|Bowsher v. Synar
626 F.Supp. 1374, affirmed.
[ Burger ]
[ Stevens ]
[ White ]
[ Blackmun ]
Bowsher v. Synar
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CHIEF JUSTICE BURGER delivered the opinion of the Court.
The question presented by these appeals is whether the assignment by Congress to the Comptroller General of the United States of certain functions under the Balanced Budget and Emergency Deficit Control Act of 1985 violates the doctrine of separation of powers.
On December 12, 1985, the President signed into law the Balanced Budget and Emergency Deficit Control Act of 1985, Pub.L. 99-177, 99 Stat. 1038, 2 U.S.C. § 901 et seq. (1982 ed., Supp. III), popularly known as the "Gramm-Rudman-Hollings Act." The purpose of the Act is to eliminate the federal budget deficit. To that end, the Act sets a "maximum deficit amount" for federal spending for each of fiscal years 1986 through 1991. The size of that maximum deficit amount progressively reduces to zero in fiscal year 1991. If in any fiscal year the federal budget deficit exceeds the maximum [p718] deficit amount by more than a specified sum, the Act requires across-the-board cuts in federal spending to reach the targeted deficit level, with half of the cuts made to defense programs and the other half made to nondefense programs. The Act exempts certain priority programs from these cuts. § 255.
These "automatic" reductions are accomplished through a rather complicated procedure, spelled out in § 251, the so-called "reporting provisions" of the Act. Each year, the Directors of the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) independently estimate the amount of the federal budget deficit for the upcoming fiscal year. If that deficit exceeds the maximum targeted deficit amount for that fiscal year by more than a specified amount, the Directors of OMB and CBO independently calculate, on a program-by-program basis, the budget reductions necessary to ensure that the deficit does not exceed the maximum deficit amount. The Act then requires the Directors to report jointly their deficit estimates and budget reduction calculations to the Comptroller General.
The Comptroller General, after reviewing the Directors' reports, then reports his conclusions to the President. § 251(b). The President, in turn, must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General. § 252. There follows a period during which Congress may by legislation reduce spending to obviate, in whole or in part, the need for the sequestration order. If such reductions are not enacted, the sequestration order becomes effective and the spending reductions included in that order are made.
Anticipating constitutional challenge to these procedures, the Act also contains a "fallback" deficit reduction process to take effect "[i]n the event that any of the reporting procedures described in section 251 are invalidated." § 274(f). Under these provisions, the report prepared by the Directors of OMB and the CBO is submitted directly to a specially [p719] created Temporary Joint Committee on Deficit Reduction, which must report in five days to both Houses a joint resolution setting forth the content of the Directors' report. Congress then must vote on the resolution under special rules, which render amendments out of order. If the resolution is passed and signed by the President, it then serves as the basis for a Presidential sequestration order.
Within hours of the President's signing of the Act, [n1] Congressman Synar, who had voted against the Act, filed a complaint seeking declaratory relief that the Act was unconstitutional. Eleven other Members later joined Congressman Synar's suit. A virtually identical lawsuit was also filed by the National Treasury Employees Union. The Union alleged that its members had been injured as a result of the Act's automatic spending reduction provisions, which have suspended certain cost-of-living benefit increases to the Union's members. [n2]
A three-judge District Court, appointed pursuant to 2 U.S.C. § 922(a)(5) (1982 ed., Supp. III), invalidated the reporting provisions. Synar v. United States, 626 F.Supp. 1374 (DC 1986) (Scalia, Johnson, and Gasch, JJ.). The District Court concluded that the Union had standing to challenge the Act, since the members of the Union had suffered actual injury by suspension of certain benefit increases. The District Court also concluded that Congressman Synar and his fellow Members had standing under the so-called "congressional standing" doctrine. See Barnes v. Kline, 245 U.S.App.D.C. 1, 21, 759 F.2d 21, 41 (1985), cert. granted sub nom. Burke v. Barnes, 475 U.S. 1044 (1986). [p720]
The District Court next rejected appellees' challenge that the Act violated the delegation doctrine. The court expressed no doubt that the Act delegated broad authority, but delegation of similarly broad authority has been upheld in past cases. The District Court observed that, in Yakus v. United States, 321 U.S. 414, 420 (1944), this Court upheld a statute that delegated to an unelected "Price Administrator" the power "to promulgate regulations fixing prices of commodities." Moreover in the District Court's view, the Act adequately confined the exercise of administrative discretion. The District Court concluded 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.
