        S. 421, A Bill to Require the Comptroller General
               to Ascertain Increases in the Cost of
       Major Acquisition Programs of Civilian Agencies and
                   to Limit the Expenditure of
           Federal Funds to Carry Out Those Programs

Proposed legislation, if construed to give the Com ptroller General, a legislative officer, discre­
   tionary authority to review Executive Branch acquisition programs and to cut off funds to
   those program s, w ould violate the constitutional principle o f the separation of powers.

                                                                                     September 23, 1983

       M   em orandum         O p in io n    for th e     A s s is t a n t A t t o r n e y G e n e r a l ,
                                O f f ic e   of   L e g is l a t iv e A f f a ir s


   This responds to your request for the comments of this Office on S. 421,
which establishes a procedure for reporting cost overruns on major civil acqui­
sition programs and requires a cutoff of government funding whenever an over­
run exceeds 25 percent of the initial cost estimate. Section 2(a) of the bill states:
           The Comptroller General shall be responsible for ascertaining
           increases in the cost of each major civil acquisition program and
           compiling statistics on such increases. Such statistics shall be
           compiled from data submitted to the Comptroller General under
           section 3 and from data collected by the Comptroller General in
           the process of carrying out audits and reviews authorized by law.
Section 3 of the bill authorizes the Comptroller General to require submission
of reports on major civil acquisition programs carried out by various govern­
ment agencies.1The reports to the Comptroller General must include a descrip­
tion of the acquisition program, the initial cost estimate for the program,
estimated total cost of the program as of the date of the report, the total amount
of funds authorized, appropriated, and obligated, the estimated date of comple­
tion, reasons for any delay in completion, changes in the quantity or size of the
acquisition program, the reasons for any actual or projected increase in the total
  1 The term “m ajor c iv il acquisition p ro g ram ” is defined by the bill as any construction, acquisition or
procurem ent program (not involving the D epartm ent o f D efense) that is financed entirely with federal funds
and is estim ated to require an eventual to ta l expenditure exceeding $50,000,000.

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cost by more than 25 percent over the initial cost estimate, and actions pro­
posed to control subsequent increases in costs. Section 4 requires that when the
Comptroller General determines that the actual or estimated cost of a program
exceeds the initial cost estimate by 25 percent or more, the Comptroller
General shall transmit notice of this determination to the head of the agency
involved and to Congress. No funds may be obligated or expended on the
program after the date on which the agency receives such notice unless Con­
gress passes a law that provides for authority to obligate and expend funds.
   In our view, this procedure, as currently described by the bill, raises signifi­
cant constitutional questions. In particular, the bill would be a serious breach of
the separation of powers if construed to give the Comptroller General discre­
tionary authority to review Executive Branch programs and, based upon his
own independent determination, cut off funds to those programs. The President
has sole constitutional responsibility for executing the laws adopted by Con­
gress. Article II of the Constitution states in part that “the Executive Power
shall be vested” in the President and that the President “shall take Care that the
Laws be faithfully executed.” By virtue of these provisions, all executive
functions must be placed within the Executive Branch under the control and
direction of the President. H um phrey’s Executor v. United States, 295 U.S. 602
(1935); M yers v. United States, 272 U.S. 52 (1926). Congress may not vest
itself or its appointees with executive powers. Buckley v. Valeo, 424 U.S. 1 (1976).
   This fundamental principle of constitutional law would be breached if the
Comptroller General were granted executive authority. The Comptroller Gen­
eral is not an Executive Branch official subject to Presidential control; rather,
the Comptroller General acts as an advisory arm of Congress. The General
Accounting Office is by statute made “independent of the executive depart­
ments,” 31 U.S.C. § 702(a), and Congress has proclaimed that the Comptroller
General and the GAO are “part of the legislative branch of the Government.”
Reorganization Act of 1949,63 Stat. 205; Reorganization Act of 1945,59 Stat.
616; see also United States Government Manual 1982/83, at 40; Corwin,
Tenure o f Office and the Removal Power, 27 Colum. L. Rev. 354, 396 (1927).
Therefore, under the above principles, Congress may vest the Comptroller
General with authority to assist it in its lawmaking responsibilities, but it may
not grant to the Comptroller General executive authority which is not subject to
the control of the President. The Department of Justice has previously taken the
position before Congress that “as a general principle of constitutional law the
Congress may not vest in its agent, the Comptroller General, the Executive
function of enforcing the law.” Hearings before a Subcomm. o f the House
Comm, on Government O perations on H.R. 12171, 95th Cong., 2d Sess. 72
(1978) (testimony of Lawrence A. Hammond, Deputy Assistant Attorney
General, Office of Legal Counsel).
   Vesting independent authority in the Comptroller General to require a cutoff
of federal funding for acquisition programs would clearly constitute an attempt
to lodge executive authority in an arm of Congress. Reviewing the progress of
Executive Branch programs, making a judgment based upon standards estab­
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lished by Congress, and taking an action that purports to have binding legal
effect on whether those programs may continue is unquestionably an exercise
of executive authority. It would involve the Comptroller General deeply in the
administration of the Executive Branch and give him substantial authority over
the execution of the law. Therefore, such a procedure would breach the consti­
tutionally required separation of powers. In short, Congress can no more vest
this authority in the Comptroller General than Congress could vest it in its own
committees. See 41 Op. Att’y Gen. 230 (1955); 37 Op. Att’y Gen. 56 (1933);
cf. INS v. Chadha, 462 U.S. 919 (1983).*
   This does not mean, of course, that Congress may not by law regulate
procurement by the Executive Branch. For example, Congress certainly could
require that an agency cease spending on an acquisition program if the agency
determined that expenditures would exceed the initial estimate by 25 percent.
The problem in this case is not the particular requirement that Congress wishes
to impose, but rather the mechanism for enforcing that requirement. The
requirement is within Congress’ power to impose, but its execution must
remain within the Executive Branch under the control of the President.
   Therefore, if the statute were adopted as now drafted this Office would
construe the statute, in order to be consistent with the Constitution, as giving
the Comptroller General only a ministerial role in transmitting to Congress
determinations made by executive agencies. Thus, funding could be cut off
only if an executive agency determined in its report that expenditures would
exceed the initial estimate by 25 percent or more. The Comptroller General
would have no independent authority to make such a binding determination and
would simply be required to transmit the agency’s report to Congress.
   However, if Congress wishes to proceed with this legislation, we urge that it
be amended to make it clear that the Comptroller General’s role is purely
ministerial and that the determinative reports will be made by the executive
agencies involved. In particular, § 2 of the bill should be deleted and the bill
should explicitly describe the timing and content of the reports required to be
filed by the executive agencies. This Office objects to the bill unless it is
amended to make this point clear.

                                                                     L a r r y L . S im m s
                                                         D eputy Assistant Attorney General
                                                              Office o f Legal Counsel




  * N O TE: Sub seq u en t to the issuance o f this O ffice o f Legal C ounsel opinion, the Suprem e Court
determ ined in Bowsher v. Synar, 478 U .S . 714, 732-33 (1986), that the C om ptroller General is an agent o f
C ongress, an d therefore cannot be vested with functions that “plainly entaii[] execution o f the law in
constitu tio n al term s.’*

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