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 tomorrow.

Comments

[Martinned]

I suspect we're suddenly going to find that the Comptroller-General can't sue the president either. Whether that counts as a storm is a different matter, of course.

[Drewski]

"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."

It's weird, because when I look at the decision, the holding explicitly says that Congress exclusively has the ability to remove the Comptroller General and he is a member of the legislative branch. They found he couldn't be assigned executive powers because he isn't an executive officer.

"There is no merit to the contention that the Comptroller General performs his duties independently and is not subservient to Congress. Although nominated by the President and confirmed by the Senate, the Comptroller General is removable only at the initiative of Congress. Under controlling statutes, he may be removed not only by impeachment but also by joint resolution of Congress "at any time" for specified causes, including "inefficiency," "neglect of duty," and "malfeasance." The quoted terms, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will. Moreover, the political realities do not reveal that the Comptroller General is free from Congress' influence. He heads the General Accounting Office, which, under pertinent statutes, is "an instrumentality of the United States Government independent of the executive departments," and Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. Thus, because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers."

I'm guessing Josh is drunk-posting again.

[Stephen Lathrop]

Drewski — Exactly. But also, this is gobbledygook from Burger:

Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law.

That somehow disrupts not only the Necessary and Proper Clause, but separation of powers itself. Let that control governance and governance becomes an enervating entanglement among all 3 branches, including Burger's own. Enervation of government by confusion is a goal sometimes sought in politics, but never intended by American constitutionalism.

Or, more simply, no. The power to say whether legitimate government powers have been vindicated must at all times remain with whatever entity of governance legitimately exercises each power. It is not for the Supreme Court to say whether a declaration of war by Congress is effectual. It is not for the Congress to say whether the Executive's command to the armed forces has been carried out. It is not for the Executive to say what means the Necessary and Proper clause enables Congress to enact, so long as they are proper to achieve Constitutionally legitimate ends.

It is not for any of the 3 branches of government to say whether their own oaths of office have been satisfied by their conduct. That last ought to be reserved to the jointly sovereign People themselves.

[Brett Bellmore]

So, worst case, we might find that Presidents go back to being able to impound funds, just as they did from Washington until Nixon? Wow, that would be anti-unprecedented!

[Drewski]

Can you give an example of George Washington impounding funds? I think you're lying.

[Brett Bellmore]

The History of Impoundments Before the Impoundment Control Act of 1974

"Moreover, the Washington Administration consistently failed to expend the full amount of appropriations. This was openly reported to Congress by Hamilton, who often provided them with detailed accountings of unexpended appropriations.30 Congress responded by creating a surplus fund for unexpended appropriations. Under the terms of the surplus law of 1795, unexpended appropriations would revert to the Treasury after two years.31 Moreover, it was well known that the Executive underspent tens of thousands on hospital department appropriations.32 Congress’s response was not to demand the Executive spend the entire sum, but to reduce the appropriation in future years.33 Jeffersonians did not object to the unexpended funds of the Washington Administration. Instead, they sought to control the future use of surplus funds through legislation.34 The practice of not expending the entire extent of an appropriation was never questioned, and indeed acknowledged by the surplus law."

Even in declaring the Presidential impoundment power a myth,

The Myth of Presidential Impoundment Power

The anti-Trump "Protect Democracy" site documents that Washington impounded funds on a regular basis. Page A3, 40.

"In 1796, Congress appropriated $30,000 “[f]or the [military’s] hospital department.”9 Gales writes that in a congressional debate, Representative Albert Gallatin, stated that “this year,” the hospital department “had cost six thousand nine hundred and five dollars.”10 If true, it would mean the Washington administration did not spend $23,095 of the $30,000 appropriation on hospitals. But Gallatin (as summarized by Gales) did not allege that the money was withheld; he alleged that the military “appl[ied] the surplus to other purposes.” "

I think it would be fair to say that it was uncontroversial that Presidents did NOT have to spend all the money Congress appropriated. It was very controversial indeed if they then went on to spend that money on something Congress had NOT appropriated any funds for.

[Sarcastr0]

Your baseline claim was that the US had operated like this in the past without issue.

That's wrong. The US has never had a President unilaterally take legally signed into law appropriated funds from stuff he doesn't like.

That's what you're advocating for.

It's something the Founders were explicitly concerned about, and set up a system designed around avoiding.

[Brett Bellmore]

You're simply in denial, in the face of evidence. It was actually routine up until Nixon.

The Founders were explicitly concerned about Presidents spending money that Congress HADN'T appropriated. The exact opposite of impoundment.

