Constitutional turf battles

After the 2002 midterm elections, one might expect the president and Congress to begin a new era of cooperation — but not on everything. As discussed in this column last month, President Bush has placed Congress on notice that his administration may disregard any statute that it believes is unconstitutional because it intrudes onto prerogatives constitutionally reserved for the executive branch.

In a statement accompanying his signing of a continuing resolution to fund agencies pending passage of the fiscal 2003 appropriation bills, President Bush rejected a provision requiring executive agencies to purchase printing services, including all computer-based, high-speed document duplication, only with approval from the Government Printing Office, an agency of the legislative branch. This reopened an old and hotly contested debate.

In 1994, the General Accounting Office, also part of the legislative branch, issued two opinions upholding the decision by lawmakers to designate GPO to oversee such acquisitions. However, in 1996, the Justice Department issued two opinions of its own rejecting the scheme as unconstitutional and, therefore, "inoperative." Since then, the executive branch has largely ignored the statute.

Some commentators thought that President Bush's recent statement on the issue was something of a mistake and not intended to start a major fight. However, both sides have continued to turn up the heat.

On Oct. 22, Justice issued a fresh opinion reconfirming its 1996 view on the matter. Then, in a Nov. 13 Federal Register notice, the administration announced its intention to issue formal regulations disavowing the congressional provision. On the same day, however, GAO issued an opinion restating its position.

Notably, in GAO's new opinion, agency officials stated that any government official who disregarded the congressional restrictions would be violating the Antideficiency Act, a criminal statute. According to GAO, administrative officers are required to follow all congressional spending mandates unless overturned by the U.S. Supreme Court. And so the lines are drawn.

This fight is reminiscent of two cases from the mid-1980s, challenging GAO's own participation in bid protests and in the federal deficit reduction process.

In 1986, the Supreme Court struck the deficit reduction process deeming it unconstitutional.

Based on that decision, Congress agreed to narrow GAO's bid protest role, in exchange for which the administration dropped its challenge to the statute before the Supreme Court ruled in the case.

It is possible that a compromise might be reached between the administration and Congress in the present debate involving GPO. But it is looking increasingly likely that the parties would rather use the issue to further their positions in the bigger debate over the constitutional separation of powers.

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


Materials discussed in this column include:

67 Fed. Reg. 68914 (Nov. 13, 2002); GAO letter to Honorable Robert C. Byrd, B-300192 (Nov. 13, 2002); Ameron Inc. v. U.S. Senate, 787 F.2d 875 (3d Cir. 1986); Bowsher v. Synar, 478 U.S. 714 (1986).


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