935), was a suit for back pay by a commissioner of the Federal Trade Commission

whom President Roosevelt had remioved without cause. The Federal Trade Com:mission

Act provided that commissioners "may be removed by the President for inefficiency,

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neglect of duty, or malfeasance in office." The Court's opinion, by Justice Sutherland,

first found that this language, unlike the virtually identical language involved in

Slurtleff, did bar removal for other causes, distinguishing the earlier case on the basis

that the office there involved had no term of appointment, whereas Federal Trade

Commissioners were limited to a term of seven years. Humphrey's Executor, 295 U.S. at

619-26. Then, in six pages addressing the constitutional issue — two of which were spent

discussing why the facts of Myers we.’e distinguishable — the opinion swept away much of

the reasoning of Myers (precisely how much is one of the issues before us) and

simultanecusly revolutionized separation-of-powers analysis. The Court said that the

holding of Myers extended only to "purely executive officers," and that the constitutional

prohibition it expressed did not apply to an officer like the Federal Trade Commissioner,

who "occupies no place in the executive department and who exercises no part of the

executive power vested b: the Constitution in the President," but acts only "in the

discharge and effectuation of... quazi-legislative!24] or quasi-judicial powers, or as an

lofficer of an] agency of the legislative or judicial departments of the government." 295

U.S. at 628.29 As to the latter, it said, "illimitable power of removal is not possessed by

24 It is noteworthy, though generally not noted, that the "quasi-legislative” powers

referred to in Humphrey's Executor were not substantive rulemaking powers, which the

Federal Trade Commission itself did not assert it possessed until 1962, see National

Petroleum Refiners Ass'n v. FTC, 482 F.2d 672, 693 (D.C. Cir. 1973), cert. denied, 415

U.S. 951 (1974), but rather the responsibility to conduct investigations for the purpose of

recommending legislation to Congress. See 295 U.S. at 621, 628. Though the holding of

Humphrey's Executor is necessarily limited to this sort of function, it is generally

assumed (though without any Supreme Court holding to sustain the point) that rulemaking

is a "quasi-legislative activity" for purposes of the rule of Humphrey's Executor. See,

e.g., INS v. Chadha, 462 U.S. 919, 953 n.16 (1982).

25 The Court did note that the President was authorized to direct the Federal Trade

Commission to investigate and report alleged antitrust violations, but described that

activity to be an "executive function — as distinguished from executive power in the

constitutional sense — [exercised] in the discharge and effectuation of [the Federal Trade

Commission's] quasi-legislative or quasi-judicial powers, or as an agency of the

legislative or judicial departments of the government." Humphrey's Executor, 295 U.S.

at 628 & n.*. In this opinion, we are careful to direct our attention to the question

whether the power that the Comptroller Generai exercises under the Act is "executive

power in the constitutional sense."

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the President," and Congress may "fix the period during which [the officer] shall continue

in office, and... forbid... removal except for cause in the meantime." Id. at 629.

This was said to be required by the doctrine of separation of powers, since "sound

application of a principle that makes one master in his own house precludes him from

imposing his control in the house of another who is master there," and since the "coercive

influence [of unlimited presidential power of removal] threatens the independence of a

commission, which is not only wholly disconnected from the executive department, but

which... was created by Congress as a means of carrying into operation legislative and

judicial powers, and as an agency of the legislative and judicial departments." Id. at 630.

The last Supreme Court decision involving the removal power was handed down

almost three decades ago. Wiener v. United States, 357 U.S. -49 (1958), was another

back-pay suit, by a commissioner of the War Claims Commission who had been removed

by President Eisenhower without cause. It was uncontested that the Commission

exercised only "quasi-judicial" functions, and the point at issue was whether Congress had

prohibited presidential removal without cause. Despite the absence of any explicit

prohibition, the Court found that

(jf, as one must take for granted, the War Claims Act precluded the

President from influencing the Commission in passing on a particular claim,

a fortiori must it be inferred that Congress did not wish to have hang over

the Commission the Damocles' sword of removal by the President for no

reason other than that he preferred to have on that Commission men of his

own choosing.

357 U.S. at 356.76 Accordingly, Humphrey's Executor was held to render the removal

unlawful.

26 In other language, the Wiener Court suggested its view that, at least with respect to

officers exercising "quasi-judicial" powers, the Constitution simply did not vest the

President with a power of removal, even one that might be expressly or implicitly limited

in appropriate circumstances by Congress. 357 U.S. at 352-53, 356. This language seems

squarely at odds with a long line of authority, beginning with In re Hennen, 38 U.S. (13

Pet.) 230 (1839), and unchallenged even by Humphrey's Executor, which was careful to

limit its decision to the question whether the Constitution vested in the President an

"illimitable" power of removal. Humphrey's Executor, 295 U.S. at 629. We are unwilling

to suppose that that line of authority has been overruled by the language in Wiener.

39a

These cases reflect considerable shifts over the course of time, not only in the

Supreme Court's resolutions of particular issues relating to the removal power, but more

importantly in the constitutional premises underlying those resolutions. It is not clear,

moreover, that these shifts are at an end. Justice Sutherland's decision in Humphrey's

Executor, handed down the same day as A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935), is stamped with some of the political science preconceptions

characteristic of its era and not of the present day — if not stamped as well, as President

Roosevelt thought, with hostility towards the architect of the New Deal.2? It is not as

obvious today as it seemed in the 1930s that there can be such things as genuinely

"independent" regulatory agencies, bodies of impartial experts whose independence from

the President does not entail correspondingly greater dependence upon the committees of

Congress to which they are then immediately accountable; or, indeed, that the decisions

of such agencies so clearly involve scientific judgment rather than political choice that it

is even theoretically desirable to insulate them from the democratic process. Moreover,

"quasi-legislative" and "quasi-judicial" functions can no longer be regarded as

extraordinary or even unusual activities of executive agencies. Finally, the expansion of

due process protections, see, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970), statutorily

prescribed procedures for both rulemaking and adjudication, see 5 U.S.C. §§ 552-559

(1982), and an elaborate system of judicial review, see 5 U.S.C. §§ 701-706 (1982), have

provided in more targeted fashion some of the protection against political intervention,

when it is inappropriate, which Humphrey's Executor sought to provide wholesale. It has

27 Justice Jackson, who had been Roosevelt's attorney general, remarked:

I really think the decision that made Roosevelt madder at the Court than

any other decision was that damn little case of Humphrey's Executor v.

United States. The President thought they went out of their way to spite

him personally and they were giving him a different kind of deal than they

were giving Taft.

E. Gerhart, America's Advocate: Robert H. Jackson 99 (1958).

40a

in any event always been difficult to reconcile Humphrey's Executor's "headless fourth

branch" with a constitutional text and tradition establishing three branches of

government — assuming, as the rationale though not the narrow holding of Humphrey's

Executor requires, that the presidential removal for cause permitted under the statute

upheld there did not include removal because of the appointee's failure to accept

presidential instructions regarding matters of policy or statutory application delegated to

him by Congress.

Some knowledgeable observers, see, e.g., Strauss, The Place of Agencies in

Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 633-40

(1984), think that abendonment of the Humphrey's Executor analysis has been presaged by

the Supreme Court's 1983 decision in INS v. Chadha, 462 U.S. at 919, which declared

invalid the legislative veto of agency action characterized in the majority and one of the

dissenting opinions as "quasi-legislative," see id. at 953 n.16 (majority); id. at 989 (White,

J., dissenting), and in the concurrence as "judicial in nature," see id. at 966 n.10 (Powell,

J., concurring). See also Process Gas Consumers Group v. Consumer Energy Council of

America, 463 U.S. 1216 (1983), aff'g mem. Consumers Union of United States, Inc. v.