626 F.Supp. at 1389.
Although the District Court concluded that the Act survived a delegation doctrine challenge, it held that the role of the Comptroller General in the deficit reduction process violated the constitutionally imposed separation of powers. The court first explained that the Comptroller General exercises executive functions under the Act. However, the Comptroller General, while appointed by the President with the advice and consent of the Senate, is removable not by the President but only by a joint resolution of Congress or by impeachment. The District Court reasoned that this arrangement could not be sustained under this Court's decisions in Myers v. United States, 272 U.S. 52 (1926), and Humphrey's Executor v. United States, 295 U.S. 602 (1935). Under the separation of powers established by the Framers of the Constitution, the court concluded, Congress may not retain the power of removal over an officer performing executive functions. The congressional removal power created a "here-and-now subservience" of the Comptroller General to Congress. 626 F.Supp. at 1392. The District Court therefore held that, [p721]
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 are central cannot be implemented.
Id. at 1403.
Appeals were taken directly to this Court pursuant to § 274(b) of the Act. We noted probable jurisdiction and expedited consideration of the appeals. 475 U.S. 1009 (1986). We affirm.
A threshold issue is whether the Members of Congress, members of the National Treasury Employees Union, or the Union itself have standing to challenge the constitutionality of the Act in question. It is clear that members of the Union, one of whom is an appellee here, will sustain injury by not receiving a scheduled increase in benefits. See § 252(a)(6)(C)(i); 626 F.Supp. at 1381. This is sufficient to confer standing under § 274(a)(2) and Article III. We therefore need not consider the standing issue as to the Union or Members of Congress. See Secretary of Interior v. California, 464 U.S. 312, 319, n. 3 (1984). Cf. Automobile Workers v. Brock, 477 U.S. 274 (1986); Barnes v. Kline, supra. Accordingly, we turn to the merits of the case.
We noted recently that
[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.
INS v. Chadha, 462 U.S. 919, 951 (1983). The declared purpose of separating and dividing the powers of government, of course, was to "diffus[e] power the better to secure liberty." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Justice Jackson's words echo the famous warning of Montesquieu, [p722] quoted by James Madison in The Federalist No. 47, that "‘there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates'. . . ." The Federalist No. 47, p. 325 (J. Cooke ed.1961).
Even a cursory examination of the Constitution reveals the influence of Montesquieu's thesis that checks and balances were the foundation of a structure of government that would protect liberty. The Framers provided a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch responsible ultimately to the people. The Framers also provided for a Judicial Branch equally independent, with "[t]he judicial Power . . . extend[ing] to all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States." Art. III, § 2.
Other, more subtle, examples of separated powers are evident as well. Unlike parliamentary systems such as that of Great Britain, no person who is an officer of the United States may serve as a Member of the Congress. Art. I, § 6. Moreover, unlike parliamentary systems, the President, under Article II, is responsible not to the Congress, but to the people, subject only to impeachment proceedings which are exercised by the two Houses as representatives of the people. Art. II, § 4. And even in the impeachment of a President, the presiding officer of the ultimate tribunal is not a member of the 1egislative Branch, but the Chief Justice of the United States. Art. I, § 3.
That this system of division and separation of powers produces conflicts, confusion, and discordance at times is inherent, but it was deliberately so structured to assure full, vigorous, and open debate on the great issues affecting the people, and to provide avenues for the operation of checks on the exercise of governmental power.
