The Coming Storm Over the Comptroller General

If the Comptroller General is an Executive Branch Officer, he could be removed at will, and his suit against the President would not be justiciable.

Department of State v. AIDS Vaccine Advocacy Coalition strongly suggested that private litigants cannot bring suit under the APA to enforce the Impoundment Control Act. If that (interim) ruling is correct, how can the Impoundment Control Act be enforced?

Justice Kagan, in dissent, explained that the Comptroller General can enforce the law through a lawsuit:

Second, the Act gives the Comptroller General (a legislative officer) a way to sue over presidential impoundments. If he believes the President is unlawfully withholding funds, he is to send a report to Congress saying so. See § 686. And after a specified time, he may bring a civil action under the Act to compel the Executive to obligate the funds at issue. See § 687. According to the Executive's application for a stay, that statutory scheme "impliedly preclude[s]" the plaintiff organizations from bringing an APA suit to similarly enforce appropriations laws. Application 18. That suit, the Executive argues, would "supplant[ ] interbranch negotiations" and "leapfrog[ ] the Comptroller General" if allowed to go forward. Id., at 20

There is a lot to unpack here. As a threshold matter, Kagan stresses that the Comptroller General is a "legislative officer." No matter how hard Justice Kagan tries, she can never get away from more "officer stuff."

The Supreme Court, per Chief Justice Burger, discussed the status of the Comptroller General in Bowsher v. Synar (1986). This decision, which was decided on Burger's last day on the bench, ruled that Congress could not play a role in the Comptroller General's removal. Here is a snippet of the decision:

Appellants suggest that the duties assigned to the Comptroller General in the Act are essentially ministerial and mechanical, so that their performance does not constitute "execution of the law" in a meaningful sense. On the contrary, we view these functions as plainly entailing execution of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law.

Kagan briefly asserting that the Comptroller General is a "legislative officer" doesn't do much work. Exactly in what regard the Comptroller General is a "legislative officer" is a question that has lingered for nearly four decades. There is an argument that the Comptroller General exercises executive powers, and accordingly, would be viewed as an executive officer. And if Slaughter goes the way we all think it will go, the President might be able to remove the Comptroller General at will.

More importantly, if the Comptroller General is a member of the executive branch, there will be a justiciability question of whether the CG could sue the President. Wouldn't this simply be an intrabranch dispute that does not belong in Court? United States v. Nixon held that the Special Prosecutor could issue the subpoena to President Nixon because there was a binding regulation in effect that allowed him to do so. This was an application of the so-called Accardi principle.

Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority. But he has not done so. [Footnote 10] So long as this regulation remains in force, the Executive Branch is bound by it, and indeed the United States, as the sovereign composed of the three branches, is bound to respect and to enforce it. Moreover, the delegation of authority to the Special Prosecutor in this case is not an ordinary delegation by the Attorney General to a subordinate officer: with the authorization of the President, the Acting Attorney General provided in the regulation that the Special Prosecutor was not to be removed without the "consensus" of eight designated leaders of Congress. N 8, supra.

The emphasized portion is extremely problematic. Under Bowsher, which was decided a decade after Nixon, members of Congress cannot play any role in the removal of executive officers. We raised this argument in the Special Counsel litigation before the Eleventh Circuit, and earlier before Judge Cannon:

Further, in 1973, the Acting Attorney General, with the acquiescence of the President, granted the Special Prosecutor unsurpassed insulation against removal. Apart from those compromises, this insulation would be inconsistent with Bowsher v. Synar. 478 U.S. 714 (1986). Whether the Nixon analysis is holding or dicta, it is not controlling, and it should not be extended to today's context under today's statutory and regulatory framework.

The Impoundment Control Act expressly authorizes the Comptroller General to bring suit against the President. But is that statute even constitutional, if the CG exercises executive power? Under Spokeo and related cases, Congress cannot create an injury in fact or justiciable controversy merely by passing statute. Still,  I remain convinced the justiciability holding of United States v. Nixon is wrong, especially in light of the fact that Bowsher abrogated a core component of Nixon. I've called on that venerable precedent to be reconsidered. At some point, I'll write the article titled The Irrepressible Myth of United States v. Nixon.

To be clear, the Solicitor General has not conceded that the Comptroller General could actually bring this suit. The emergency application states:

The Executive Branch has long raised concerns about the lawfulness of limits on impoundment. See, e.g., Stanton, supra, 6-7. The Office of Legal Counsel has previously reasoned that, should Congress direct spending so as to "interfere with the President's authority in an area confided by the Constitution to his substantive direction and control, such as his authority as Commander in Chief of the Armed Forces and his authority over foreign affairs," that direction may violate Article II. Memo-randum from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools, 1 Supp. Op. O.L.C. 303, 310-311 (Dec. 1, 1969). See App., infra, 35a n. 16. Those contentions, however, are not at issue in this application. Nor does this case raise any issue about whether suits by the Comptroller General against the Executive Branch are cognizable under Article III.

Again, I do not think this conflict would be justiciable, but the Court would have to take another look at United States v. Nixon.

If the Comptroller General cannot bring suit against the President, what role does he play? He could notify Congress that there was a potentially illegal impoundment. Congress could then choose to bring an impeachment proceeding. What is the impeachable offense? We've been there before. In 2020, Trump was impeached for "abuse of power" for (allegedly) withholding funding to Ukraine. I think the government would say that if there was actual illegal impoundment, there could be an impeachable offense. This conflict should be resolved in the political process, rather than in the courts.

Finally, I would point to a profile in the New York Times about White House Budget Director Russ Vought. He seems to be gunning to have the ICA's enforcement provision declared unconstitutional.

During Mr. Trump's first term, Mr. Vought argued that the president had the power to block federal spending Congress had approved. He was part of a group of White House officials who froze military spending for Ukraine in defiance of Congress, paving a path to the president's impeachment.

To that end, Mr. Vought is laying the groundwork for a legal battle over the Impoundment Control Act of 1974, enacted by Congress in the wake of President Richard Nixon's moves to block agency spending he opposed.

Mr. Vought, who says the law is unconstitutional, would like to see it overturned.

That goal has driven him to his current "pocket rescissions" package.

Mr. Vought's friends say that his actions are designed to provoke a lawsuit from the Government Accountability Office, the congressional watchdog, which has said the pocket rescission is illegal and "would cede Congress's power of the purse."

"Russ absolutely believes he is on sound legal footing and that he will be vindicated at the Supreme Court," Mr. Grogan said.

Edda Emmanuelli Perez, the general counsel of the Government Accountability Office, disagreed, saying in an interview: "In order to not spend the money, the laws would have to be changed. And the president does not have the unilateral power to change the laws."

Rob Fairweather, who spent 42 years at the Office of Management and Budget and wrote a book about how it operates, said there is reason for Mr. Vought to have confidence in a legal victory.

"What he's doing is radical, but it's well thought out," Mr. Fairweather said. "He's had all these years to plan. He's looked clearly at the authorities and boundaries that are there, and is pushing past them on the assumption that at least some of it will hold up in the courts."

Mr. Vought is already looking forward to that outcome, declaring on Glenn Beck's show this spring: "We will have a much smaller bureaucracy as a result of it."

There is a coming storm over the Comptroller General. Get ready for more "officer stuff."

I will have more on this issue in a Civitas column that should be published in a few hours.