FTC, 691 F.2d 575 (D.C. Cir. 1982) (en banc) (per curiam) (applying the holding of Chadha

to legislative veto of rulemaking by an "independent" regulatory agency). Assuredly

some of the language of the majority opinion in Chadha does not lie comfortably beside

the central revelation of Humphrey's Executor that an officer such as a Federal Trade

Commissioner "occupies no place in the executive department," and that an agency which

exercises only "quasi-legislative or quasi-judicial powers" is "an agency of the legislative

or judicial departments of the government,” 295 U.S. at 628.28

28 See, e.g., the following:

To be sure, some administrative agency action — rulemaking, for example

— may resembie “lawmaking.” . . . This Court has referred to agency

activity as being "quasi-legislative” in character. Humphrey's Executor v.

United States, 295 U.S 602, 628 (1935). Clearly, however, "lin the

(cont'd)

The Supreme Court's signals are not sufficiently clear, however, to justify our

disregarding the rationale of Humphrey's Executor, and we view our present task as one

of placing the facts before us into the framework established by Humphrey's Executor

and by the holdings of earlier cases (including Myers) which Humphrey's Executor did not

purport to overrule. In app oaching that task, it becomes apparent at the outset that the

present case falls neatly between the two stools of Myers end Humphrey's Executor. The

Comptroller General is neither a "purely executive officer{ ]" whom Myers (as

reinterpreted by Humphrey's Executor, see 295 U.S. at 627-28) requires to be subject to

discretionary presidential removal; nor an officer such as that said to be involved in

Humphrey's Executor, who "occupies no place in the executive department and who

exercises no part of the executive power vested by the Constitution in the President," id.

at 628. Rather, his status, insofar as the removal powers of the President are concerned,

falls precisely within the no-man's land described in the last substantive paragraph of the

Humphrey's Executor opinion:

To the extent that, between the decision in the Myers case, which

sustains the unrestrictable power of the President to remove purely

executive officers, and our present decision that such power does not

extend to an office such as that here involved, there shall remain a field of

doubt, we leave such cases as may fall within it for future consideration

and determination as they may arise.

Id. at 632.

framework of our Constitution, the President's power to see that the laws

are faithfully executed refutes the idea that he is to be a lawmaker."

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). See

Buckley v. Valeo, 424 U.S., at 123. When the Attorney General performs

his duties pursuant to § 244, he does not exercise "legislative" power.... It

is clear ... that the Attorney General acts in his presumptively Art. I

capacity when he administers the Immigration and Nationality Act.

Executive action under legislatively delegated authority that might

resemble "legislative" action in some respects is not subject to the approval

of both Houses of Congress and the President for the reason that the

Constitution does not so require. . . . Congress' authority to delegate

portions of its power to administrative agencies provides no support for the

argument that Congress can constitutionally control administration of the

laws by way of a congressional veto. ;

462 U.S. at 953-54 n.16.

It is unquestionable that some of the Comptroller General's powers — indeed, we

will posit for purposes of the present decision, all except those at issue here — consist of

(in the words of Humphrey's Executor) "specified duties as a legislative . . . aid,” in the

performance of which he “cannot in any proper sense be characterized as an arm or an

eye of the executive." Id. at 628.22 The Comptroller General's powers under the

automatic deficit reduction process, however, do not come within that category. Under

subsection 251(b)(1), the Comptroller General must specify levels of anticipated revenue

and expenditure that determine the gross amount which must be sequestered; and he

must specify which particular budget items are required to be reduced by the various

provisions of the Act (which are not in all respects clear), and in what particular

amounts. The first of these specifications requires the exercise of substantial judgment

29 See, eg, 2 U.S.C. § 686 (1982) (Comptroller General shall report unlawful

impoundment of funds to both Houses of Congress); 2 U.S.C. § 687 (1982) (Comptroller

General may sue the United States to force obligation of uniawfully impounded funds); 31

U.S.C. § 712(2) (1982) (Comptroller General shall estimate cost of compliance with

expenditure restrictions in appropriations bills, report to Congress and make

recommendations); 31 U.S.C. § 712(3) (1982) (Comptroller General shall analyze the

efficiency of executive-agency expenditures of interest to Congress); 31 U.S.C. § 712(4)

(1982° (Comptroller General shall make investigations at the request of either House or

an apy.’opriate committee thereof); 31 U.S.C. § 712(5) (1982) (Comptroller General shall

give assistance and information to appropriate congressional committees); 31 U.S.C.

$716 (1982) (Comptroller General may sue heads of agencies to obtain audit

information); 31 U.S.C. § 717(b) (1982) (Comptroller General shall evaluate the results of

government activities at the request of either House of Congress or appropriate

committees thereof); 31 U.S.C. § 717(ce)-(d) (1982) (Comptroller General shall assist

Congress and congressional committees in developing methods for the assessment of the

results of governmental activities); 31 U.S.C. § 719 (1982) (Comptrolier General shall

make various reports to Congress and congressional committees).

The special relationship between the Comptroller General and Congress that is

expressed in these statutes makes natural the frequent description of the Comptroller

General and the General Accounting Office as "part of" or "an agency of” the legislative

branch. See, e.g., Bowsher v. Merck & Co., 460 U.S. 824, 844 (1983); McDonnell Douglas

Corp. v. United States, 754 F.2d 365, 368 (Fed. Cir. 1985); United States v. McDonnell

Douglas Corp. v. United States, 751 F.2d 220, 224 (8th Cir. 1984); Delta Data Sys. Corp.

v. Webster, 744 F.2d 197, 201 n.1 (D.C. Cir. 1984); but cf., e.g., Lear Siegler, Inc. v.

Lehman, No. CV 85-1125-KN (C.D. Cal. Nov. 71, 1985); Ameron, Inc. v. United States

Army Corps of Eng'rs, 607 F. Supp. 962 (D.N.J. 1985), appeal filed, No. 85-5226 (3d Cir.);

United States ex rel. Brookfield Constr. Co. v. Stewart, 234 F. Supp. 94, 99-100 (D.D.C.),

’ 964) (per curiami) We need not and do not decide,

however, whether such characterizations are accurate.

43a

-44-

concerning present and future facts that affect the application of the law — the sort of

power normally conferred upon the executive officer charged with implementing a

Statute. The second specification requires an interpretion of the law enacted by

Congress, similarly a power normally committed initially to the Executive under the

Constitution's prescription that he "take Care that the Laws be faithfully executed."

Art. I, § 3. And both of these specifications by the Comptroller General are, by the

present law, made binding upon the President in the latter's application of the law. Act

§ 252(a)(3). Indeed, the Comptroller General is explicitly directed to report to Congress

on the extent to which the President follows his instructions. Act § 253. In our view,

these cannot be regarded as anything but executive powers in the constitutional sense.

We are, therefore, in the no-man's land described by Humphrey's Executor,

confronting an officer whose powers are neither exclusively executive nor exclusively

nonexecutive. The Comptroller General argues, in essence, that this territory should be

awarded to the "exclusively nonexecutive" side — that so long as the officer in question

exercises some, or at least a substantial number of, nonexecutive powers, the

constitutional restrictions upon the manner of his removal are the same as those

applicable in Humphrey's Executor.. We cannot accept that view.

What has been at issue in the congressional-executive dispute over the power of

removal that began in the First Congress is not control over the officer but, ultimately,

control over the governmental functions that he performs. And the object of all the

Supreme Court's opinions on the subject has been to assure, in the words of Justice Story

quoted in Humphrey's Executor, "that neither of the departments in reference to each

other '[shall] possess, directly or indirectly, an overruling influence in the administration

of their respective powers.” 295 U.S. at 630 (quoting J. Story, Commentaries on the

Constitution of the United States § 530 (4th ed. 1873)). The pursuit of that principle

becomes a foolish game if all that is necessary for Congress to acquire an "overruling

influence” over the administration of a constitutional executive power, no matter how

44a

-45-

significant it may ve, is to confer that power upon an official who exercises one or more

nonexecutive powers as well. Nor are we disposed to resolve this matter on the basis of

whether there is an "“adequate" admixture of nonexecutive powers, or whether

nonexecutive powers "predominate"; those are neither judicially manageable nor

congressionally knowable standards. Thus, under the Comptroller General's theory the

heads of most major executive agencies, since they exercise some quasi-legislative or

quasi-judicial powers, would currently qualify for Humphrey's Executor treatment — and

it is impossible to imagine any executive officer who could not be made to qualify by

sagacious congressional conferral of nonexecutive powers in the future. On the

Comptroller General's theory, not only he but also the Director of the OMB could be

subjected to congressional removal.

