First, the Comptroller General is not performing an "executive" function in bringing this suit. A suit to compel a public official to carry out his statutory duties does not usurp the Executive's duty to "execute the laws." If it did, actions of public officials would be free from judicial scrutiny and correction. To "execute laws" is to carry them out, not to bring suit to compel another to carry them out. In this case executing the law is making the funds appropriated by the Congress available for obligation and expenditure. It is no invasion of Executive authority for the courts to entertain suits seeking to ensure that the laws are not flouted by Executive officials but are in fact faithfully executed as the Constitution requires. Second, the Comptroller General is an independent officer of the United States, not a legislative one, who may perform, and has performed for over half a century, both "executive" and "legislative" functions. United States ex rel. Brookfield Construction Co. Inc. v. Stewart, 234 F. Supp. 94 (D.D.C.), aff'd, 119 U.S. App. D.C. 254, 339 F.2d 753 (1964). He is appointed by the President for a term of 15 years, subject to Senate confirmation, and may not be removed except by Congress and for cause. Like other independent agencies and officers, he exercises functions of both the Legislative and Executive Branches, and he has a substantial degree of independence from each. Humphrey's Executor v. United States, 295 U.S. 602 (1935). He brings this suit in his capacity as an independent officer. The constitutionally significant fact is that even if Section 1016 were a grant of authority to the Comptroller General to "execute the laws" as it is not - there is no constitutional barrier to the use of such lawsuits as a means of ensuring adherence to legal standards. Moreover, the Comptroller General's exercise of the power granted him by Section 1016 may also be perceived as a "necessary and proper" measure taken in furtherance of Congress' power over appropriations, and in furtherance of its express authority to define the jurisdiction of the lower federal courts. Furthermore, even if the Comptroller General were not but instead were solely -- as he is - an independent officer an agent of the Congress of Section 1016 would not violate the separation of powers doctrine. The Court of Appeals for this Circuit has expressly upheld the right of a Congressional Committee and even an individual Senator or Congressman to bring suit to require Executive officers to perform an asserted duty under the laws. Senate Select Committe v. Nixon, 162 U.S. App. D.C. 183, 18586, 498 F.2d 725, 727-28 (1974); Kennedy v. Sampson, App. D.C. U.S. 511 F.2d 430 (1974); Mitchell v. Laird, 159 U.S. App. D.C. 344, 346-47, 488 F.2d 611, 613-14 (1973); Rooney v. Lynn, Civil Action No. 2010-73 (D.D.C. July 30, 1974). To bar this action as a violation of the separation of powers is to stand that salutory doctrine on its head. A careful review of the historical and theoretical underpinnings of the separation of powers doctrine demonstrates that allowing this Section 1016 suit by the Comptroller General -- however one may choose to label his Office or functions 11 will enhance the purpose of that doctrine. That purpose was to structure a government so that "its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." The Federalist No. 51 (Hamilton). Granting defendants' motion here would frustrate that precise objective by making executive officers the sole judge of the scope of their own duty to obey the laws. Defendants' further arguments are also untenable. This case does not present a "political question" which courts should not adjudicate. judicial determination It presents a precise issue capable of a determination that Congress and the Executive have expressly authorized and invited by enacting and signing the Impoundment Control Act into law. The Court is not being asked to give an advisory opinion, but to decide a live case and controversy between plainly adverse parties. To accept and decide this case would be a constitutional and statesmanlike judicial step, just as the Impoundment Control Act was itself a constitutional and statesmanlike step by the two coordinate Branches. it would revive the constitutional impasse which the Impoundment Control Act was designed to put to rest. To reject I. ARGUMENT THE IMPOUNDMENT CONTROL ACT IS A BALANCED AND The Impoundment Control Act is the resolution, arrived at through the full play of the political process, of a classic constitutional confrontation. It is part of a statute enacted by Congress and signed by the President. To fully appreciate the implications of defendants' claim that Section 1016 of the Act is unconstitutional, it is necessary briefly to discuss the history of the impoundment controversy and the balanced and statesmanlike manner in which the Act resolved it. A. The Impoundment Control Act Was Worked Out By The controversy over the Executive's power to impound funds appropriated by Congress arose in the context of the budgetary framework provided by the Budget and Accounting Act of 1921, 42 Stat. 20 (codified, as amended, at 31 U.S.C. §§ 1 et seq.), and the Antideficiency Act of 1950, 31 U.S.C. SS 665(c) (d) (1970). The Budget and Accounting Act contained no 5/ provisions authorizing impoundments. The Antideficiency Act granted a narrowly limited authority to place appropriated 5/ To the contrary, the Budget and Accounting Act of 1921 expressly stated that, when a budget deficiency was projected for the ensuing fiscal year, the President "shall make recommendations to Congress for new taxes, loans, or other appropriate action to meet the estimated deficiency." S 202(a), 42 Stat. 21. Thus, by clear implication the Act prohibited unilateral impoundments by the Executive Branch for the purpose of holding down aggregate government spending. funds in reserve in order "to provide for contingencies, or to effect savings (31 U.S.C.), § 665 (c) (2)), but both the legislative history of that Act and the interpretations of that Act by the Bureau of the Budget made it clear that the authority could not be used to nullify congressionally enacted 6/ programs by impounding funds. The Antideficiency Act also provided that existing budget authority could be eliminated only by a congressional rescission (id.) -- a provision that was to be amplified in the Impoundment Control Act of 1974. The impoundment controversy, after simmering quietly 1/ for some 30 years, burst into the open during President Nixon's administration. Those years witnessed the systematic impoundment of funds, running into the billions of dollars, that had been appropriated by Congress for numerous domestic The impoundments prompted challenges in court - - programs. over 80 in all by states, cities, private citizens, private organizations and members of Congress, seeking the release of impounded funds for (among other things) agriculture, education, health, social security, highway construction, 6/ See H.R. Rep. No. 1797, 81st Cong., 2d Sess. 311 (1950); 96 Cong. Rec. 6835-36 (1950); Bureau of the Budget Examiner's Handbook (1952 ed.), quoted in Comptroller General s Opinion of the Legality of Executive Impoundment of Appropriated Funds, Prepared for the Subcomm. on Separation of Powers of the Senate Judiciary Comm., 93d Cong., 2d Sess. 18 (Comm. Print, 1974); Bureau of the Budget, Memorandum to the President: Authority to Reduce Expenditures (Oct. 1961). e.q., 7/ For discussions of the history of impoundment, see, Cooper, Executive Impoundment of Appropriations, in Hearings on Executive Impoundment of Appropriated Funds Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 92d Cong., 1st Sess. 181 (1971); Fisher, The Politics of Impounded Funds, 15 Ad. Sci. Q. 361 (1970); Fisher, Impoundment of Funds: Uses and Abuses, 23 Buff. L. Rev. 141 (1973). |