               Comptroller General’s Authority to Relieve
            Disbursing and Certifying Officials From Liability


S tatu to ry p ro v isio n s purporting to au th o rize the C om ptroller G eneral, an agent o f C ongress, to
     reliev e certify in g a n d disbursing officials in the executive branch from liability for illegal or
     im p ro p e r p ay m ents are unconstitutional.


                                                                                          August 5, 1991

                 M   em orandum         O p in io n   for t h e   G   eneral       C o u n sel
                                J u s t ic e M   anagem ent       D   iv is io n



   This responds to your request for our advice about a proposal to amend
Department of Justice Order 2110.29B (Sept. 17, 1981), which prescribes
the procedures for requesting a decision of the Comptroller General pursu­
ant to 31 U.S.C. § 3529.' Decisions of the Comptroller General purportedly
may relieve certifying and disbursing officers from liability for illegal or
im proper payments. See 31 U.S.C. § 3527(b)(2) (disbursing officials); id. §
3528(b) (certifying officials). In your view, this asserted authority o f the
Com ptroller General raises a substantial separation of powers question in
light of B ow sher v. Synar, 478 U.S. 714 (1986). You therefore believe that
DOJ Order 2110.29B should be revised to instruct such accountable officers
to seek the advice o f the component’s General Counsel (or of this Office)
whenever they are unsure of the legality of paying a particular claim. We
agree with you that the statutory mechanism is unconstitutional insofar as it
purports to empower the Comptroller General to relieve executive branch
officials from liability. Accordingly, we agree that DOJ Order 2110.29B
should be revised along the lines you suggest.

                                  I. The Statutory F ram ework

   31 U.S.C. § 3529 establishes a mechanism for certain executive branch
officials to obtain the opinions o f the Comptroller General. It states that



  1 See M em orandum for W illiam P. Ban, Assistant Attorney General, Office o f Legal Counsel, from
Jam s A. Sposato, General Counsel, Justice Management Division, Re: Comptroller G eneral’s Decision
M aking A u thority over the Executive Branch (Apr. 16, 1990) (the “JM D Memo”).

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       (a) A disbursing or certifying official or the head of an agency
       may request a decision from the Comptroller General on a
       question involving —

             (1) a payment the disbursing official or head of the
            agency will make; or

             (2) a voucher presented to a certifying official for
            certification.

       (b) The Comptroller General shall issue a decision requested
       under this section.

    Section 3529 is closely connected with the two immediately preceding
sections o f title 31, which purportedly authorize the Comptroller General to
relieve disbursing and certifying officials from liability for mispayments.
Section 3527(c) states that the Comptroller General, on his own initiative or
on a written request of the head of an agency,

       may relieve a present or former disbursing official of the agency
       responsible for a deficiency in an account because of an ille­
       gal, improper, or incorrect payment, and credit the account for
       the deficiency, when the Comptroller General decides that the
       payment was not the result of bad faith or lack of reasonable
       care by the official.

  Section 3528(a) sets forth the responsibilities of certifying officials, among
which is that of

       (4) repaying a payment—

              (A) illegal, improper, or incorrect because of an
            inaccurate or misleading certificate;

             (B) prohibited by law; or

              (C) that does not represent a legal obligation under
            the appropriation or fund involved.

  Section 3528(b) declares that the Comptroller General


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          may relieve a certifying official from liability when the Comp­
          troller General decides that . . . (i) the obligation was incurred
          in good faith; (ii) no law specifically prohibited the payment;
          and (iii) the United States Government received value for [the]
          payment.

    The Comptroller General has taken the position that “where there is doubt
as to the legality of a payment, the certifying officer’s only complete protec­
tion from liability for an erroneous payment is to request and follow the
Com ptroller General’s advance decision” under this statutory procedure. 55
Comp. Gen. 297, 300 (1975). The Comptroller General has also asserted
that “in view of the certifying officer’s statutory right to request and obtain
an advance decision from the Comptroller General regarding the lawfulness
o f any payment to be certified we can see no reason for concluding that the
agency’s general counsel’s conclusions of law regarding such payment are
‘binding’ on the agency’s certifying officers.” Id. In general, the Comptrol­
ler General is of the opinion that an accountable officer “is automatically
liable at the moment of a loss or shortage. To mitigate this rule, however,
Congress has provided a mechanism for relief. If the agency requests relief
in conformity with the statutory conditions, and if [the] GAO agrees with
the administrative determinations, relief will be granted.” United States
General Accounting Office, Office of General Counsel, Principles o f Federal
Appropriations Law 10-40 (1982); 14 Comp. Gen. 578, 583 (1935).