Having concluded that we are in the middle ground, and that the middle ground

cannot uniformly be accorded Humphrey's Executor treatment, we must decide precisely

what treatment the present facts demand. At this point another distinction between

Humphrey's Executor and the present case becomes relevant: the former upheld a statute

that imposed no more than a partial restriction upon the presidential power of removal —

removal without cause was prohibited, but presidential removal for "inefficiency, neglect

of duty, or mefeasance in office” was allowed. The statute governing removal of the

Comptroller General, by contrast, eliminates all presidential power of removal, and —

much beyond that — confers the power of removal upon Congress. The enormous

difference between the two, insofar as impact upon the balance of powers is concerned,

is apparent. As was observed by the Court in Myers, which, unlike Humphrey's Executor,

did involve the assertion of removal power by the Congress:

The Court . .. has recognized in the Perkins case that Congress, in

committing the appointment of such inferior officers to the heads of

departments, may oprescribe incidental regulations contsolling and

restricting the latter in the exercise of the power of removal. But the

Court never has held, nor reasonably could hold ..., that the excepting

clause enables Congress to draw to itself, or to either branch of it, the

power to remove or the right to participate in the exercise of that power.

-46-

272 U.S. at 161. It remains true that the Supreme Court has never sanctioned

congressional assertion of such a power. We think it at least questionable whether the

power would be approved even with respect to officers of the United States who exercise

only "quasi-legislative" powers in the Humphrey's Executor sense — since it would

dramatically reduce the value of the right to appoint such officers which the

Constitution has assured to the Executive or to the Courts of Law, a right that the

Supreme Court has regarded as an important element of the balance of powers, prompted

by the founders' often expressed fear "that the Legislative Branch of the National

Government will aggrandize itself at the expense of the other two branches." Buckley v.

Valeo, 424 U.S. at 129. We are confident, however, that congressional removal power

cannot be approved with regard to an officer who actually participates in the execution

of the laws. Once an officer is appointed, it is only the authority that can remove him,

and not the authority that appointed him, that he must fear and, in the performance of

his functions, obey. Giving such power over executive functions to Congress violates the

fundamental principle expressed by Montesquieu upon which the theory of separated

powers rests: "When the legislative and executive powers are united in the same person,

or in the same body of magistrates, there can be no liberty; because apprehension may

arise, lest the same monarch or senate should enact tyrannical laws, to execute them ina

tyrannical manner." Montesquieu, The Spirit of Laws, vol. I, bk. XI, ch. 6, at 152 (London

1823). See also The Federalist No. 48, at 327 (J. Madison) (P. Ford ed. 1898) ("{NJone of

[the branches] ought to possess, directly or indirectly, an overruling influence over the

others, in the administration of their respective powers.").

The Comptroller General argues, however, that a congressional removal power

limited to cause (which is what we have here) no more enables Congress to control

executive powers than did the presidential removal power for cause, which was retained

by the statute at issue in Humphrey's Executor, enable the President to control the

exclusively "“quasi-legislative" and "quasi-judicial" powers of the Federal Trade

-47-

Commission. It is not clear, to begin with, that a "quasi-legislative" power is the same as

a legislative power in the constitutional sense, so that the intrusion upon the Executive

here is parallel to the intrusion upon the Congress there.20 Assuming, however, that it

is, -here are several answers to the Comptroller General's objection. Humphrey's

Executor neither faced nor considered the question whether the limitations imposed by

the doctrine of separation of powers on the scope of executive authority over the

removal of nonexecutive officers are precisely equal to the analogous limitations on the

scope of congressional authority over the removal of executive officers. Parity is no

more to be expected there than it is with respect to the scope of the power to appoint, as

to which the Constitution grants only a subordinate role to the Congress. It is the

starting point of all judicial analysis ir this area, see, e.g., In re Hennen, 38 U.S. (13 Pet.)

230 (1839), that the President's power io remove, however much it may be restricted,

derives from the constitutional grant of his power to appoint; and we think the

permissible impact of that power to remove upon an officer's independence, in

comparison to the permissible impact of any such congressional power, may properly

reflect the greater strength of that pedigree. >! Moreover, insofar as effect upon

30 Justice Jackson aptly characterized the ambiguity of the "quasi-legislative"” and

"quasi-judicial" categories enshrined in constitutional jurisprudence by Humphrey's

Executor as follows:

Administrative agencies have been called quasi-legislative, quasi-executive

or quasi-judicial, as the occasion required, in order to validate their

functions within the separation-of-powers scheme of the Constitution. The

mere retreat to the qualifying "quasi" is implicit with confession that all

recognized classifications have broken down, and "quasi" is a smooth cover

which we draw over our confusion as we might use a counterpane to

conceal a disordered bed.

FTC v. Ruberoid Co., 343 U.S. 470, 487-88 (1952) (Jackson, J., dissenting).

31 of course, the Constitution vests Congress with the power to bring and try

impeachments of all officers of the United States. We think it apparent, however, that

this very limited power of removal, which may be exercised only through the trial and

conviction of an officer for "Treason, Bi bery, or other high Crimes and Misdemeanors,"

Art. I, § 4, simply cannot be compared to the congressional removal power at issue in

this case in its effect upon the independence of executive officers. Moreover, the

(cont'd)

47a

balance of powers is concerned, congressional power to remove is much more potent,

since the Executive has no means of retaliation that imay dissuade Congress from

exercising it — other than leaving the office vacant, thereby impairing the Executive's

own functions. Congress, on the other hand, has many ways to make the President think

long and hard before he makes a "for cause" removal that Congress disapproves, ranging

from budget constriction to refusal to confirm a successor.

It seems to us entirely clear under the recent landmark decision in INS v. Chadha,

462 U.S. 919 (1983), that if the present statute had not inserted the Comptroller General

between the President and the report of the Directors of the CBO and the OMB, and if

the determinations to be made under the Act by the Comptroller General had been

assigned instead to the President himself, Congress could not constitutionally provide for

legislative veto of those determinations. It is also unthinkable that Congress could

constitutionally provide for veto of those determinations by an officer removable by

Congress — the Comptroller General, for example. It seems to us no more

constitutionally permissible to achieve the same result ex ante instead of ex past,

prescribing in advance the exercise of executive power, instead of invalidating its

exercise.

We hold, therefore, that since the powers conferred upon the Comptroller General

as part of the automatic deficit reduction process are executive powers, which cannot

constitutionally be exercised by an officer removable by Congress, those powers cannot

be exercised and therefore the automatic deficit reduction process to which they are

central cannot be implemented. As earlier noted, we need not deliberate concerning the

effect of this invalidation upon other portions of the Act, since the Act itself provides

the answer: replacement of the automatic deficit reduction process with the fallback -

deficit reduction process, and preservation of the remainder of the Act intact. The Act

existence of such a carefully limited congressional removal power undermines rather

than supports the proposition that Congress may attempt to assert an additional power of

removal.