The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts. The President appoints "Officers of the United States" with the "Advice and Consent of [p723] the Senate. . . ." Art. II, § 2. Once the appointment has been made and confirmed, however, the Constitution explicitly provides for removal of Officers of the United States by Congress only upon impeachment by the House of Representatives and conviction by the Senate. An impeachment by the House and trial by the Senate can rest only on "Treason, Bribery or other high Crimes and Misdemeanors." Art. II, § 4. A direct congressional role in the removal of officers charged with the execution of the laws beyond this limited one is inconsistent with separation of powers.
This was made clear in debate in the First Congress in 1789. When Congress considered an amendment to a bill establishing the Department of Foreign Affairs, the debate centered around whether the Congress
should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate.
Myers, 272 U.S. at 114. James Madison urged rejection of a congressional role in the removal of Executive Branch officers, other than by impeachment, saying in debate:
Perhaps there was no argument urged with more success, or more plausibly grounded against the Constitution, under which we are now deliberating, than that founded on the mingling of the Executive and Legislative branches of the Government in one body. It has been objected, that the Senate have too much of the Executive power even, by having a control over the President in the appointment to office. Now, shall we extend this connexion between the Legislative and Executive departments, which will strengthen the objection, and diminish the responsibility we have in the head of the Executive?
1 Annals of Cong. 380 (1789). Madison's position ultimately prevailed, and a congressional role in the removal process was rejected. This "Decision of 1789" provides "contemporaneous and weighty evidence" of the Constitution's meaning, since many of the Members of the [p724] First Congress "had taken part in framing that instrument." Marsh v. Chambers, 463 U.S. 783, 790 (1983). [n3]
This Court first directly addressed this issue in Myers v. United States, 272 U.S. 52 (1925). At issue in Myers was a statute providing that certain postmasters could be removed only "by and with the advice and consent of the Senate." The President removed one such Postmaster without Senate approval, and a lawsuit ensued. Chief Justice Taft, writing for the Court, declared the statute unconstitutional on the ground that 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. at 161.
A decade later, in Humphrey's Executor v. United States, 295 U.S. 602 (1935), relied upon heavily by appellants, a Federal Trade Commissioner who had been removed by the President sought backpay. Humphrey's Executor involved an issue not presented either in the Myers case or in this case -- i.e., the power of Congress to limit the President's powers of removal of a Federal Trade Commissioner. [p725] 295 U.S. at 630. [n4] The relevant statute permitted removal "by the President," but only "for inefficiency, neglect of duty, or malfeasance in office." Justice Sutherland, speaking for the Court, upheld the statute, holding that "illimitable power of removal is not possessed by the President [with respect to Federal Trade Commissioners]." Id. at 628-629. The Court distinguished Myers, reaffirming its holding that congressional participation in the removal of executive officers is unconstitutional. Justice Sutherland's opinion for the Court also underscored the crucial role of separated powers in our system:
The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others has often been stressed, and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution, and in the rule which recognizes their essential co-equality.
295 U.S. at 629-630. The Court reached a similar result in Wiener v. United States, 357 U.S. 349 (1958), concluding that, under Humphrey's Executor, the President did not have unrestrained [p726] removal authority over a member of the War Claims Commission.
In light of these precedents, we conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. As the District Court observed:
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.
626 F.Supp. at 1401. The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.
Our decision in INS v. Chadha, 462 U.S. 919 (1983), supports this conclusion. In Chadha, we struck down a one-House "legislative veto" provision by which each House of Congress retained the power to reverse a decision Congress had expressly authorized the Attorney General to make:
Disagreement with the Attorney General's decision on Chadha's deportation -- that is, Congress' decision to deport Chadha -- no less than Congress' original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way: bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.
Id. at 954-955. To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over [p727] the execution of the laws, Chadha makes clear, is constitutionally impermissible.
The dangers of congressional usurpation of Executive Branch functions have long been recognized.