[Sarcastr0]

No, Presidents did not make policy via impoundment before this.

And no, in a time before monetary policy the Founders were not solely worried about inappropriate spending. Where do you get that from? It sure isn’t the text of the Constitution!

[Brett Bellmore]

"And no, in a time before monetary policy the Founders were not solely worried about inappropriate spending. Where do you get that from? It sure isn’t the text of the Constitution!"

Article 1, section 9, clause 7: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;"

Got any more brilliantly ahistorical claims you'd like to make?

[Armchair]

Sigh...

https://en.wikipedia.org/wiki/Impoundment_of_appropriated_funds

Or...

"It is possible to find common ground between both sides. The Jeffersonian policies of itemization, no transfers, and no deficiencies all shared the goal of ensuring the President spent equal to or less than an appropriation. The purpose of each Jeffersonian doctrine was to keep the President from spending more than was appropriated for each item and from circumventing this rule by transferring funds from one item to another. For the Federalists, lump sum appropriation, inherent transfer authority, and authority to create deficiencies all shared the goal of maximizing Executive discretion to expend funds flexibly in a manner calculated to meet unforeseen contingencies and support the national interest.

The common ground between the two positions was that Congress cannot and should not require the President to spend the entire amount of an appropriation. Rather, for Jeffersonians, appropriations reflected specific sums that the President could not exceed for the achievement of specific objects; and for Federalists, appropriations reflected lump sums that the President could expend as he saw fit and create deficiencies if the national interest demanded"

FDR used impoundment a lot.

President Roosevelt engaged in widespread and much-publicized impoundments in the Great Depression and World War II. Throughout the 1930s, President Roosevelt impounded appropriated funds for various programs, citing economic emergency.90 As the prospect of entering the war increased, so did FDR’s impoundments. In 1938, FDR’s administration impounded funding for ROTC units.91 In the early 1940s, the administration “ordered impoundment of amounts ranging from $1.6 million to $95 million which had been appropriated for the Civilian Conservation Corps’ surplus labor force, civilian pilot training projects, the Surplus Marketing Corporation and various civil and military efforts.”92 In 1941, President Roosevelt deferred construction projects

[jb]

There's a meaningful difference between spending money on the thing Congress allocated for, but perhaps accomplishing Congress's goals more efficiently, and just refusing to do the thing that Congress allocated the money for.

It also depends on the goal. If Congress says "build enough hospitals to take care of the veterans" and you can do that while only spending a quarter of the money they allocated, that's probably good Presidenting. On the other hand, if they say "give every veteran $1000" and you decide that they only need $500, at that point you're just ignoring the explicit direction of Congress's spending power. Washington was doing the former; Trump is doing the latter.

[Brett Bellmore]

There is such a meaningful difference, and the former is more defensible, (In light of the "take care" duty.) and I agree that Washington was very much in the former camp.

But Trump is scarcely unusual in being in the latter camp.

And, like I said, if we weren't barreling straight towards fiscal ruin like a runaway freight train, I might be able to care if a President decides not to spend appropriated money.

[Drewski]

False. Washington collected a surplus, and underspent only when authorized clearly by Congress.

https://founders.archives.gov/documents/Hamilton/01-18-02-0052-0002

Even your own source agrees with me: "This is also reflected by the language used by the first Congresses to appropriate. Whether Federalists or Jeffersonians controlled Congress, appropriations were made with similar language, indicating a ceiling rather than a floor."

The language of the early congresses did not, in fact, amend the Constitution, binding all future congresses.

[ReaderY]

Hi Brett,

Consider two cases. In both, Congress appropriates money to build a bridge within five years.

Case 1. The design work takes way to long, and after five years construction work has hardly started and most of the money is still unspent.

Case 2. The President announces “only an idiot would want to buid a bridge here. We aren’t going to spend a dime on it.”

You don’t see a difference between the two cases. But the law sees one. The first case is legal. Delays happen all the time in government. But the second case is not legal.

[David Nieporent]

The first case is legal if done in good faith. If the delays were caused by deliberate foot dragging, then it collapses into the second case.

[Sarcastr0]

"Historically, most impoundments were noncontroversial, primarily undertaken to manage expenditures or effect savings. In the 1970s, however, President Richard Nixon asserted the authority to act on his own to withhold funds or curtail programs he opposed."
https://www.congress.gov/crs-product/R48432

Brett is lying. Impoundment was previously administrative, not used to create policy or ignore Congress.

Nixon tried to use it for politics, Congress said no.

Just more of MAGA wanting a king.

