              Constitutionality of Legislation Establishing the
                     Cost Accounting Standards Board

If th e C o st A c c o u n tin g S tan d ard s B oard (C A S B ) is v iew ed as an E x e c u tiv e B ran ch
  en tity , th e sta tu to ry m echanism for ap p o in tin g its m em bers is u n co n stitu tio n al u n d e r th e
  A p p o in tm en ts C lause; h o w e v e r, it ca n be a rg u ed th at th e C A S B is a L eg islativ e
   B ran ch en tity , an d th at its a c tio n in p ro m u lg a tin g co st a c c o u n tin g sta n d a rd s is ad v iso ry
  w ith resp ect to ex ecu tiv e agencies.
T h e D e p a rtm e n t o f Ju stice has a d u ty to d efen d th e co n stitu tio n ality o f a sta tu te ex cep t in
   ex cep tio n al circu m stan ces, and it th u s m ay be a p p ro p ria te to b rin g to a c o u r t’s a tte n tio n
   any p lausible a rg u m e n t th at w o u ld perm it th e c o u rt to u p h o ld a statute.

                                                                                                    June 19, 1980
MEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY
          G EN ER A L, CIV IL DIVISION

   This responds to your memorandum informing us of the position
your Division plans to take in pending litigation regarding the constitu­
tionality of the statute establishing the Cost Accounting Standards
Board (CASB), Pub. L. No. 91-379, Title I, 84 Stat. 796, 50 U.S.C.
App. § 2151 et seq. Since receiving your memorandum, we have kept in
touch with the staff attorney in your Division handling the matter, and
have learned that the constitutional issue has not yet been briefed. We
believe that the position elaborated in your m em orandum 's persuasive.
We essentially agree with your analysis that, insofar as the CASB is
viewed as an Executive Branch entity whose members are to be
appointed pursuant to the Appointments Clause of the Constitu­
tion, Art. II, § 2, cl. 2, the statute establishing the CASB is unconstitu­
tional because the mechanism it creates for appointing members is not
in conformity with that clause.1
   Although you have not formally asked for our opinion on the consti­
tutional issue, because of its importance we wish to take this opportu­
nity to comment. We think that an additional, plausible argument could

   1 T h e C A SB com prises the C om ptroller G eneral and four o thers appointed by him. A lthough the
C om ptroller G en eral—w ho is appointed by the President by and w ith the advice and consent o f the
Senate, see 31 U.S.C. § 4 2 —is appointed in conform ity w ith the A ppointm ents Clause, the o th e r four
m embers are not. F o r the C om ptroller G eneral is p roperly view ed as a Legislative Branch official, and
thus not as “h ead ” o f a ’‘D ep artm en t” for purposes o f the A ppointm ents Clause. See Buckley v. Valeo.
424 U - S ,l, 127 (1976); 31 U.S.C. §43, 53, 65(d); Reorganization A ct o f 1949, 63 Stat. 205; R eorganiza­
tion A ct o f 1945, 59 Stat. 616; C orw in, Tenure o f Office and the Removal Power, 27 C olum . L. Rev.
353, 396 (1927); W. W illoughby, T he Legal Status and Functions o f the G eneral A ccounting O ffice o f
the National G overnm ent 12-16 (1927); c f H. Mansfield, T h e C o m p troller G eneral 74-92 (1939).


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be made that would permit a court to uphold the statute. Given the
Department’s duty to defend the constitutionality of statutes except in
exceptional circumstances, it may well be appropriate to bring this
argument to the court’s attention.
   At bottom, your analysis would appear to presume that the statute
establishing the CASB and providing that its cost accounting standards
“shall be used” by executive agencies creates an entity with the power
to issue binding standards that must be followed by the Executive
Branch. See 50 U.S.C. App. § 2168(g). This interpretation apparently
accords with the relevant administrative practice, and is consistent with
the facts of this case. However, it can be argued that the CASB is
really a Legislative Branch entity, and that its action in promulgating
cost accounting standards is appropriate to such an entity since it is, in
the final analysis, advisory with respect to executive agencies. This
approach, of course, avoids the Appointments Clause question.
   The view that the CASB is a Legislative Branch entity rests on the
statute establishing it as “an agent of the Congress,” which is to be
“independent of the executive departments. . . . ” 50 U.S.C. App.
§ 2168(a). The description of the CASB as an “agent of the Congress”
recurs in the legislative history, see S. Rep. No. 91-890, reprinted 1970
U.S. Code Cong. & Admin. News 3768, 3772. Congress cannot constitu­
tionally delegate to a Legislative Branch entity the authority to impose
binding substantive regulations on the Executive Branch, for that
would violate basic separation of powers principles, as this Department
has often noted in the context of so-called “legislative veto” devices.
See, e.g.. Letter from Assistant Attorney General Parker to Chairman
Ribicoff on S. 1945, April 21, 1980; opinion of the Attorney General to
the Secretary of Education, June 5, 1980.*
   On the other hand, a Legislative Branch entity can take action in aid
of the legislative functions of Congress, such as gathering information
or investigating executive agencies. See Buckley v. Valeo, supra, 424
U.S. at 137-38. It could be argued here that, insofar as the cost ac­
counting standards are advisory, their promulgation is justified as in aid
of Congress’ oversight of government contracts, for it seems clear that
Congress is served by receiving uniform information about the cost
accounting practices of government contractors. Although the statute
provides that the CASB’s standards “shall be used” by government
agencies and contractors, it could be suggested that this language does
not unequivocally purport to bind executive agencies. First, it is an
accepted canon of statutory construction that courts will seek, if at all
possible, to construe a statute to avoid a serious question of its constitu­