48a

mae

-49-

also requires, § 274(e), that we stay the order implementing our judgment pending the

outcome of any appeal.

ss ets

We do not minimize the effect of our invalidation of one small section of the Act

upon the entire statutory scheme. Our holding today eliminates the automatic deficit

reduction process, and gives effect to the prescriptions of the Directors of the OMB and

CBO only to the extent that they are adopted by joint resolution, i.e., legislation, under

the fallback deficit reduction process. It may seem odd that this curtailment of such an

important and hard-fought legislative program should hinge upon the relative technicality

of authority over the Comptroller General's removal — particularly when we have

rejected the more intuitive "excessive delegation" arguments that were the focus of the

attacks upon the legislation by its opponents on the floor of Congress and by the

plaintiffs here. But the balance of separated powers established by the Constitution

consists precisely of a series of technical provisions that are more important to liberty

than superficially appears, and whose observance cannot be approved or rejected by the

courts as the times seem to require. Both of these points have been eloquently expressed

by a respected scholar in course of discussing application of the Constitution's guarantee

against removal of judges to officials appointed under Article I but in fact exercising

Article Ill judicial powers:

Mid-twentieth century Americans have become accustomed to assuming

that the central constitutional method of protecting individual freedoms

from being overridden by government ukase is to prevent governmental

intrusions into certain defined zones of individual conduct. Thus, we quite

tightly applaud actions enshrining constitutional rights to freedom of

speech, religion, privacy, and equal protection.

Those who wrote the Constitution, however, d*i not employ this

technique. Rather, they emphasized the virtues of limiting governmental

power and then dividing the remaining power among autonomous

government compartments. Hence, most of our constitutional rights of

individual liberty or autonomy are stated in constitutional amendments.

49a

-50-

The body of the Constitution as originally written is principally an exercise

in applying the concepts of federalism and separation of powers to the new

American nation. The framers were not disciples of John Stuart Mill, who

had not yet been born, but of Montesquieu, whom they had read carefully.

.-+ [P]art of the value of a clearly expressed, constitutional

separation-of-powers principle often inheres in its apparent rigidity or

inability to adapt easily to different solutions. As a nation, one question

we must face every day is how far judges and legis'!ators should be

separated. Many rational answers to that question are possible. The

United States has chosen, by the device of a written constitution, and on

the basis of specific historical experience, to resolve that question at one

time and in one way for almost all cases. To respect that judgment

promotes stability, predictability and consistency, and avoids constant re-

examination of troublesome policy issues underlying the question.

Krattenmaker, Article Il and Judicial Independence: Why the New Bankruptcy Courts are

Unconstitutional, 70 Geo. L.J. 297, 301-02, 311 (1981).

We observe, moreover, that although we have rejected the argument based upon

the doctrine of unconstitutional delegation, the more technical separation-of-powers

requiremezts we have relied upon may serve to further the policy of that doctrine more

effectively than the doctrine itself. Unconstitutional delegation has been invoked by the

federal courts to invalidate legislation only twice in almost 200 years, and the possibility

of such invalidation, at least in modern times, is not a credible deterrent against the

human propensity to leave difficult questions to somebody else. The instances are

‘probably innumerable, however, in which Congress has chosen to decide a difficult issue

itself because of its reluctance to leave the decision — as our holding today reaffirms it

must — to ar officer within the control of the executive branch.

5Va

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

wit )

REPRESENTATIVE MIKE SYNAR, e: al, )

)

Plaintiffs, )

)

ve ) Civil Action No. 85-3945

)

UNITED STATES OF AMERICA, )

Defendant, )

)

UNITED STATES SENATE, )

SPEAKER AND BIPARTISAN LEADERSHIP GROUP OF ) FILED

THE UNITED STATES HOUSE OF REPRESENTATIVES, )

COMPTROLLER GENERAL OF THE UNITED STATES, ) FEB 7 1886

) ‘

Intervenors. )

) JAMES E. DAVEY, Clerk

NATIONAL TREASURY EMPLOYEES UNION,

Plaintiff,

v. Civil Action No. 85-4106

UNITED STATES OF AMERICA,

Defendant,

UNITED STATES SENATE,

SPEAKER AND BIPARTISAN LEADERSHIP GROUP OF

THE UNITED STATES HOUSE OF REPRESENTATIVES,

COMPTROLLER GENERAL OF THE UNITED S? ATES,

Intervenors.

eee eee ee eee 8 La Ee

ORDER

Upon consideration of the pending dispositive motions filed by the parties in the

above actions, the memoranda of points and authorities in support thereof and in

Opposition thereto, and the entire record herein, and all parties having been heard in open

court thereon, and for the reasons stated in the accompanying opinion, it is by the court

this [day of February, 1986,

ORDERED that the automatic deficit reduction process established by the

Balanced Budget and Emergency Deficit Control Act of 1985, under which the President

is required to issue a sequestration order implementing the budget reduction

specifications of a report prepared by the Comptroller General, be, and hereby is,

declared unconstitutional on the ground that it vests executive power in the Comptroller

General, an officer removable by Congress; and it is further

ORDERED that the presidential sequestration order issued on February 1, 1986

pursuant to the unconstitutional automatic deficit reduction process be, and hereby is,

declared without legal force and effect; and it is further

ORDERED that such action is without prejudice to implementation of the

alternate deficit reduction process specifically set forth in section 274(f) of the Act to

cover the eventuality of the invalidation declared above;

ORDERED, pursuant to subsection 274(e) of the Act, that the effect of this

judgment be, and hereby is, stayed during the pendency of any appeal taken under

Cae:

Antonin Scalia, Circuit Judge of

the United States Court of Appeals

for the District of Columbia

Circuit

4,

subsection 274(b) of the Act.

Court for the District 6f Columbia

oe

Oliver Gasch, Senior District Judge

of the United States District Court

for the District of Columbia

52a

' APPENDIX Cc

Let

ONC THE =~ U

UNITED STATES DISTRICT,.COURT

FOR THE DISTRICT 2QK sCORUMBIA

iw

.

REPRESENTATIVE MIKE SYNAR, et al., )

Civil Action

No. 85-4106

Vv.

UNITED STATES OF AMERICA,

Defendant.

me eee ee ee ee ee ee

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that intervening-defendant

Charles A. Bowsher, the Comptrcller General of the United States,

appeals to the Supreme Court of the United States from the order

entered in these actions on February 7, 1986, declaring that the

deficit reduction process established by the Balanced Budget and

WW

we)

Emergency Deficit Control Act of 1985, Pub. L. No. 99-177,

Stat. 1037 ("the act"), is unconstitutional on the ground that it

vests executive power in the Comptroller General, an officer

removable by Congress, and that the presidential sequestration

order issued on February l,

1986 pursuant to that deficit reduc-

tion process is without legal force and effect.

This appeal

Act.

February 7, 1986

is taken pursuant to Section 274(b) of the

Respectfully submitted,

Harry R. Van Cleve

General Counsel

James F. Hinchman

Deputy General Counsel

Robert P. Murphy

Attorney-Adviser

U.S. General Accounting Office

441 G Street, N.W.

Washington, D.C. 20548

Tel. (202) 275-5207

iby Stee,

Lloyd N. Cutler

John H. Pickering

William T. Lake

Michael S. Helfer

Daniel M. Drory

Richard K. Lahne

Wilmer, Cutler & Pickering

1666 K Street, N.W.

Washington, D.C. 20006

Tel. (202) 872-6000

Attorneys for the Comptroller

General of the United States

’ °. | ss APPENDIX D

PUBUG LAS? 99-17

i. J. Res. 372

Rinetp-ninth Congress of the Wnited States of America

AT THE FIRST SESSION

Begun and held at the City of Washington on Thursday, the third day of January,

one thousand nine hundred and eighty-five

Soint Resolution

s increasing the statutory limit on the public debt.

Resolved by the Senate and House of Representatives of the United

States America in Congress assembled, That subsection (b) of

section 3101 of title 31, United States Code, is amended by striking

out the dol’ar limitation contained in such subsection and inserting

in lieu thereof ““$1,847,800,000,000, or $2,078,700,000,000 on and after

October 1, 1985,”.