                                          II. A nalysis

    We accept the Comptroller General’s construction of 31 U.S.C. §§ 3527,
3528, under which those statutes purport to authorize him in appropriate
cases to relieve disbursing and certifying officers from liability for improper
payments. But we believe that the statutes, so construed, are unconstitu­
tional. In our view, the Comptroller General, as the agent of Congress,
cannot issue interpretations of the law that are binding on the executive
branch. Moreover, the Comptroller General’s assertion of the power to re­
lieve executive branch officials from liability for improper payments usurps
the Executive’s prosecutorial discretion and prevents the President from ex­
ercising his inherent supervisory authority over the conduct of executive
branch officers. DOJ Order 2110.29B implements this unconstitutional statu­
tory procedure. Accordingly, it must be revised.
   In B ow sher , the Supreme Court, relying on the fact that Congress had
retained removal power as to the Comptroller General, held that that officer was
an agent of the legislative branch who “may not be entrusted with executive
powers.” 478 U.S. at 732.2 The Court further held that the responsibilities

   2 The Court has recently reaffirmed Bowsher. See Metropolitan Washington Airports Auth. v Citizens
fo r the A batem ent o f Aircraft Noise, Inc., 501 U.S. 252, 275 (1991).

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assigned to the Comptroller General under the statute at issue in that case
“plainly entail[ed] execution of the law in constitutional terms.” Id. at 732-
33. The Court explained that

          [interpreting a law enacted by Congress to implement [a]
          legislative mandate is the very essence of “execution” o f the
          law. Under § 251 [of the Balanced Budget and Emergency
          Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat.
          1038], the Comptroller General must exercise judgment con­
          cerning facts that affect the application of the Act. He must
          also interpret the provisions of the Act to determine precisely
          what budgetary calculations are required. Decisions of that
          kind are typically made by officers charged with executing a
          statute. . . . [0]nce Congress makes its choice in enacting
          legislation, its participation ends. Congress can thereafter con­
          trol the execution of its enactment only indirectly —by passing
          new legislation. [Citation omitted.] By placing the responsi­
          bility for execution of the Balanced Budget and Emergency
          Deficit Control Act in the hands of an officer who is subject
          to removal only by itself, Congress in effect has retained con­
          trol over the execution of the Act and has intruded into the
          executive function. The Constitution does not permit such
          intrusion.

Id. at 733-34.

   Similarly, when the Comptroller General reviews the decision of a dis­
bursing or certifying officer under 31 U.S.C. § 3529 in order to determine
whether that decision complies with the law, the Comptroller General is
necessarily interpreting the provisions of the underlying law. This is plainly
an executive rather than a legislative function:3 the Comptroller General is
engaging in the “execution of the law in constitutional terms,” and is taking
decisions “typically made by officers charged with executing a statute,” i.e.,
the accounting officers themselves or the agency legal counsel on whom
they rely. See Bowsher, 478 U.S. at 732-33. It follows that the Comptroller
General, as an agent of the legislative branch, cannot constitutionally per­
form this function. Moreover, the Comptroller General is asserting the
authority to bind persons in the executive branch to his construction o f the
law, even in cases in which the Attorney General or other executive branch
legal officers may have reached contrary conclusions. But Congress may
not determine the legal rights, duties and relations of persons outside the

   3 Even assum ing arguendo that the functions assigned to the Comptroller General could somehow be
characterized as "legislative” rather than “executive,” the constitutional difficulty would remain intrac­
table. “Congress may not delegate the power to legislate to its own agents.” Metropolitan Washington
A irports Auth. v. Citizens fo r the Abatement o f Aircraft Noise, Inc., 501 U.S. at 275.

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 legislative branch except by conforming to the constitutional procedures of
bicam eral passage of a bill and presentment to the President.4 A fortiori the
C om ptroller General may not m ake such legal determinations.5
    Furthermore, in purporting to authorize the Comptroller General to re­
lieve an executive branch official from liability for an improper payment,
Congress has usurped the Executive’s “exclusive authority and absolute dis­
cretion to decide whether to prosecute a case.” United States v. Nixon, 418
U.S. 683, 693 (1974). “A lawsuit is the ultimate remedy for a breach of the
law, and it is to the President, and not to the Congress, that the Constitution
entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’
Art. II, § 3.” Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam).6 If the
Com ptroller General or any other agent o f the legislative branch could re­
lieve a governmental official from liability for mispayment of public moneys,
then the executive branch would be deprived of the discretion to decide
whether to bring suit to recover the funds from that official. The result
would be an unconstitutional invasion of the Executive’s responsibility to
take care that the laws be faithfully executed.7
    Finally, under the Constitution the President has general supervisory au­
thority over the executive branch.8 This, o f course, is specifically true of
accounting officers within the Executive.9 Because the statutes here in ques­
tion would prevent the President from bringing an action to correct what in
his view was an illegal payment by an executive branch official if the


