BOWSHER v. SYNAR 478 U.S. 714 (1986)

A 7–2 Supreme Court held that a basic provision of a major act of Congress unconstitutionally violated the principle of separation of powers because Congress had vested executive authority in an official responsible to Congress. The Balanced Budget and Emergency Deficit Control Act of 1985 (grammrudman-hollings) empowered the comptroller general, who is appointed by the President but removable by joint resolution of Congress, to perform executive powers in the enforcement of the statute. In the event of a federal budget deficit, the act requires across-the-board cuts in federal spending. The comptroller general made the final recommendations to the President on how to make the budget cuts.

Five members of the Court, speaking through Chief Justice warren e. burger, applied a severely formalistic view of separation of powers. They sharply distinguished executive power from legislative power. The comptroller general was removable only at the initiative of Congress for "transgressions of the legislative will." Congress regarded the official as an officer of the legislative branch, and persons holding the office had so regarded themselves. But the powers exercised by the comptroller general were executive in nature, preparing reports on projected federal revenues and expenditures and specifying the reductions necessary to reach target deficit levels. Because the comptroller general was "Congress's man" and was removable by Congress, the assignment of executive powers to the office gave Congress a direct role in the execution of the laws, contrary to the constitutional structure of the government.

Justice john paul stevens, joined by Justice thurgood marshall, agreed that the Gramm-Rudman-Hollings provision was unconstitutional, but for wholly different reasons. Stevens too described the comptroller general as a legislative officer, but believed that the removal power was irrelevant. Gramm-Rudman-Hollings was defective because by vesting the officer with important legislative powers over the budget, it subverted the legislative procedures provided by the Constitution. Money matters require consideration and voting by both houses of Congress; this body cannot constitutionally delegate so great a legislative power to an agent.

Justice byron r. white, dissenting, believed that the threat to separation of powers conjured up by the seven-member majority was "wholly chimerical." He believed that the necessary and proper clause supported vesting some executive authority in the comptroller general. This officer exercised no powers that deprived the President of authority; the official chosen by Congress to implement its policy was nonpartisan and independent. He or she could not be removed by Congress by joint resolution except with the President's approval.

The concurring Justices and the dissenters understood that the Constitution's separation of powers does not make each branch wholly autonomous; each depends on others and exercises the powers of others to a degree. The Constitution mixes powers as well as separates them. The three branches are separate, but their powers are not. Gramm-Rudman-Hollings reflected the modern administrative state. The majority Justices, who could not even agree among themselves whether the comptroller general exercised executive or legislative powers, lacked the flexibility to understand they did not have to choose between labels. The Court, which quoted montesquieu and mis-applied the federalist, ignored #47 and #48, which warned only against "too great a mixture of powers," but approved of a sharing of powers. Currently, money bills originate in the White House and its Bureau of the Budget, despite the provision in Article I, section 7. The First Congress established the President's cabinet and required the secretary of treasury to report to Congress, and all of alexander hamilton's great reports on the economy were made to Congress, not the President. No Court that cared afigfor original intent or that understood the realities of policymaking today would have delivered such simplistic textbookish opinions.

Leonard W. Levy
(1992)