SEC. 2 MINIMUM CORPORATE TAX BY CORPORATIONS.

(a) Notwithstanding any other provision of this joint resolution,

the Senate Committee on Finance is directed to report to the Senate

by July 1, 1986, legislation providing for payment of an alternative

minimum corporate tax by corporations on the broadest feasible

definition of income to assure that all of those with economic income

pay their fair share of taxes: Provided, That said alternative mini-

mum corporate tax shal] take effect for corporate tax years

commencing on or after October 1, 1986. The revenue raised by this

tax shall be applied to reduce the Federal deficit.

(b) Notwi ing any other provision of this joint resolution,

the Committee on ys and Means is directed to report to the

House of Representatives legislation providing for payment of an

alternative minimum corporate tax by corporations Posed upon the

broadest feasible definition of income to assure that all of those with

economic income pay their fair share of taxes: Provided, That, the

Sata and Means shall report such legislation prior to

SEC. 3. ACHILLE LAURO HLUJACKING.

(a) The Senate finds that—

(1) the four men identified as the hijackers of the Achille

Lauro were responsible for brutally murdering an innocent

American citizen, Leon Klinghoffer, and for terrorizing hun-

dreds of innocent crew members and passengers for two days;

(2) the United States urges all countries to aid in the swift

apgreenen, prosecution, and punishment of the terrorists;

(3) the United States should not tolerate any country provid-

ing safe harbor or safe passage to the terrorists.

(b) It is the sense of the Senate that—

(1) the United States demands that no country provide safe

terrorists;

harbor or safe passage to these

(2) the United States expects full tion of all countries

in the apprehension, prosecution, punishment of these

(3) the United States cannot condone the release of terrorists

or the making of concessions to terrorists; and

(4) the United States identify those individuals le for

the seizure of the Achille Lauro and the murder of

ui

ui

08)

- ——. oo

. -

H. J. Res. 372—2

Leon Klinghoffer, as well as those countries and groups that aid

and abet such terrorist activities, and take the strongest meas-

ures to ensure that those responsible for this brutal act against

an American citizen are brought to justice.

- TLE I—DEFICIT REDUCTION PROCEDURES

SEC. 200. SHORT TITLE AND TABLE OF CONTENTS.

(a) SHort Trriz.—This title may be cited as the “Balanced Budget

and Emergency Deficit Control Act of 1985”.

(b) TABLE oF _

Sec. 200. Short title and table of contents.

_ Past A—Concrgessionat Buncet Process

tinuing study of congressional

227. Early election committees of the House.

Part B—Buvcer Sussrrrep sy Tex PassiwErt

Sec. 241. Submission of President's budget; maximum deficit amount may not be

exceeded.

Sec. 242. Supplemental budget estimates and changes.

Past C—Eaceacency Powzrzs Tro Exmamatz Denicrrs or Excess or Maxmoeum

Dencrr AmourtT

251. of excess deficits.

252. Presidential order.

253. Compli report by Comptroller General.

254 i action.

255. Exempt programs and activities.

Past D—Buvcrtagy Tazarwzrt or Soca: Secuarrr Trust Fuwns

1. Treatment of trust funds.

REEER OF RERREER

&

56a

H. J. Res. 372—3

PART A—CONGRESSIONAL BUDGET PROCESS

Subpart I—Congressiona! Budget

SEC. 201. CONGRESSIONAL BUDGET.

(a)

~ the amount by which total budget outlays for such fiscal year

calculating

~ receipts of the Federal Old-Age and Survivors

DrriIntrions.—

(1) Section 3 of the Congressional Budget and Impoundment

Control Act of 1974 is amended by adding at the end thereof the

following new paragraphs:

“(6) The term ‘deficit’ means, with respect to any fiscal year,

F

exceed total revenues for such fiscal year. In

deficit for purposes of comparison with the maximum deficit

amount under the Balanced Budget and Emergency Deficit

Control Act of 1985 and in calculating the excess deficit

purposes of sections 251 and 252 of such Act (notwithstanding

section 71a) of the Social Security Act), for any fiscal year, the

f

:

>. Fund and the Federal Disability Insurance Trust Fund for such

> fiscal year and the taxes payable under sections 1401(a), 3101(a),

and 3111(a) of the Internal Revenue Code of 1954 during

fiscal year shall be included in total revenues for such

year, and the disbursements of each such Trust Fund for

fiscal year shall be included in total budget outlays for

fiscal year. Notwithstanding any other provision of law

to the extent provided by section 71a) of the Soci

Act, the receipts, revenues, disbursements,

and outlays of each off-budget Federal entity for a

shall be included in total budget authority, total budget

and total revenues and the amounts of budget authority and

outlays set forth for each major functional category, for such

fiscal year. Amounts paid by the Federai Financing Bank for

the purchase of loans made or guaranteed by a t,

agency, or instrumentality of the Government of the United

States shall be treated as outlays of such department, agency, or

instrumentality.

“(7) The term ‘maximum deficit amount’ means--

“(A) with respect to the fiscal year beginning October 1,

1985, $171,900,000,000;

“(B) with respect to the fiscal year beginning October 1,

1986, $144,000,000,000;

“(C) with respect to the fiscal year beginning October 1,

1987, $108,000,000,000;

“(D) with respect to the fiscal year beginning October 1,

1988, $72,000,000,000;

“(E) with respect to the fiscal year beginning October 1,

1989, $36,000,000,000; and

eek en GES S Sip Canes gene Sages ing October 1,

, zero.

“(8) The term ‘off-budget Federal entity’ means any entity

{other than a privatelycwned Government-sponsored entity)}—

“(A) which is established by Federal law, and

“(B) the receipts and disbursements of which are required

by Law to be excluded from the totals of—

if

3 Hy

HL J. Res. 372—4

“() the of the United States Government

submitted by President pursuant to section 1106 of

we ty united States Code, i

wy re ak hi he uthority’ spending author-

term ‘enti a means i

ity described by section 401(cX2XC).

“(10) The term at ony eae etiedy 0 ew

= direct loan obligations or to incur primary loan guarantee

- “@) P sragraph (2) of section 3 of the Congressional Budget

and Lmpoundment Onatrol Act of 1974 i amended by inserting

—— As comma the following: “or to collect offsetting

recei

_&) gt ee, Bupvcer Pxocess.—Title [I of the Congres

sional Budget Act of 1974 is amended to read as follows:

>. “TITLE Il1I—-CONGRESSIONAL BUDGET

be PROCESS

“TIMETABLE

“Sec. 300. The timetable with respect to the congressional budget

process for any fiscal year is as follows:

“On or before Action to be completed:

First Monday after January 3 __.. on ing Lig = -

February 15 ~ submits

February 25 Congitem qosets siene ans extimates

April 1 a ;

ee Sane

April 15. acticn on comcur-

rent resolution on t!.» budget.

May 15 Aaseal eqprcoresiine Lie Gay to ce

sidered in the

dune 10 House i Committee re

dune 15 completes action on reconalia

Jane 310 Bane See Sie eb cama ap

October 1 year begins.

“ANNUAL ADOPTION OF CONCURRENT RESOLUTION ON THE BUDGET

“Sec. 301. (a) Content or Concunrent RESOLUTION ON THE

Bupcet.—On or before April 15 of each year, the Congress shal!

complete action on e pay ve ah Fay the budget for the

fiscal year October 1 of such year. The concurrent

resolution bs gor Pon re we ay - Aa FL!

Sogenien on taaine tal and planning levels for each of

the years,

we nl oe le cre aa dire na

peene ane primary toon gueren commitments;

a yr Federal revenues and the amount, if any, by which

Qc aapenta tel ate ues should be increased or

decreased by bills and resolutions to be reported by the appro-

priate committees;

58a

HJ. Res. 372—5

“(3) the surplus or deficit in the :

“(4) new budget authority, budget outlays, direct loan obliga-

tions, and primary loan guarantee commitments for each major

functional category, based on allocations of the total levels set

forth pursuant to paragraph (1); and

“(5) the public debt.