[T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of 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. 1, 129 (1976). Indeed, we also have observed only recently that
[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.
Chadha, supra, at 951. With these principles in mind, we turn to consideration of whether the Comptroller General is controlled by Congress.
Appellants urge that the Comptroller General performs his duties independently and is not subservient to Congress. We agree with the District Court that this contention does not bear close scrutiny.
The critical factor lies in the provisions of the statute defining the Comptroller General's office relating to removability. [n5] Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, see 31 U.S.C. [p728] § 703(a)(2), [n6] and confirmed by the Senate, he is removable only at the initiative of Congress. He may be removed not only by impeachment, but also by joint resolution of Congress "at any time" resting on any one of the following bases:
(i) permanent disability;
(iii) neglect of duty;
(iv) malfeasance; or
(v) a felony or conduct involving moral turpitude.
felt that [the Comptroller General] should be brought under the sole control of Congress, so that Congress, at any moment when it found he was inefficient and was not carrying on the duties of his office as he should and as the Congress expected, could remove him without the long tedious process of a trial by impeachment.
61 Cong.Rec. 1081 (1921).
The removal provision was an important part of the legislative scheme, as a number of Congressmen recognized. Representative Hawley commented:
[H]e is our officer, in a measure, getting information for us. . . . If he does not do his work properly, we, as practically his employers, ought to be able to discharge him from his office.
58 Cong.Rec. 7136 (1919). Representative Sisson observed that the removal provisions would give "[t]he Congress of the United States . . . absolute control of the man's destiny in office." [p729]
61 Cong.Rec. 987 (1921). The ultimate design was to "give the legislative branch of the Government control of the audit not through the power of appointment, but through the power of removal." 58 Cong.Rec. 7211 (1919) (Rep. Temple).
JUSTICE WHITE contends:
The statute does not permit anyone to remove the Comptroller at will; removal is permitted only for specified cause, with the existence of cause to be determined by Congress following a hearing. Any removal under the statute would presumably be subject to post-termination judicial review to ensure that a hearing had in fact been held and that the finding of cause for removal was not arbitrary.
Post at 770. That observation by the dissenter rests on at least two arguable premises: (a) that the enumeration of certain specified causes of removal excludes the possibility of removal for other causes, cf. Shurtleff v. United States, 189 U.S. 311, 315-316 (1903); and (b) that any removal would be subject to judicial review, a position that appellants were unwilling to endorse. [n8]
Glossing over these difficulties, the dissent's assessment of the statute fails to recognize the breadth of the grounds for removal. The statute permits removal for "inefficiency," "neglect of duty," or "malfeasance." These terms are very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will. The Constitutional Convention chose to permit impeachment of executive officers only for "Treason, Bribery, or other high Crimes and Misdemeanors." It rejected language that would have permitted impeachment for "maladministration," with Madison [p730] arguing that "[s]o vague a term will be equivalent to a tenure during pleasure of the Senate." 2 M. Farrand, Records of the Federal Convention of 1787, p. 550 (1911).
We need not decide whether "inefficiency" or "malfeasance" are terms as broad as "maladministration" in order to reject the dissent's position that removing the Comptroller General requires "a feat of bipartisanship more difficult than that required to impeach and convict." Post at 771 (WHITE, J., dissenting). Surely no one would seriously suggest that judicial independence would be strengthened by allowing removal of federal judges only by a joint resolution finding "inefficiency," "neglect of duty," or "malfeasance."
JUSTICE WHITE, however, assures us that "[r]ealistic consideration" of the "practical result of the removal provision," post at 773, 774, reveals that the Comptroller General is unlikely to be removed by Congress. The separated powers of our Government cannot be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress. The Framers recognized that, in the long-term, structural protections against abuse of power were critical to preserving liberty. In constitutional terms, the removal powers over the Comptroller General's office dictate that he will be subservient to Congress.