[Brett Bellmore]

Your usual practice of 'reading into' what I wrote something I decidedly did NOT write. I said that impoundment had been routinely done by Presidents from Washington to Nixon. I said absolutely nothing about to what end they had done it.

I stand by the statement I actually made: Presidents from Washington up to Nixon routinely impounded appropriated funds.

"Impoundment was previously administrative, not used to create policy or ignore Congress."

From my second link above, Page A17 (54):

"During World War II, Roosevelt took a different approach, using the apportionment process not merely to find savings but to block an array of enacted projects, such as those listed above. This pattern drew considerable criticism from congressional appropriators, who demanded to know the legal basis for the Bureau’s impoundments.105 “Now, where is the law,” Senator John Overton asked in a 1943 hearing, “that authorizes either the Executive
or the Bureau of the Budget to impound funds that have been appropriated by Congress?”"

Once again, Sarcastr0, you demonstrate just how shallow your grasp of US history really is. But it's a very confident shallowness, I'll give you that.

[Sarcastr0]

You're taking something that was administrative (and is now part of standard reprogramming authority) and pretending it's the same thing Trump's doing. Not even FDR did policy via impoundment.

What you're defending and pretending is normal is not Trump doing anything administrative. This is policy. He is fully ignoring appropriation law, and functionally ignoring authorization language as well.
Despite your attempt to pretend otherwise, that's not how the President has ever used their authority in our Republic. It's more king shit.

You love that manbaby more than the Republic.

[Brett Bellmore]

Look, anyone who had more than your shallow acquaintance with US history would be VERY hesitant to say that any abuse by Trump was novel, Presidents have pulled so much shady stuff over the course of a couple centuries.

And if it was abusive and within the power of a President to do it, you should probably not bet on FDR having not done it...

But then, you're the same guy who thought it was unprecedented for the Senate to not vote on Garland, aren't you? Hardly the day goes by when you don't demonstrate your ignorance of our history.

[Brett Bellmore]

And I would never say that Trump isn't committing abuses. He is, on a daily basis. Sometimes the abuses are even something Democrats think are abuses!

But with the federal debt exceeding 1 year of our GDP, and Congress not even knowing what the words "spending discipline" mean, a President refusing to spend appropriated funds is about the very last abuse I'm going to freak out over. And I mean that sincerely.

[Brett Bellmore]

Federal Debt: Total Public Debt as Percent of Gross Domestic Product

From 1966 to 1985, the debt was under 40% of GDP.

From 1990 to about 2008, it had stabilized at approximately 60% of GDP.

From 2012-2020? About 100% of GDP.

Since 2020? 120% of GDP.

Notice that the steps are coming closer and closer together?

Impounding funds is the absolute, categorical last Presidential abuse I'd be concerned about. Oh, dear! The President is marginally slowing our rush towards total insolvency! How horrible!

[David Nieporent]

That's not the president's job.

[Brett Bellmore]

It is not, but if he's doing it anyway, it's way down my list of things to give a shit about.

[Sarcastr0]

Presidents have pulled so much shady stuff over the course of a couple centuries.

Ah yes the refuge in nihilistic cynicism when your bullshit formalism fails.

You being very mad at FDR does not absolve you of supporting Trump when he's doing something you know is abuse of process.

Garland
Caring only about the President, not the candidate, was new.

And you didn't care then either. Not sure why you think pointing our you've been a fan of abuse of process for a long time gets you.

Systems run on process. You don't like the process, you don't like the system.

Go elsewhere if you want a king and stop shitting up US politics.

[Brett Bellmore]

Nihilistic cynicism beats gross ignorance any day, Sarcastr0. You can't appropriately respond to reality if you won't confront it, and reality is pretty ugly at times.

"Caring only about the President, not the candidate, was new."

Total unadulterated bullshit, and proven to you repeatedly at the time.

[LexAquilia]

Years and years of this schtick by Sarcastr0, yet you still respond to him as if he's a serious person and not some shitty, smooth-brained reactionary fanatic.

[Mr. Bumble]

...in others word a douche.

[Stupid Government Tricks]

If you don't respond to the idiots spouting nonsense which sounds plausible on the surface, the newbies and fence sitters think it is factual and non-controversial. The point of responding to idiots like Sarcastr0 is to make sure casual readers see it contested.

[Armchair]

President Truman continued to make high profile impoundments. After World War II, he temporarily impounded funds from a program to build veterans’ hospitals, reasoning that it “would be better to wait until the returning servicemen had settled, and in that way achieve the most effective placement of medical facilities.”99 In 1946, he temporarily impounded funds appropriated to develop water resources as part of the Kings River Project in order to study the prospective costs of the project.100 In 1946 and 1947, he impounded half of the National Guard’s appropriation.101

[jb]

"temporarily" seems like an important adverb here.

