 Government Printing Office Involvement in Executive Branch
                          Printing
The Office o f Legal Counsel continues to adhere to the analysis and conclusions in its opinion dated
   May 31, 1996, regarding Government Printing Office involvement in executive branch printing.

                                                                                           Ju ly 23, 1996


                         L e t t e r O p in io n f o r t h e G e n e r a l C o u n s e l
                                  G o v e r n m e n t P r in t in g O f f ic e


   This letter responds to your request for reconsideration o f the opinion issued
by this office on May 31, 1996 regarding Government Printing Office (“ GPO” )
involvement in executive branch printing. See Involvement o f the Government
Printing Office in Executive Branch Printing and Duplicating, 20 Op. O.L.C. 214
(1996) (the “ May 31, 1996 memorandum” ). In that opinion, we concluded that,
to the extent 44 U.S.C. §501 & note require all executive branch printing and
duplicating to be procured by or through the GPO, the statute violates constitu­
tional principles of separation of powers. We further found that the provision in
subsection (2) of 44 U.S.C. §501 note authorizing the Public Printer to certify
exceptions to the general rule of printing by or through the GPO is unconstitu­
tional. In preparing the memorandum, we gave the issues our complete consider­
ation. We continue to adhere to the analysis and conclusions set forth in that
memorandum.
   Specifically, you contend the May 31, 1996 memorandum represents an unwar­
ranted departure from the principle previously embraced by this office, as set forth
in a footnote of an opinion issued on September 13, 1993. See General Services
Adm inistration Printing Operations, 17 Op. O.L.C. 54 (1993) (the “ September
13, 1993 memorandum” ). W e note, as an initial matter, that the September 13,
1993 memorandum focused on whether the Joint Committee on Printing (“ JCP” )
has the authority to restrict printing functions of the General Services Administra­
tion (“ G SA ” ), and whether then-recent legislation had any effect on GSA’s au­
thority to engage in printing. The issue central to the May 31, 1996 memo­
randum — the constitutionality of Congress’s mandate that the executive branch
use the GPO for all its printing and duplicating w ork— was addressed only in
passing in a footnote of the September 13, 1993 memorandum.
   Under separation of powers doctrine, Congress may not vest executive functions
in a person or entity subject to congressional control. See, e.g.. Metropolitan
Washington A irports Auth. v. Citizens fo r the Abatement o f Aircraft Noise, Inc.,
501 U.S. 252 (1991); Bowsher v. Synar, 478 U.S. 714 (1986). This principle was
further clarified subsequent to issuance of the September 13, 1993 memorandum
in F ederal Election Comm’n v. NRA Political Victory Fund, 6 F.3d 821, 827 (D.C.
Cir. 1993) (striking down the ex officio, non-voting participation by congressional

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agents in the Federal Election Commission on grounds that the “ mere presence
of agents of Congress on an entity with executive powers offends the Constitu­
tion” ), cert, dismissed, 513 U.S. 88 (1994). As we concluded in the May 31,
 1996 memorandum, the GPO is subject to congressional control through the JCP.
   Your letter identifies as constitutionally significant (1) the fact that the Public
Printer is appointed, and subject to removal at will, by the President; and (2)
the absence of JCP veto authority over GPO actions. The President’s appointment
and removal authority demonstrates only that the executive branch also exercises
a degree of control over the GPO and Public Printer. This fact does not ameliorate
the constitutional problem that occurs as a result of the congressional control that
is exerted over the same entity and official. Similarly, the absence o f JCP veto
authority in no way diminishes the control Congress exercises through other statu­
tory mechanisms.
   You further contend that, because the GPO cannot refuse executive branch print­
ing orders nor modify the contents of any printed material, congressional control
over its functions does not violate separation of powers principles. As set forth
in detail in the May 31, 1996 memorandum, we disagree that the G PO ’s functions
are so limited in nature that congressional control over such functions holds no
constitutional significance. Indeed, as we noted in the May 31, 1996 memo­
randum, we doubt that the Constitution permits Congress to control functions out­
side the legislative sphere even where such aggrandizement is de minimis. But
we need not resolve that issue at this time because the GPO functions cannot
be characterized as merely ministerial. The GPO controls the timing and produc­
tion of all printing work for the executive branch. See 44 U.S.C. §501 & note.
The Public Printer also determines “ the form and style in which the printing or
binding ordered by a department is executed, and the material and the size of
type used.” 44 U.S.C. § 1105. Thus, the GPO’s functions are essential to the dis­
charge of all executive functions that require printing work.
   Accordingly, to the extent footnote 2 of the September 13, 1993 memorandum
is at variance with current jurisprudence and the analysis and conclusions set forth
in the May 31, 1996 memorandum, it no longer represents the views o f this office.

                                                     CHRISTOPHER SCHROEDER
                                                    Acting Assistant A ttorney General
                                                         Office o f Legal Counsel




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