This much said, we must also add that the dissent is simply in error to suggest that the political realities reveal that the Comptroller General is free from influence by Congress. The Comptroller General heads the General Accounting Office (GAO), "an instrumentality of the United States Government independent of the executive departments," 31 U.S.C. § 702(a), which was created by Congress in 1921 as part of the Budget and Accounting Act of 1921, 42 Stat. 23. Congress created the office because it believed that it "needed an officer, responsible to it alone, to check upon the application of public funds in accordance with appropriations." H. Mansfield, [p731] The Comptroller General: A Study in the Law and Practice of Financial Administration 65 (1939).
It is clear that Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. The Reorganization Acts of 1945 and 1949, for example, both stated that the Comptroller General and the GAO are "a part of the legislative branch of the Government." 59 Stat. 616; 63 Stat. 205. Similarly, in the Accounting and Auditing Act of 1950, Congress required the Comptroller General to conduct audits "as an agent of the Congress." 64 Stat. 835.
Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. In one of the early Annual Reports of Comptroller General, the official seal of his office was described as reflecting
the independence of judgment to be exercised by the General Accounting Office, subject to the control of the legislative branch. . . . The combination represents an agency of the Congress independent of other authority auditing and checking the expenditures of the Government as required by law and subjecting any questions arising in that connection to quasijudicial determination.
GAO Ann. Rep. 5-6 (1924). Later, Comptroller General Warren, who had been a Member of Congress for 15 years before being appointed Comptroller General, testified:
During most of my public life, . . . I have been a member of the legislative branch. Even now, although heading a great agency, it is an agency of the Congress, and I am an agent of the Congress.
To Provide for Reorganizing of Agencies of the Government: Hearings on H.R. 3325 before the House Committee on Expenditures, 79th Cong., 1st Sess., 69 (1945) (emphasis added). And, in one conflict during Comptroller General McCarl's tenure, he asserted his independence of the Executive Branch, stating:
Congress . . . is . . . the only authority to which there lies an appeal from the decision of this office. . . . [p732]
. . . I may not accept the opinion of any official, inclusive of the Attorney General, as controlling my duty under the law.
2 Comp.Gen. 784, 786-787 (1923) (disregarding conclusion of the Attorney General, 33 Op.Atty.Gen. 476 (1923), with respect to interpretation of compensation statute).
Against this background, we see no escape from the conclusion that, because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers. The remaining question is whether the Comptroller General has been assigned such powers in the Balanced Budget and Emergency Deficit Control Act of 1985.
The primary responsibility of the Comptroller General under the instant Act is the preparation of a "report." This report must contain detailed estimates of projected federal revenues and expenditures. The report must also specify the reductions, if any, necessary to reduce the deficit to the target for the appropriate fiscal year. The reductions must be set forth on a program-by-program basis.
In preparing the report, the Comptroller General is to have "due regard" for the estimates and reductions set forth in a joint report submitted to him by the Director of CBO and the Director of OMB, the President's fiscal and budgetary adviser. However, the Act plainly contemplates that the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates. The Act also provides that the Comptroller General's report "shall explain fully any differences between the contents of such report and the report of the Directors." § 251(b)(2).
Appellants suggest that the duties assigned to the Comptroller General in the Act are essentially ministerial and mechanical, so that their performance does not constitute "execution of the law" in a meaningful sense. On the contrary, we view these functions as plainly entailing execution [p733] of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law. Under § 251, the Comptroller General must exercise judgment concerning facts that affect the application of the Act. He must also interpret the provisions of the Act to determine precisely what budgetary calculations are required. Decisions of that kind are typically made by officers charged with executing a statute.
The executive nature of the Comptroller General's functions under the Act is revealed in § 252(a)(3), which gives the Comptroller General the ultimate authority to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation (with exceptions not relevant to the constitutional issues presented), the directive of the Comptroller General as to the budget reductions:
The [Presidential] order must provide for reductions in the manner specified in section 251(a)(3), must incorporate the provisions of the [Comptroller General's] report submitted under section 251(b), and must be consistent with such report in all respects. The President may not modify or recalculate any of the estimates, determinations, specifications, bases, amounts, or percentages set forth in the report submitted under section 251(b) in determining the reductions to be specified in the order with respect to programs, projects, and activities, or with respect to budget activities, within an account. . . .