[Bob from Ohio]

"most impoundments were noncontroversial, primarily undertaken to manage expenditures or effect savings

What does the word "most" mean to you?

[Martinned]

Straight from the populist playbook: Pretend that everything that used to be legal also used to be permitted and done.

For decades and centuries we didn't need laws about lots of things, because our politicians cared about the difference between right and wrong, and didn't operate with a short-run focus on their own power and profit.

For example, it's not like impoundment used to be OK. After some initial quarrels about what was and wasn't impoundment (as discussed in the para quoted by Brett), impoundment was so much not OK that, until Nixon, the US didn't really need a law against it.

[Brett Bellmore]

"because our politicians cared about the difference between right and wrong,"

LOL! Do quit your day job, you've got a promising career in comedy.

Impoundment was so OK, that it was routinely accepted until Congress got insistent that, damn it, if they appropriated pork, the pork WOULD be distributed! That Presidents would NOT be allowed to get in the way of our headlong rush towards fiscal ruin.

[apedad]

Yeah, gotta agree with BB on Martinned's comment about politicians caring.

There has always been (and always will be) caring politicians and uncaring politicians.

What BB (always) forgets though is they (politicians) are us.

[Martinned]

...and that's another classic from the populist playbook: Act like all politicians are as unethical as they are.

[Brett Bellmore]

No, all politicians aren't unethical. An awful lot of them are, and they tend to get worse as you go up the food chain, but not all of them.

I'd never claim that Trump, for instance, is an ethical President. I just argue that he's not unprecedentedly bad, though he probably does belong in the bottom 10.

[Bob from Ohio]

"all politicians aren't unethical. "

You need to show your work on that assertion.

[Brett Bellmore]

"Rand Paul"

[Bob from Ohio]

Late disclosure of stock trades: In August 2021, the Campaign Legal Center filed a complaint with the Senate Ethics Committee regarding Paul's late disclosure of stock purchases made by his wife in February 2020. The purchase, valued at between $1,001 and $15,000, was in Gilead Sciences, the company that developed the COVID-19 treatment remdesivir. Critics pointed out that Paul's delayed disclosure, which was 16 months late, prevented timely public scrutiny and created the appearance of a conflict of interest at a critical point in the pandemic.
Use of PAC funds for lavish travel: Reports from watchdog groups Issue One and Campaign Legal Center in 2018 and 2021 criticized Paul's leadership PAC, RAND PAC, for using donor money for expensive travel and meals rather than on supporting other Republican candidates. In 2018, RAND PAC spent thousands on restaurants, limousines, and hotels in Europe while spending only 7% of its funds on fellow Republicans. A 2021 report found a similar pattern of high spending on travel to resorts and luxury accommodations.

Past campaign finance issues: In 2021, the Federal Election Commission (FEC) fined Paul's 2016 presidential campaign committee $21,000 for mishandling contributions. The fine was for failing to refund or redesignate $165,749 in contributions within 60 days of Paul dropping out of the race.

Plagiarism allegations: In 2013, Paul faced accusations of plagiarism for lifting passages for speeches and a column without proper attribution. While he maintained it was a failure of his staff, his response drew criticism.

[David Nieporent]

That Presidents would NOT be allowed to get in the way of our headlong rush towards fiscal ruin.

Correct. Other than through the veto, fiscal policy is outside his area of authority.

[Brett Bellmore]

If you tell me the guy wresting the steering wheel from the person driving towards a cliff isn't the driver and isn't entitled to steer the car, I'll agree, AND I'll not give a damn, because the guy who is entitled to is still driving it towards a cliff.

[Bob from Ohio]

"The comptroller general is appointed for fifteen years by the president of the United States with the advice and consent of the Senate per 31 U.S.C. § 703"

So the president appoints a legislative branch official? And the House has no role? Um.

Either that provision is unconstitutional or the CG is an executive officer.

[OpinionsVary]

Why? The US constitution has no problem with the president appointing officers of other branches. Judges are the most notable example but hardly the only one.

[Bob from Ohio]

Judge appointments are specifically granted to the President. Contra your statement, its the only cross branch appointment power given to the President.

Congress can empower judges to appoint lower executive branch people.

What provision of the Constitution allows president to appoint legislative branch officials? Article I grants each house the power to elect "other Officers".

[OpinionsVary]

Not quite. Each House is granted to the right to appoint *their* other officers, their as in that specific House's. It is silent on officers that sits not as part of either house but serves the Legislative branch as a whole. Presumably Congress can either appoint directly or assign that power to the President if they decide that's more proper for a given official, whatever they decide via law. For example, the Architect of the Capitol (another Legislative branch officer) used to be appointed via the President with Senate advice and consent. Now they are appointed by commission of the Senate and House with no say for the President. Both ways are final and it's just up to Congress to choose which to use.

[OpinionsVary]

*Both ways are *fine* and it's just up to Congress to choose which to use.

Sorry

[Bob from Ohio]

So, no language in the Constitution.

"now they are appointed by commission of the Senate and House with no say for the President."

They corrected the constitutional problem then.

[SRG2]

From your argument it would appear that all Congressional officers who are not actual legislators are part of the Executive.

BTW I assume you'd regard Article II - immigration - courts as unconstitutional.as violating separation of powers. Or is that different somehow?

[Bob from Ohio]

"all Congressional officers who are not actual legislators are part of the Executive."

No idea how you reach that conclusion. No, if they are appointed by one or both houses they are legislative officers. Nothing in Article I says they have to be members of a house, that is why people say the Speaker can be a non-member.

"immigration - courts "

They are not "courts" despite the name, just an internal layer of appeal. They are executive branch employees.

Congress could create Article III courts to replace them.

[SRG2]

They are not "courts" despite the name, just an internal layer of appeal.

Sounds judicial to me

[John F. Carr]

If we ever get to do the constitution over, many recent legal disputes should be addressed more specifically. Can a single branch of Congress sue to enforce the law? Should there be a legislative veto? What sort of executive functions can be immune from presidential supervision? If Congress doesn't pass a budget, should the penalty be permanent loss of office or something more medieval? There are lots of improvements that could be made. Realistically, members of the constitutional convention will spend their time arguing over whether transgender fetuses can have guns.

[Brett Bellmore]

At the time the Constitution was written, there was very much a fad for writing as concisely as possible. I think they took it too far, and that the Constitution would have benefited greatly from "partaking of the prolixity of a legal code" a bit more.

[SRG2]

FWIW, when Britain passed the 1968 Theft Act, the idea was to make the legislation brief and readily understandable. As a consequence, there were far more appeals and judicial interpretations than with "regular" legislation.

[David Nieporent]

If Congress doesn't pass a budget, should the penalty be permanent loss of office or something more medieval?

I know this is hyperbole and a thought experiment anyway, but to be clear — because this confuses lots of people — there is no constitutional requirement for Congress to "pass a budget" at all. Congress has to pass tax laws to raise funds, and has to pass appropriations bills to spend funds. It might be a good idea, but there is no obligation to enact an overarching plan.

(Countries aren't households, but the analogy is okay here: my wife and I each bring in a certain amount of income each year, and we buy stuff throughout the year. We do not sit down at the beginning of the year and draw up a spreadsheet as to how much we expect to bring in and how much we are going to spend on each category or item. Maybe it would be a good idea, but we don't have to and we don't do so.)

[Keldonric]

So at the end of the day, where should the actual power to make policy rest?

[thesafesurfer]

After reading Geoff Shepard, every single decision involving Nixon should come under strict scrutiny.

[Henry Wray]

The analysis in this post is flawed but the bottom-line conclusion is probably correct. The Comptroller General is unquestionably a legislative branch officer. That was the essential holding in Bowsher v. Synar. Contrary to the post, the Court did not rule in Bowsher that Congress could not play a role in the Comptroller’s removal. Quite the opposite, the Court relied on Congress’s power to remove the Comptroller as one major factor supporting its conclusion that he was a legislative branch officer who could not perform executive functions. It’s been universally accepted ever since Bowsher that the Comptroller General and the agency he heads, GAO, are part of the legislative branch. Indeed, there’s now a move to repeal the incongruous and anachronistic provision for presidential appointment of the Comptroller and make him a congressional appointee instead.

Josh is probably right that an impoundment suit by the Comptroller General would be held nonjusticiable, but that would likely be on the grounds that the Comptroller as a legislative branch officer has no constitutional ability to bring such a suit.

This result would be just fine with Russell Vought since his ultimate goal is to prevent ANY party from suing to challenge impoundments. Vought and OMB are already hard at work attempting to hamstring the Comptroller’s efforts to carry out his functions under the Impoundment Control Act—refusing to cooperate with GAO investigations, promoting drastic cuts to GAO’s budget, and seeking to impose additional statutory constraints on the Comptroller’s ability to sue.