A balancing act

A Legal View: Federal IT policy could set up a struggle between Congress and the Bush administration

Checks and balances: a revolutionary concept more than 200 years ago that is now the framework of our constitutional government. At that time, information technology consisted of rudimentary printing presses. Today, electronic publishing could put IT at the forefront of a battle that could affect the balance of power.

The Constitution's foundation is the separation of governmental powers into three branches — legislative, executive and judicial. The checks and balances inherent in this system undoubtedly improve the quality of government. However, the balancing of powers among separate governmental branches can create certain tensions as well.

During the coming year, federal IT policy is likely to be one of the major focal points of this tension. In fact, the opening salvo in this debate already has been fired. This fall, the Bush administration put Congress on notice that it will not tolerate legislative intrusions into executive policy-making.

Bush's statement was issued Sept. 30, when he signed a continuing resolution funding government operations pending passage of fiscal 2003 appropriations bills.

Lawmakers included a provision in the continuing resolution restating existing laws purporting to mandate that executive agencies may acquire printing services, defined broadly to include all high-speed document duplication, only with approval from the Government Printing Office, a legislative branch agency. Bush, in his statement, declared that portion of the resolution unconstitutional and unenforceable.

This may seem an insignificant issue. Indeed, the debate over computer-based printing services is nearly a decade old now. To a significant extent, executive branch agencies have simply ignored the statutory directive.

Why then has this old and somewhat arcane debate returned to center stage? The answer may relate to a new initiative by the administration to centralize control over all government spending on IT resources.

In July, the Office of Management and Budget issued a tool for restricting federal IT investment decisions called the Business Reference Model. The model, which OMB plans to use for laying out the fiscal 2004 budget, seeks to coordinate IT programs along 35 separate "lines of business," to "facilitate cross-agency analysis and improvement." The primary motive behind the effort is to eliminate redundancies in IT investments among agencies in hopes of saving money, which can then be used to fund other priorities.

This sounds like a great idea. And there is a good possibility that Congress will support this new approach.

But there is also a good chance that congressional committees — which are organized with responsibilities over specific agencies — may resist OMB's centralized management. If so, the executive branch has already served notice that it will not appreciate too much legislative intrusion into executive prerogatives.

Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.

RELATED INFO

Materials discussed in this column include:

44 U.S.C. 501; U.S. Department of Justice, Office of Legal Counsel, Opinion, "Involvement of the Government Printing Office in Executive Branch Printing and Duplicating" (May 31, 1996).

U.S. Department of Justice, Office of Legal Counsel, Opinion, "Government Printing Office Involvement in Executive Branch Printing and Duplicating" (July 23, 1996).

Comptroller General Opinion No. B-251481.4 (Sept. 30, 1994).

Comptroller General Opinion No. B-251481.3 (Feb. 15, 1994); Statement by the President (Sept. 30, 2002).

U.S. GPO, Release No. 02-19, "GPO Analysis Shows OMB Printing Policy Change Would Raise Costs, Reduce Public Access" (June 28, 2002).

OMB, Release No. 2002-50, "OMB Releases New Business Reference Model to Improve Agency Management" (July 24, 2002).

See also U.S. Department of Justice, Office of Legal Counsel, The Constitutional Separation of Powers between the President and Congress (May 7, 1996).

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