) ApprmionaL Martrers me Concurrent Reso.turion.—The

concurrent resolution on the budget may—

“(1) set forth, if-required by subsection (f), the calendar year

in which, in the opinion of the Congress, the goals for reducing

oe a on forth in section 4b) of the Employment Act

4 achieved;

“(2) include reconciliation directives described in section 310;

“(3) require a procedure under which all or certain bills or

resolutions providing new budget authority or new entitlement

authority for such fiscal year shall not be enrolled until the

Congress has completed action on any reconciliation bill or

reconciliation resolution or both required by such concurrent

resolution to be reported in accordance with section 310(b); and

“(4) set forth such other matters, and require such other

procedures, relating to the budget, as may be appropriate to

4

ya:

carry out the purposes of this

“(c) CONSIDERATION OF ProcepuRgs on Matrezs WHICH Have Tux

or CHANGING ANY RuLz or tHE House or Representa-

trves.—If the Committee on the Budget of the House of Represent-

atives reports any concurrent resolution on the which

includes any procedure or matter which has the effect i

any rule of the House of Representatives, such concurrent resolution

shall then be referred to the Committee on ules with instructions

to report it within five calendar ““ (not counting any day on

which the House is not in session). The Committee on Rules shal!

have jurisdiction to report any concurrent resolution referred to it

under this paragraph with an amendment or amendments changing

or striking out any such procedure or matter.

“(d) Virws anv Estimates or Orner Commerrezs.—On or before

February 25 of each year, each committee of the House of Rep-

resentatives neve legislative jurisdiction shal] submit to the

Committee on the Budget of the House and each committee of the

Senate having legislative jurisdiction shall submit to the Committee

on the Budget of the Senate its views and estimates (as determined

by the committee making such submission) with respect to all

matters set forth in subsections (a) and (b) which relate to matters

within the jurisdiction or functions of such committee. The Joint

Economic Committee shal! submit to the Committees on the Budget

of both Houses its recommendations as to the fiscal Policy , ~

priate to the goals of the Employment Act of 1946. Any

committee of the House of Representatives or the Senate may

submit to the Committee on the Budget of its House, and any joint

committee of the Congress may submit to the Committees on the

Budget of both Houses, its views and estimates with respect to all

matters set forth in subsections (a) and (b) which relate to matters

within its jurisdiction or functions.

“(e) Hearincs and Report.—In developing the concurrent resolu-

tion on the budget referred to in subsection (a) for each fiscal year,

the Committee on the Budget of each House shal! hold hearings and

shall receive testimony from Members of Congress and such appro-

priate representatives of Federal departments and agencies, the

> ee ee ee ee ee

EL J. Res. 372—6

Scsrab public, and national organizations as the committee deems

irable. Each of the recommendations as to short-term and

medium-term goals set forth in the report submitted by the mem-

hers of the Joint Economic Committee under subsection (d) may be

Considered by the Committee on the Budget of each House as part of

its consideration of such concurrent resolution, and its report may

Teflect its views thereon, including its views on how the estimates of

revenues and levels of budget authority and outlays set forth in

concurrent resolution are designed to achieve any goals it is

ommen . The report accompanying such concurrent resolution

shall inc] but not be limited to—

“(1) a comparison of revenues estimated the committee

with those estimated in the budget submitted by the President;

7 > “(2) a comparison of the appropriate levels of total budget

~ outlays and total new budget authority, total direct loan obliga-

tions, total primary loan revlon, commitments, as set forth

in such concurrent ution, with those estimated or re

4s

any alternative economic assumptions and objectives which the

committee considered;

“(6) projections (not Sehet 0 Ge 08 ), for the period of

aA } hey yt - tlays and pa SA I

ma eve outlays an new

ew the estimated revenues to be received, and the esti-

ref 7 Ah A , for each fiscal year in such

perv § the estimated levels of tax expenditures (the tax

expenditures budget) by major functional ny

‘(7) a statement of any significan . or > the proposed

levels of Federal assistance to State an gy Loe ae =

“(8) information, data, and a 1. icating the

manner in which, and the basis on which, the committee deter-

mined each of the matters set forth in the concurrent resolu

D;

“@) allocations described in section 302(a).

" AGVIn pursuant to section sie of the Employment het of 1946,

‘ on 4c e Employment

the Sesicat semsemmante t in the Economic Report that the

goals for reducing unemployment set forth in section «b) of

cued fiat So aeeaee SS see afar Re Gus & Ge Spans

60a

HL J. Res. 372—7

“(2) After the Congress has expressed its opinion pursuant to

paragraph (1) as to the year in which the goals for reducing

unemployment set forth in section 4b) of the Empl t Act

of 1946 can be achieved, if, pursuant to section 4e) of such Act,

the President recommends in the Economic Report that such

goals be achieved in a year which is different from the in

which the Congress-has expressed its opinion that goals

should be achieved, either in its action pursuant to h

(1) or in its most recent action pursuant to this sapaimaal, the

concurrent resolution on the budget for the fiscal year begin-

ing after the date on which such Economic Report is received

7 2 Senge Say G8 ES Se ep & ee, & Goce

the Congress, such goals can be achieved.

“(3) It shall be in order to amend the provision of such

resolution setting forth such year only if the amendment

thereto ~ od ~~ to alter the estimates, amounts, and levels

(as descri in subsection (a)) set forth in such resolution in

germane fashion in order to be consistent with the economic

. oe (as described in sections X%aX2) and 4(b) of the yr

ct of 1946) which such amendment proposes can be

_ by the year ified in such amendment.

“(g) ComMON nomic AssuMPTIONS.—The joint explanatory

statement accompanying a conference report on a concurrent reso-

lution on the budget shall set forth the common economic assump-

tions upon which such joint statement and conference ry are

based, or upon which any amendment contained in joint

explanatory statement to be proposed by the conferees in the case of

technical disagreement is based.

“(th) Bupcer Coma«rrrezs Consutration Wrra Comorrrzezs.—The

Committee on the Budget of the House of Representatives shall

consult with the committees of its House a ——— jurisdic-

an orcement of the

4

“(1XA) Except as provided in paragraph (2), it shall not be in

order in either the H

consider any concurrent resolution on the for @ fiscal

year under this section, or to consider any t to such a

concurrent resolution, or to consider a conference report on

such a concurrent resolution, if the level of total budget outlays

for such fiscal year that is set forth in such concurrent resolu-

tion or conference report exceeds the recommended level

Federal revenues set forth for that year by an amount that

greater than the maximum deficit amount for such fiscal year

as determined under section X7), or if the adoption of such

amendment would result in a level of total oat outlays for

that fiscal year which exceeds the Fed-

eral revenues for that fiscal year, by an amount that is greater

than the maximum deficit amount for such fiscal year as deter-

i x7

“(B) In the House of tatives the point of order estab-

lished under subparagraph (A) with respect to the consideration

of a conference report or with respect to the consideration of a

motion to concur, with or without an amendment or amend-

ments, in a Senate amendment, the stage of disagreement

having been reached, may be waived only by a vote of three-

6la

H. J. Res. 372—8

fifths of the Members present and voting, a quorum being

present.

“(2) Paragraph (1) of this subsection shall not apply if a

declaration of war by the Congress is in effect.

“COMMITTEE ALLOCATIONS

“Src. 302. (a) ALLOCATION or ToraLs.—

“(l) For the House of Representatives, the joint explanatory

statement accompanying a conference report on a concurrent

resolution on the budget shall include an estimated allocation,

upon such concurrent resolution as recommended in such

conference report, of the appropriate levels of total budget

outlays, total new budget authority, total entitlement authority,

and total credit authority among each committee of the House

of Representatives which has jurisdiction over laws, bills and

resolutions providing such new budget authority, such entitle

ment authority, or such credit authority. The allocation shall,

for each committee, divide new budget authority, entitlement

authority, and credit authority between amounts provided or

required by law on the date of such conference report (manda-

tory or uncontrollable amounts), and amounts not so provided

or required (discretionary or controllable amounts), and shal!

make the same division for estimated outlays that would result

from such new budget authority.