§ 252(a)(3) (emphasis added). See also § 251(d)(3)(A).
Congress, of course, initially determined the content of the Balanced Budget and Emergency Deficit Control Act, and undoubtedly the content of the Act determines the nature of the executive duty. However, as Chadha makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution [p734] of its enactment only indirectly -- by passing new legislation. Chadha, 462 U.S. at 958. By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by itself, Congress, in effect, has retained control over the execution of the Act, and has intruded into the executive function. The Constitution does not permit such intrusion.
We now turn to the final issue of remedy. Appellants urge that, rather than striking down § 251 and invalidating the significant power Congress vested in the Comptroller General to meet a national fiscal emergency, we should take the lesser course of nullifying the statutory provisions of the 1921 Act that authorizes Congress to remove the Comptroller General. At oral argument, counsel for the Comptroller General suggested that this might make the Comptroller General removable by the President. All appellants urge that Congress would prefer invalidation of the removal provisions, rather than invalidation of § 251 of the Balanced Budget and Emergency Deficit Control Act.
Severance at this late date of the removal provisions enacted 65 years ago would significantly alter the Comptroller General's office, possibly by making him subservient to the Executive Branch. Recasting the Comptroller General as an officer of the Executive Branch would, accordingly, alter the balance that Congress had in mind in drafting the Budget and Accounting Act of 1921 and the Balanced Budget and Emergency Deficit Control Act, to say nothing of the wide array of other tasks and duties Congress has assigned the Comptroller General in other statutes. [n9] Thus, appellants' [p735] argument would require this Court to undertake a weighing of the importance Congress attached to the removal provisions in the Budget and Accounting Act of 1921, as well as in other subsequent enactments, against the importance it placed on the Balanced Budget and Emergency Deficit Control Act of 1985.
Fortunately this is a thicket we need not enter. The language of the Balanced Budget and Emergency Deficit Control Act itself settles the issue. In § 274(f), Congress has explicitly provided "fallback" provisions in the Act that take effect "[i]n the event . . . any of the reporting procedures described in section 251 are invalidated." § 274(f)(1) (emphasis added). The fallback provisions are "‘fully operative as a law,'" Buckley v. Valeo, 424 U.S. at 108 (quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234 (1932)). Assuming that appellants are correct in urging that this matter must be resolved on the basis of congressional intent, the intent appears to have been for § 274(f) to be given effect in this situation. Indeed, striking the removal provisions would lead to a statute that Congress would probably have refused to adopt. As the District Court concluded:
[T]he 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. . . .
626 F.Supp. at 1394. [p736] Accordingly, rather than perform the type of creative and imaginative statutory surgery urged by appellants, our holding simply permits the fallback provisions to come into play. [n10]
No one can doubt that Congress and the President are confronted with fiscal and economic problems of unprecedented magnitude, but
the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives -- or the hallmarks -- of democratic government. . . .
Chadha, supra, at 944.
We conclude that the District Court correctly held that the powers vested in the Comptroller General under § 251 violate the command of the Constitution that the Congress play no direct role in the execution of the laws. Accordingly, the judgment and order of the District Court are affirmed.
Our judgment is stayed for a period not to exceed 60 days to permit Congress to implement the fallback provisions.
It is so ordered.
* Together with No 85-1378, United States Senate v. Synar, Member of Congress. et al., and No. 85-1379, O'Neill, Speaker of the United States House of Representatives, et al v. Synar Member of Congress, et al., also on appeal from the same court.
1. In his signing statement, the President expressed his view that the Act was constitutionally defective because of the Comptroller General's ability to exercise supervisory authority over the President. Statement on Signing H.J.Res. 372 Into Law, 21 Weekly Comp. of Pres.Doc. 1491 (1985).