     4S ee M etropolitan Washington Airports A uth. v. Citizens f o r the Abatement o f Aircraft Noise, Inc., 501
 U.S. at 275; IN S v. Chadha, 462 U.S 919, 952 (1983).
     5 T h is conclusion accords with our repeated view that in the event of a conflict between a legal opinion
 o f the A ttorney General and that of the C om ptroller General, executive branch officers are bound to
 follow the opinion o f the Attorney General. See, e.g.. D ebt Obligations o f the National Credit Union
A dm inistration , 6 Op. O.L.C. 262,263 & n .4 (1982).
     6See also H eckler v. Chaney, 470 U.S. 821, 832 (1985) (agency's decision not to prosecute or enforce,
w hether through crim inal or civil process, is in general committed to its own absolute discretion; in
particular, decision w hether to indict “has long been regarded as the special province o f the Executive
B ranch”); Cuyahoga Valley Ry. v. United Transportation Union, 474 U.S. 3, 7 (1985) (per curiam); The
C onfiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1869); The Jewels o f the Princess o f Orange, 2 Op.
A tt’y Gen. 482, 486-92 (1831) (Taney, A .G .); I William Blackstone, Commentaries on the Law s o f
E ngland 243 (W illiam D. Lewis ed., 1897) (“though the m aking of laws is entirely the work o f . . . the
legislative branch, o f the sovereign power, yet the manner, time, and circumstances o f putting those
law s in execution m ust frequently be left to the discretion o f the executive m agistrate”).
    ’’M orrison v. Olson, 487 U.S. 654 (1988), supports this conclusion. There the Court upheld the consti­
tutionality o f the Independent Counsel, a prosecutor whose removal was “squarely in the hands o f the
E xecutive B ranch.” Id. at 686; see also id. at 692 n.31 (civil enforcement powers analogous to criminal
prosecutorial pow ers vested in agencies w hose officers are removable by the President for cause). As
explained above, the power to remove the C om ptroller General lies with Congress.
    • See M orrison u Olson, 487 U.S. at 692, 696; M yers v. U nited States, 272 U.S. 52, 135 (1926); Sierra
Club v. Costle, 657 F.2d 298, 406 (D.C. Cir. 1981); Inspector General Legislation, 1 Op. O.L.C. 16, 17
(1977).
   9S ee The Federalist No. 72 at 369 (Alexander Hamilton) (M ax Beloff ed., 1987) (“the preparatory plans
o f finance, the application and disbursement o f the public m onies, in conformity to the general appropria­
tions o f the legislature . . . these, and other m atters of a like nature, constitute what seems to be most
properly understood by the administration o f government. T he persons, therefore, to whose immediate
m anagem ent these different m atters are com m itted, ought to be considered as the assistants or deputies of
the ch ie f m agistrate [i.e., the President]; and, on this account, they o u g h t. . . to be subject to his superin­
tendence”).
Comptroller General opined that the payment was not illegal, they would
impair the President’s authority to supervise the conduct of his subordinates.
   Accordingly, we conclude that the Comptroller General cannot constitu­
tionally relieve disbursing and certifying officers from liability. Because
DOJ Order 2110.29B is based on the assumption that the Comptroller Gen­
eral has such authority, it must be rescinded.
   We agree with your suggestion that a revised DOJ Order should instruct
accountable officers to seek the advice of their components’ general coun­
sels whenever they are in doubt about the legality o f paying or certifying a
particular claim. (In cases raising significant or novel legal questions, the
component general counsels are free to seek an opinion from this Office.)
Furthermore, in the future, the Department should decline to process re­
quests from accountable officials for Comptroller General opinions purporting
to relieve them of liability; and the revised DOJ Order should advise such
officials that it will not necessarily decline to bring suit for the recovery of
funds because the Comptroller General has purported to relieve an official
of liability. In addition, the revised DOJ Order should state that this Depart­
ment will not bring suit against an official to recover a payment if that
official has obtained from his or her component general counsel (or, where
appropriate, from this Office) an opinion advising him or her that the pay­
ment could legally be made.10 Finally, we agree with your recommendation
that the revised DOJ Order should be signed by the Attorney General.

                                                               JOHN O. McGINNIS
                                                      Deputy Assistant Attorney General
                                                          Office o f Legal Counsel




   10 Under 5 U.S.C. § 5512(a), the pay o f an accountable official “in arrears to the U nited States shall be
withheld until he has accounted for and paid into the Treasury o f the United States all sums for which he
is liable.” In our view, this provision could not be applied if this Department had determ ined that the
official was not liable.

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