“(2) For the Senate, the joint explanatory statement sccom-

panying a conference report on a concurrent resolution on the

udget shall include an estimated allocation, based upon such

concurrent resolution as recommended in such conference

report, of the appropriate levels of total budget outlays, total

new budget authority and new credit authority —_o

committee of the House of Representatives and the te

which has jurisdiction over bills and resolutions providing such

new budget authority.

“(>) Reports sy Commirrzzs.—As soon as practicable after a

concurrent resolution on the budget is agreed to—

“(1) the Committee on Appropriations of each House shall,

after consulting with the Committee on Appropriations of the

other House, (A) subdivide among its subcommittees the alloca-

tion of — outlays, new budget authority, and new credit

authority allocated to it in the joint explanatory statement

accompanying the conference report on such concurrent resolu-

tion, and (B) further subdivide the amount with respect to each

such subcommittee between controllable amounts and all other

amcunts; and

“(2) every other committee of the House and Senate to which

an allocation was made in such joint explanatory statement

shall, after consulting with the committee or committees of the

other House to which all or part of its allocation was made, (A)

subdivide such allocation among its subcommittees or among

programs over which it has jurisdiction, and (B) further sub-

divide the amount with respect to each subcommittee or pro-

Each = me pa eet ~ RO. os

such committee prom report to its

sions made by it pursuant to this cukesdiion.

ys 4

62a

HJ. Res. 372—9

'“(¢) Ponrr or Oxprx.—It shall not be in order in the House of

Representatives or the Senate to consider any bill or resolution, or

amendment thereto, providing—

“(1) new budget authority for a fiscal year;

“(2) new spending authority as described in section 401(cX2)

- forafiscal year;or -

- “(3) new credit authority for a fiscal year;

within the jurisdiction of any committee which has received an

appropriate allocation of such authority pursuant to subsection (a)

for such fiscal year, unless and until sich committee makes the

allocation or subdivisions required by subsection (b), in connection

with the most recently agreed to concurrent resolution on the

budget for such fiscal ;

“(d) Sussequent ConcurRENT Reso.uTions.—In the case of a

concurrent resolution on the budget referred to in section 304, the

allocations under subsection (a) and the subdivisions under subsec-

tign (b) shall be required only to the extent necessary to take into

account revisions made in the most recently agreed to concurrent

resolution on the budget.

“(e) ALTERATION OF ALLOCATIONS.—At any time after a committee

reports the allocations required to be made under subsection (b),

such committee may report to its House an alteration of such

allocations. Any alteration of such allocations must be consistent

with any actions already taken by its House on legislation within

the committee's jurisdiction.

“(f) LecisLaTion Suasect To Port or Oxper.—

“(]) IN THE HOUSE OF REPRESENTATIVES.—After the

has completed action on a concurrent resolution on the budget

for a fiscal year, it shall not be in order in the House of

Representatives to consider any bill, resolution, or amendment

providing new budget authority for such fiscal year, new entitle

ment authority effective during such fiscal year, or new credit

authority for such fiscal year, or any conference report on any

such bill or resolution, if—

“(A) the enactment of such bill or resolution as reported;

“(B) the adoption and enactment of such amendment; or

“(C) the enactment of such bill or resolution in the form

recommended in such conference report,

would cause the appropriate allocation made pursuant to

subsection (a) for such fiscal year of new discretio budget

——— new entitlement authority, or new credit authority to

ex

“(2) IN THE sENATE.—At any time after the Congress has

completed action on the concurrent resolution on the budget

required to be reported under section 301(a) for a fiscal year, it

shall not be in order in the Senate to consider any bill or

resolution (including a conference report thereon), or any

amendment to a bill or resolution, that provides for budget

outlays or new budget authority in excess of the appropriate

allocation of such outlays or authority reported under

tion (b) in connection with the most recently agreed to concur-

rent resolution on the budget for such fiscal year.

“(g) DeTERMINATIONS BY BuDGET Com™itTTrxrs.—For purposes of

this section, the levels of new budget authority, spending authority

as described in section 401(cX2), outlays, and new credit authority

for a fiscal year shall be determnined on the basis of estimates made

te

a

H. J. Res. 372—10

the Committee on the Budget of the House of Representatives or

e Senate, as the case may be.

“CONCURRENT RESOLUTION ON THE BUDGET MUST BE ADOPTED BEFORE

LEGISLATION PROVIDING NEW BUDGET AUTHORITY, NEW SPENDING

AUTHORITY, NEW CREDIT AUTHORITY, OR CHANGES IN REVENUES OR

THE PUBLIC DEBT LIMIT 18 CONSIDERED

“Sec. 303. (a) In Gewrrat.—It shall not be in order in either the

House of Representatives or the Senate to consider any bill or

ee amendment thereto) as reported to the , Rae or

nate whici i

provides—

“(1) new budget authority for a fiscal year;

“(2) an increase or decrease in revenues to become effective

during a fiscal year;

“(3) an increase or decrease in the public debt limit to become

effective during a fiscal year;

“(4) new entitlement authority to become effective during a

year, or

“(5) new credit authority for a fiscal year,

until the concurrent resolution on the budget for such fiscal year

has been agreed to pursuant to section $01.

X . Exceptions.—Subsection (a) does not apply to any bill or

resolution—

“(1) potting ape bu authority which first becomes

available in a year following the year to which the

concurrent resolution applies; or

“(2) increasing or decreasirg revenues which first become

effective in a fiscal year following the fiscal year to which

concurrent resolution applies.

the House of Representatives to any genera! appropriation

amendment thereto, which provides new budget authority for

fiscal year beginning in such calendar year.

“(c) WAIVER IN THE SENATE.—

the

After May 15 of any calendar year, subsection (a) does not apply in

or

the

“(1) The committee of the Senate which reports any bill or

resclution (or amendment thereto) to which subsection (a) ap-

lies may at or after the time it reports such bill or resolution

or amendment), report a resolution to the Senate pnd ee

for the waiver of subsection (a) with respect to i

resolution (or amendment), and (B) stating the reasons why

waiver is necessary. The resolution shall then be referred to the

Committee on the Budget of the Senate. That committee shall

report the resolution to the Senate within 10 days

resolution is referred to it (not a y day on

Senate is not in session) inning with the day

day on which it is so refe accompanied by that committee's

recommendations and reasons for such recommendations with

respect to the resolution. If the committee does not report the

resolution within such 10-day period, it shall automatically be

discharged from further consideration of the resolution the

resolution shall be placed on the calendar.

(2) During the consideration of any such resolution, debate

shall be limited to one hour, to be equally divided between, and

controlled by, the majority leader and minority leader or their

designees, and the time on any debatable motion or appeal shall

be limited to twenty minutes, to be equally divided between, and

64a

HJ. Res. 372—11

controlled by, the mover and the manager of the resolution. Ix

the event the r of the resolution is in

motion or appeal, Sine & copeeiee Gave aed Fe

trolled by the minority leader or hi i

either of them, may, ‘om the time under their contre! on the

5 ing the consideration of any debatabie motion or appeal. No

© ementanont to the enpeletien te tn enter

“Sec. 304. (a) In GeveraL—At any time after the concurrent

resolution on the budget for a fiscal year has been agreed to

“PROVISIONS RELATING TO THE CONSIDERATION OF CONCURRENT

RESOLUTIONS ON THE BUDGET

“Sec. 305. (a) Procepurs mo House oy Rerzesenratives Arrze

Report or Comomrrrzz; Desarz —

such resolution by the Committee on a to section

301(c) has been available to Members of the

amendment to the motion is not in order, and it is not in order

Be demare Tenvasider the vote by which the motion is agreed to

more than 10 hours, which shal Le divided equate Satneen the

majority and minority ies, plus such itional hours of

bate as are consumed pursuant to paragraph (3). A motion

further to limit debate is not debatable. A motion to recommit

yr #

HJ. Res. 372—12

the concurrent resolution is not in order, and it is not in order

sets

eccnomic goals (a (as described in sections XaX2) and 4b) of the

yy e © Act of — = which the estimates, amounts,

and leve described in section py any forth

resolution are Pe me to ong arp | aA. to offer to

such resolution an amendment relating to such goals, and such

amendment shall be in order only if it also proposes to

such estimates, amounts, and levels in germane fashion in order

to be consistent with the goals proposed in such such amendment.