2. An individual member of the Union was later added as a plaintiff. See 475 U.S. 1094 (1986).
3. The First Congress included 20 Members who had been delegates to the Philadelphia Convention:
IN THE SENATE
Richard Bassett (Delaware) Rufus King (New York)
Pierce Butler (South Carolina) John Langdon (New Hampshire)
Oliver Ellsworth (Connecticut) Robert Morris (Pennsylvania)
William Few (Georgia) William Paterson (New Jersey)
William Samuel Johnson George Read (Delaware (Connecticut)
Caleb Strong (Massachusetts)
IN THE HOUSE
Abraham Baldwin (Georgia) Nicholas Gilman (New Hampshire)
Daniel Carroll (Maryland) James Madison (Virginia)
George Clymer (Pennsylvania) Roger Sherman (Connecticut)
Thomas FitzSimons (Pennsylvania) Hugh Williamson (North Carolina)
Elbridge Gerry (Massachusetts)
4. Appellants therefore are wide of the mark in arguing that an affirmance in this case requires casting doubt on the status of "independent" agencies, because no issues involving such agencies are presented here. The statutes establishing independent agencies typically specify either that the agency members are removable by the President for specified causes, see, e.g., 15 U.S.C. § 41 (members of the Federal Trade Commission may be removed by the President "for inefficiency, neglect of duty, or malfeasance in office"), or else do not specify a removal procedure, see, e.g., 2 U.S.C. § 437c (Federal Election Commission). This case involves nothing like these statutes, but rather a statute that provides for direct congressional involvement over the decision to remove the Comptroller General. Appellants have referred us to no independent agency whose members are removable by the Congress for certain causes short of impeachable offenses, as is the Comptroller General, see Part IV infra
5. We reject appellants' argument that consideration of the effect of a removal provision is not "ripe" until that provision is actually used. As the District Court concluded,
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.
Synar v. United States, 626 F.Supp. 1374, 1392 (DC 1986). The Impeachment Clause of the Constitution can hardly be thought to be undermined because of nonuse.
6. Congress adopted this provision in 1980 because of "the special interest of both Houses in the choice of an individual whose primary function is to provide assistance to Congress." S.Rep. No. 96-570, p. 10.
7. Although the President could veto such a joint resolution, the veto could be overridden by a two-thirds vote of both Houses of Congress. Thus, the Comptroller General could be removed in the face of Presidential opposition. Like the District Court, 626 F.Supp. at 1393, n. 21, we therefore read the removal provision as authorizing removal by Congress alone.
8. The dissent relies on Humphrey's Executor v. United States, 295 U.S. 602 (1935), as its only Court authority for this point, but the President did not assert that he had removed the Federal Trade Commissioner in compliance with one of the enumerated statutory causes for removal. See id. at 612 (argument of Solicitor General Reed); see also Synar v. United States, 626 F.Supp. at 1398.
9. Since 1921, the Comptroller General has been assigned a variety of functions. See, e.g., 2 U.S.C. § 687 (1982 ed., Supp. III) (duty to bring suit to require release of impounded budget authority); 42 U.S.C. § 6384(a) (duty to impose civil penalties under the Energy Policy and Conservation Act of 1975);15 U.S.C. § 1862 (member of Chrysler Corporation Loan Guarantee Board); 45 U.S.C. § 711(d)(1)(C) (member of Board of Directors of United States Railway Association); 31 U.S.C. §§ 3551-3556 (1982 ed., Supp. III) (authority to consider bid protests under Competition in Contracting Act of 1984).
10. Because we conclude that the Comptroller General, as an officer removable by Congress, may not exercise the powers conferred upon him by the Act, we have no occasion for considering appellees' other challenges to the Act, including their argument that the assignment of powers to the Comptroller General in § 251 violates the delegation doctrine, see, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Yakus v. United States, 321 U.S. 414 (1944).