The Supreme Court and the Separation of Powers:
The Comptroller General's Role in Sequestration Ruled Unconstitutional

When President Reagan signed GRH he had expressed doubts about the constitutionality of GAO involvement. Because various people in the

White House were of different minds, sometimes on the same day, we cannot say whether Representative Michael Synar (D-Okla.) came entirely to the correct conclusion: "it was very obvious [the administration] wanted a constitutional test to have the whole thing chucked out. They want the courts to do the dirty work for them."^[19] In any event, Attorney General Edwin Meese would not defend the constitutionality of GRH. He had already been litigating the same kind of point, against GAO, in other cases.

A lawsuit brought by Representative Synar and other congressmen and joined by the Public Citizen Litigation Group (affiliated with activist Ralph Nader) argued that "Gramm-Rudman tried to insulate Congress from the hard choices our Founding Fathers gave us and expected us to make."^[20] This group joined the Justice Department (strange bedfellows!) in challenging GAO's role.

Instead of relying upon the concept of excessive delegation—that Congress could not delegate its powers to one of its chambers or officers,

a principle that might also have threatened the legality of independent regulatory commissions—the Supreme Court held that, although such delegation in itself might be proper, it was unconstitutional to give final authority for making cuts to the comptroller general who could conceivably be dismissed by joint resolution of Congress. Asserting that the Framers had provided not merely a separate but a "wholly independent executive branch" (a big surprise to scholars who follow Richard Neustadt's celebrated formulation of "separated institutions sharing powers") the Supreme Court, by a seven to two majority on July 7, "held that the powers vested in the Comptroller General … violate the command of the Constitution that the Congress play no direct role in the execution of the laws."^[21]

Most students of the political system, we suspect, would agree with Justice White who, dissenting, criticized the majority's "distressingly formalistic view of separation of powers." White argued that the Comptroller General was in fact "one of the most independent officers in the entire federal establishment." He saw no "genuine threat to the basic division between the lawmaking power and the power to execute the law" but a real loss in depriving the president and the Congress of their effort "to counteract ever-mounting deficits." Justice Blackmun dissented that the old provision for removing the comptroller general, "rarely if ever invoked, … pales in importance beside … an extraordinary, far-reaching response to a deficit problem of unprecedented proportions." Wise or foolish, Blackmun continued, GRH was among the most important laws of recent decades. "I cannot," he concluded, "see the sense of invalidating legislation of this magnitude in order to preserve a cumbersome, 65 year-old removal power that has never been exercised and appears to have been forgotten until this litigation."^[22] Whether or not the threat to separated powers was "wholly chimerical," as Justices White and Blackmun claimed,^[23] the politicians had to pick up the pieces.