  • N o t e : T h e text o f the A tto rn ey G eneral's opinion o f June S, 1980, appears in this volum e at p. 21.
supra. Ed.

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 tionality.2 Second, in this case, a court might construe the direction
 that the CASB’s standards “shall be used” by executive agencies not to
 require that agencies follow such standards absolutely, but merely to
 require them to “use” the standards, which could include deciding
 whether to follow them in a given case.
    This interpretation draws support from the ordinary meaning of the
 verb “to use,” which indicates “any putting to service of a thing,
 usu[ally] for an intended or fit purpose . .      Webster’s Third New
 International Dictionary 2524 (1976), or employing a thing “for a cer­
 tain end or purpose.” First Federal Savings & Loan Ass’n v. Williams, 91
 N.E. 2d 34, 36 (C.A. Ohio 1947); See. Yandle v. Hardware Mutual Ins.
 Co., 314 F.2d 435, 437 (9th Cir. 1963). The meaning of the verb must be
ascertained with reasonable regard for the context in which it is em­
ployed. See McJimsey v. City o f Des Moines, 2 N.W. 2d 65, 68 (Iowa
 1942); In re Holmes' Estate, 289 N.W. 638, 640 (Wis. 1940). It would
stretch the ordinary meaning of “to use” to say that, standing alone, it
means that in every situation regardless of the fitness of a thing to a
given case, the thing must be employed.
    Accordingly, in the present context, it is possible to argue that the
phrase “shall be used” should be construed to permit agencies, while
being generally guided by the CASB’s cost accounting standards, not to
follow given standards when the agency considers that they would
impinge on the Executive Branch’s responsibility to execute the laws
and thus would not be “fit” for a particular case. In particular, in
putting the CASB’s standards into service “for a fit purpose,” an
agency might choose not to follow a standard if it infringes on the
agency’s responsibility of negotiating or administering public contracts.
    This reading of the statutory language would appear to be consistent
with the Department’s view of it when it was in the form of an
enrolled bill. In a memorandum to the Director of the Office of Man­
agement and Budget, the Deputy Attorney General suggested that the
creation of the CASB apart from the Executive Branch might be
justified on the ground that the Legislative Branch, in performing its
normal oversight functions, may reasonably expect, and certainly would
be assisted by, consistency and uniformity in the information it receives
about public contracts, such as would be fostered by adherence to cost
accounting standards. Viewing the statutory language on its face, the
Deputy Attorney General was unable to conclude that it would inevita­
bly lead to conflicts of constitutional proportion between the CASB
and the Executive Branch, for that “. . . would depend on the sub­
stance of the standards and regulations adopted by the Board.” Al­

   2 See, e.g.. United States v. Rumeley, 345 U.S. 41, 45 (1953); Crowell v. Benson, 285 U.S. 22, 62
(1932); Missouri Pacific R.R. Co. v, Boone, 270 U.S. 466, 471-72 (1926); United States v. Delaware &
Hudson Co., 213 U.S. 366, 407-08 (1909); see also Ashwander v. TV A, 297 U.S. 288, 348 (1936)
(Brandeis, J., concurring).

                                              699
though the Deputy Attorney General feared that, as applied, the statute
might eventually generate disputes between the Congress, with its inter­
est in receiving information about public contracts, and the Executive
Branch, with its interest in managing the negotiation and administration
of public contracts, the Deputy’s memorandum apparently took for
granted that the statute could be given a facially constitutional reading.
   In sum, we are in substantial agreement with the analysis of your
memorandum. But we offer for your consideration the further argu­
ment outlined above which, if accepted by the court, could prevent the
statute from being held to be unconstitutional.

                                           L eon U lm an
                                 Deputy Assistant Attorney General
                                     Office o f Legal Counsel




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