(5) Consideration of any concurrent resolution on the |

by the House of Representatives shall be in the Committee of

e Whole, and the resolution shall be considered

ment under the five-minute rule in accordance with the ap

a Sate © ee Se XXIII of the Rules of the House of

presentatives. After the Committee rises and reports the

resolution back to the House, the previous question shall be

thereto to final passage without intervening motion; except that

5 he Se & eee & any See eee Rt

standing any other rule or provision of la

ment (or a series of amendments) changing

in the resolution as so reported to ths eaiend aosemery

achieve mathematical consistency.

“(6) Debate in the House of Re tatives on the conference

report on any concurrent resolution on the budget shall be

limited to not more than § hours, which shal be divided

ween majority an minority parties.

limit debate is not debatable. A motion to recommit the con-

ference report is not in order, and it is not in order to move to

SORES Tee SEND Ny SEND in GUITNNED EGET SCENE

or

“(1) Appeals from decisions of the Chair relating to the ap-

plication of the Rules of the House of Representatives to the

i

i

“(b) Proczpurg mw Senate Arrer Report or Commrrrzz; Desatz;

AMENDMENTS.—

*(1) Debate in the Senate on any concurrent resolution on the

budget, and all amendments thereto and debatable motions and

i

|

66a

44

HJ. Res. 372—13

manage ¢ Ge caus eneeie, ns Gaal 6b ene

amen nt to an amendment, debatable motion, or appeal

shzll be limited to 1 hour, to be equally divided between, and

controlled by, the mover and the manager of the concurrent

resolution, except that in the event the of the concur-

chairman and ranking minority member of the Committee on

the Budget of the Senate, there shall be a period of up to four

hours for debate on economic and policies.

“(4) Subject to the other jtations of this Act, only if a

concurrent resolution on the budget —— by the Committee

on the Budget of the Senate sets forth the economi

described in sections XaX2) and 4(b) of the Employment Act of

1946) which the estimates, amounts, and levels (as described in

section 30l(a)) set forth in such resolution are designed to

achieve, shal] it be in order to offer to such resolution an

amendment relating to such goals, and such amendment shall

“(6) Notwithstanding any other rule, an amendment or series

of amendments to a concurrent resolution on the budget pro-

posed in the Senate shall always be in order if such amendment

or series of amendments proposes to change any figure or

figures then contained in such concurrent resolution so as to

make such concurrent resolution mathematically consistent or

so as to maintain such i

“(c) ACTION ON CONFERENCE Reports IN THE SENATE —

“(1) The conference report on any concurrent resolution on

+ dae pape ple Smnhy: apne wary mn be even

ae 6 ae Gems has been disagreed

“(2) During the consideration in the Senate of the conference

report on any concurrent resolution on the budget, debate shal!

be limited to 10 hours, to be equally divided between, and

controlled by, the majority leader and minority leader or their

oad

a |; H.J. Res. 372—14

designees. Debate on any debatable motion or appeal related to

the conference report be limited to 1 hour, to be equally

divided between, and controlled by, the mover and the manager

of the conference report.

“(3) Should the conference report be defeated, debate on any

request for a new conference and the ag ey of conferees

shall be limited to 1 hour, to be equally divided between, and

controlled by, the manager of the erence report and the

minority leader or his designee, and should any motion be made

to instruct the conferees before the conferees are named, debate

on such motion shall be limited to one-half hour, to be equally

divided between, and controlled by, the mover and the manager

of the conference report. Debate on any amendment to any such

instructions shall be limited to 20 minutes, to be equally divi

between and controlled by the mover and the of the

conference report. In all cases when the manager of the con-

ference report is in favor of any motion, appeal, or amendment,

the time in opposition shall be under the control of the minority

leader or his designee.

_ (4) In any case in which there are amendments in disagree

. ment, time on each amendment shal! he limited to 30 minutes,

- to be equally divided between, and controlled by, the manager of

the conference rt and the minority leader or his designee.

No amendment that is not germane to the provisions of such

amendments shall be recei

“(d) Requtrep Action sy Conrerencs Commarres.—If at the end

of 7 da waneeing ey Sundays, and holidays) after

the conferees of Houses have been appointed to a committee of

conference on a concurrent resolution on the the conferees

are unable to reach agreement with respect to all matters in dis-

agreement between the two Houses, then the conferees shall submit

to their respective Houses, on the first day thereafter on which their

House is in session—

“(1) a conference recommending those matters on

4

44

“(2) a conference report in disagreement, if the matter in

disagreement is an amendment which strikes out the entire text

of the concurrent resolution and inserts a substitute text.

“(e) Concurrent Reso.tution Must sg CONSISTENT IN THE

Senate.—It shall not be in order in the Senate to vote on the

question of agreeing to—

“(1) a concurrent resolution on the budget unless the figures

ee a ne Se ay oe

ent; or

“(2) a conference report on a concurrent resolution on the

budget unless the figures contained in such resolution, as rec-

ommended in such conference report, are mathematically

“LEGISLATION DEALING WITH CONGRESSIONAL BUDGET MUST BE

HANDLED BY BUDGET COMMITTEES

“Sec. 306. No bill or resolution, and no amendment to any bill or

resolution, dealing with any matter which is within the jurisdiction

of the Committee on the Budget of either House shall be considered

in that House unless it is a bill or resolution which has been

68a

H. J. Res. 372—15

reported by the Committee on the Budget of that House (or from the

consideration of which such committee has been discharged) or

unless it is an amendment to such a bill or resolution.

“HOUSE COMMITTEE ACTION ON ALL APPROPRIATION BILLS TO BE

COMPLETED BY JUNE 10

“Sec. 307, On or before June 10 of each year, the Committee on

~- Appropriations of the House of ye shall report annual

~ appropriation bills providing new

diction of all of its subcommittees for the fiscal year which begins on

udget authority under the juris-

October 1 of that year.

“REPORTS, SUMMARIES, AND PROJECTIONS OF CONGRESSIONAL BUDGET

ACTIONS

“Sec. 308. (a) Reports on LecistaTion Provioryvc New Bupcer

’-Auruorrry, New Spenpinc Autuorrry, on New Creprr Aurnorrry,

or Provipinc aN Incegase On Decrease IN REVENUES O8 Tax

ITURES.—

“(1) Whenever a committee of either House reports to its

House a bill or resolution, or committee amendment thereto,

providing new budget authority (other than continuing a

priations), new spending authority described in section 401(cX2),

or new credit authority, or provi ing increase or in

revenues or tax expenditures for a year, the report accom-

panying that bill or resolution shall contain a statement, or the

committee shal! make available such a statement in the case of

an approved committee amendment which is not reported to its

House, prepared after consultation with the Director of the

Congressional Budget Office—

“(A) comparing the levels in such measure to the appro-

riate allocations in the reports submitted under section

2(b) for the most recently agreed to concurrent resolution

on the budget for such ve ar

“(B) including an identification of any new

authority d in section 401(cX2) which is contai

in such measure

This text is long and has been trimmed here. Open the source document for the complete record.