APPENDIX 1 APPENDIX 1A MEMORANDUM FOR THE JOINT George B. Driesen, Esq. EXECUTIVE SUMMARY The attached Memorandum attempts to answer the question whether the Joint Committee on Printing's ("JCP") exercise of its statutory, administrative authority over government printing violates the United States Constitution. Immigration and Naturalization Service v. Chadha, 103 S. Ct. 2764 (1983) holds that Congress may not constitutionally set aside statutorily authorized action by an Executive Branch officer unless Congress complies with procedures required for enacting a law. Superficially read, the decision appears to invalidate JCP authority over printing done for Executive Branch officials. The opinion concludes, however, that the courts would probably not sustain a constitutional challenge to the JCP's authority. Congress has played a dominant role in the administration of government printing for over a hundred and thirty years. The present satisfactory arrangement evolved out of decades of futile efforts to eradicate the evils of high cost and political patronage that had infected public printing. Throughout the more than 130 years that followed, no President has even questioned the constitutionality of the arrangement. In contrast, the legislative veto had been a constant bone of contention between Congress and the President throughout its short history. History aside, it appears that the JCP's determinations under the printing statutes are not "laws", requiring plenary concurrence of both Houses and submission to the President because the printing statutes relate to relatively insubstantial internal, governmental housekeeping and support matters and do not purport to establish rights or impose obligations outside the government. Determinations under those statutes, therefore do not contain the seeds of "legislative despotism" or (partly because the JCP does not decide whether documents may be printed) prevent the President from defending himself against the Congress, the evils that presentment and bicameralism 129 prevent. For these reasons, the opinion concludes, it is probable that courts will not deem the JCP's issuance of Printing and Binding Regulations, or its exercise of power to permit an agency to have matter printed elsewhere than at GPO or to prevent the Public Printer (who heads a legislative agency) from contracting to have work done outside GPO to be "enactments" of "laws" which require plenary consideration by both Houses and presentment to the President. MEMORANDUM FOR THE JOINT COUNCIL OF GPO UNIONS ON THE CONSTITUTIONALITY OF THE JOINT COMMITTEE ON PRINTING'S STATUTORY AUTHORITY OVER PUBLIC PRINTING Sections 501 and 502 of Title 44 give the Joint Committee on Printing ("JCP") certain specified authority with respect to public printing including printing by "every executive department, independent office and establishment of the Government" 44 U.S.C. §501 (1982). Section 501 mandates that "[a]ll printing, binding, and blank book work...shall be done at the Government Printing Office." Id. The statutes authorize several exceptions to that categorical prohibition, however. First, "classes of work the Joint Committee on Printing considers to be urgent or necessary to have done elsewhere" may be done elsewhere. Id. §501 (1). Second, agencies may maintain "field printing plants" and may procure printing "from allotments for contract field printing, if approved by the Joint Committee on Printing." Id. §501 (2). Third, the Public Printer may contract "elsewhere" for "printing, binding, and blank book work" if the JCP approves. Id. §502. You have asked whether the Supreme Court's decision in Chadha, Immigration and Naturalization Service v. Chadha, 103 S. Ct. 2764 (1983) abrogates the JCP's authority over the government's printing, binding, and blank-book work. Chadha held unconstitutional statutes that delegated authority to the Attorney General to suspend an alien's imminent deportation but that also provided that either House of Congress could by resolution set aside the Attorney General's determination. The action of the House, the Court ruled, was "legislative in its character and effect." Chadha, supra, 103 S.Ct. at 2784. As such, the action could only be taken in compliance with the Constitutional mandate that legislation be passed by both Houses and approved by the President (or passed over his veto). 103 S. Ct. At 2785. See id. At 2781. Since the statute provided otherwise, it was unconstitutional. Chadha can arguably be read to invalidate the statutes delegation of authority to the JCP with respect to the flow of the government's printing. The Court's opinion states flatly that "action by the House...[that is] not within any of the express constitutional exceptions authorizing one House to act alone, and...that...[is] an exercise of legislative power...