Bowsher v. Synar- Good-bye Gramm-Rudman

t Burger1986. This case invalidated the Gramm-Rudman Actbecause the Act violates the separation of powers. Congress may not reserve to itself the power to remove an executive officer for cause, at least where the definition of “cause” is fairly broad.

t Facts. The Gramm-Rudman Act, Congress’ attempt to reduce federal budget deficits, set a “maximum deficit amount” for each of the fiscal years 1986-1991. The size of the maximum allowable deficit was reduced each year, until it was to become zero in 1991. In any year in which the deficit exceeded the maximum deficit amount, the Act required across-the-board cuts in federal spending to meet the targeted amount. These cuts were “automatic” in the sense that they were essentially pro-rata (half to defense programs and the other half to non-defense programs).

n Role of Comptroller-General. The Act gave a key role to the Comptroller General of the U.S. in carrying out the automatic cut provisions. The Comptroller was to review budget estimates given to him by two federal agencies, and then submit to the President a report stating on a program-by-program basis how much needed to be cut. The President was then required to issue an order mandating the reductions specified by the Comptroller. Congress could then, by special legislation, reduce spending to eliminate the need for some or all of the cuts; if it did not do so, the cuts called for in the presidential order were to be automatically carried out.

n Right to Remove Comptroller. By separate, much older, legislation, Congress reserved to itself the right to remove the Comptroller General from office for five specified reasons (“permanent disability,” “inefficiency,” “neglect of duty,” “malfeasance,” or “a felony or conduct involving moral turpitude.”) In the 80-odd years since the post of Comptroller General was established, Congress had never exercised, or even made a serious move to exercise, this removal power.

t Statute struck down. By a 7-2 vote, SCt struck down the automatic-reduction provisions of the Act. In doing so, the SCt applied the following reasoning:

n Act uses the Comptroller’s “executive powers;”

n Executive powers may not be vested by Congress in itself or its agents, because Congress is limited to legislative rather than executive functions.

n Because Congress can remove the Comptroller, he is an agent of Congress;

n Therefore, the Comptroller may not constitutionally exercise the executive powers given to him in the Act, and

n The Act’s automatic budget reduction mechanism, which is based on the Comptroller’s exercise of his executive powers, must be invalidated.

t Nature of Removal Power. The most novel aspect of majority’s reasoning is its assertion that the retention by Congress of the right to remove an executive officer for certain specified types of cause converts that officer into an agent of Congress. The majority stressed that several of the types of cause (“inefficiency,” “neglect of duty,” and “malfeasance”) 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.” Also, it was not clear to the majority that there could be judicial reviewof any removal. Furthermore, there was evidence that both Congress and the Comptroller General himself view him as being “an office of the Legislative Branch.”

t Concurrence - Stevens, Marshall. Agreed with majority that Comptroller was an agent of Congress. But they disagreed that it was Congress’ right to remove him that made him such – rather, it was the fact that the bulk of his duties are directed at, and for the benefit of, Congress instead of the executive branch.

n The concurring justices sharply disagreed with the majority’s view that the powers exercised by the Comptroller under the Act are executive. They believed that these powers were “legislative,” because they involved the making of broad policy determinations. Consequently, just as Congress could not delegate part of its legislative authority to the Attorney General for deportation decisions (as SCt held in Chadha), so it could not delegate these powers to the Comptroller General. In particular, these legislative functions could only be carried out via the passage by both Houses of a law that is then signed by the President (bicameral and presentment requirements of USC).

t Dissent - White. White argued the majority opinion was too formalistic and ignored the realities of the problem that Congress is trying to address.

n The SCt’s technical argument has nothing to do with the concerns that underlie the separation of powers. The constitutional test should be “whether the Act so alters the balance of authority among the branches of government as to pose a genuine threat to the basic division between the lawmaking power and the power to execute the law.”

n No such threat is presented here: Whitecontended that Congress’ retention of the right to remove the Comptroller for specified causes did not convert him into an agent of Congress. “Common sense indicates that the existence of the removal provision poses no such threat to the principle of separation of powers.” So the statute should be upheld.

n White’s reasoning here was much like that of his dissent in Chadha. It avoids the vices of formalism, but it id not clear whether White has any theory of separation of powersthat could predictably determine whether, in any given case, there has been a violation.

Date: 2015-01-02; view: 619