[is] subject to the standards prescribed in Article I." (i.e. bicameralism and presentment). 103 S. Ct. at 2787. Furthermore, the Chadha opinion asserted that the House decision to revoke the Attorney General's suspension order "was essentially legislative in purpose and effect" because that action "had the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch." 103 S. Ct. at 2784. It can be argued that if the JCP authorizes an executive agency to have its printing done outside GPO, the JCP has "altered the legal rights" of agency officials outside the Executive Branch.2 The Court also stated that "[w]hen any Branch acts, it is presumptively exercising the power the Constitution has delegated to it," 103 S. Ct. At 2784, by which the Court appears to have announced for the first time that whenever one of the Houses of Congress acts, its action will be "presumed" to require the concurrence of both Houses and the President if the action is to have any "legal effect" "outside the legislative branch." See generally Elliott, INS v. Chadha: The Administrative Constitution, The Constitution, and The Legislative Veto, 1983 Sup. Ct. Rev. 125, 132-134 (presumption argument unsupported by authority it cites and "unpersuasive") (cited hereinafter as "Elliott"). The "presumption", whatever its force, presumably applies to action by both Houses effected by a statutorily authorized resolution of a joint committee and not presented to the President, Cf. AFGE v. Pierce, 697 F.2d 303 (D.C. Cir. 1982). Despite the case with which Chadha can be read to foreclose arrangements like the one established long ago in the printing statutes whereby a Congressional Joint Committee exercises certain enumerated powers over government printing for all three branches see infra, pp. 10-13, Chadha, in my view, neither addresses nor answers the question we have been discussing; it merely poses the problem. For even in Chadha, the Court recognized that "[n]ot every action taken by either House is subject to the bicameralism and presentment requirements of Art. I. See post, at 2786." 103 S. Ct. At 2784. The court referred in the quoted passage to the express Constitutional provisions "by which one House may act alone with the unreviewable force of law, not subject to the President's veto." 103 S. Ct. at 2786. 1 2 "Bicameralism" refers to the Constitutional requirement that both Houses concur in a bill before it may become law. "Presentment” refers to the Constitutional requirement that a bill passed by both Houses cannot become law unless it is "presented" to the President for his concurrence or veto. See Chadha, 103 S. Ct. at 2781-2783. One would be hard pressed to read the printing statutes as conferring "legal rights" on agency officials, however. See, infra, p.22. The statutes appear only to impose obligations on those officials. In other cases, and in Chadha itself, the Court has recognized that the Constitution by its own force gives Congress implied power to "alter the legal rights" of "persons outside the legislative branch" without following the Article I procedures (bicameralism and presentment) applicable to a Bill "before it becomes a Law" U.S. Const., Art. I. §7, cl. 2. Indeed, the Court has often upheld Congressional actions dramatically "altering legal rights" even though the actions were not even authorized by a prior law signed by the President, as the JCP's discharge of its responsibilities under Title 44 is. E.g., Chadha, supra, 103 S. Ct. At 2786, n.20, citing with approval Hollingsworth v. Virginia, 3 Dall. 378, 1 L. Ed. 644 (1798) (proposing Constitutional Amendment); Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) (issuance of subpoena); Dombrowski v. Eastland, 387 U.S. 82 (1967) (issuance of subpoena); 1977 Constitution and Jefferson's Manual Secs. 293-299 (collecting cases re: Congressional imposition of sanctions for contempt); Groppi v. Leslie, 404 U.S. 496, 499-500 (1972) (same); Humphrey's Executor v. United States, 295 U.S. 602,628 (1935) (pursuant to statute, committee may compel agency to investigate); see also U.S. Const. Art. I §8, cl.18 (Necessary and proper clause). See generally Elliott 139-144; Strauss, Was There a Baby In The Bathwater? A Comment On The Supreme Court's Legislative Veto Decision, 1983 Duke L.J. 789, 795-796. (Hereinafter "Strauss"). Indeed, a single House of Congress has unilaterally exercised an implied power to jail a citizen for contempt, and the Court upheld the sentence. Groppi v. Leslie, supra. Furthermore, the Court on other occasions has taken a far more pragmatic and functional view of the separation of powers principles that underly the Chadha decision than the opinion suggests. Thus, the Court has written: "The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively." Buckley v. Valeo, 424 U.S. 1, 121 (1976)) (per curiam). "The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngs |