TITLE:  , B-300192, November 13, 2002
BNUMBER:  B-300192
DATE:  November 13, 2002
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, B-300192, November 13, 2002

    
B-300192
    
    
    
    
November 13, 2002
    
    MACROBUTTON The Honorable Robert C. Byrd
Chairman, Committee on Appropriations
United States Senate

   Dear Mr. Chairman:
    
This responds to your letter of October 18, 2002, requesting our opinion
on the effect of section 117 of Pub L. No. 107-229, 116 Stat. 1465
(September 30, 2002) (the fiscal year 2003 Continuing Resolution), as
amended by section 4 of Pub. L. No. 107-240,
116 Stat. 1492 (October 11, 2002).  Public Law 107-240 extended the fiscal
year 2003 Continuing Resolution.  For the reasons explained below, we
conclude that, under section 117, agencies are prohibited from using any
funds to implement the Office of Management and Budget (OMB) Memorandum
M-02-07 (hereafter, Memorandum),[1] including private sector printing, and
no funds are available to pay for the printing of the President's Budget
other than through the Government Printing Office (GPO).  Failure to abide
by section 117 would constitute a violation of the Antideficiency Act.
    
Background
    
For more than a decade there has been a continuing dispute between the
Congress and the executive branch concerning the application of the laws
governing the acquisition of printing by the departments and agencies of
the executive branch.[2]  To date, the dispute has focused on essentially
two statutes--44 U.S.C. S: 501 and section 207 of the Legislative Branch
Appropriations Act, 1993, Pub. L. No. 102-392, 106 Stat. 1703, 1719
(1992), as amended by Pub. L. No. 103-283, 108 Stat. 1423, 1440 (1994)
(reproduced at 44 U.S.C. S: 501 note) (hereafter, section 207).  Reduced
to its essence, section 501 of title 44 of the United States Code requires
that all printing for the executive departments and independent offices
and establishments of the government be done through the GPO.  In 1992, in
section 207, Congress reinforced
the policy embodied in 44 U.S.C. S: 501 by enacting a specific restriction
on the use of funds appropriated for any fiscal year for the procurement
of any printing of government publications other than by or through the
GPO.
    
On May 3, 2002, the Director of OMB issued Memorandum M-02-07 to heads of
executive departments and agencies encouraging them to acquire printing
from sources other than GPO.  The Memorandum relies specifically on a 1996
Department of Justice, Office of Legal Counsel (OLC) opinion, 20 Op. Off.
Legal Counsel 214 (1996), for the proposition that Congress may not
constitutionally require federal agencies to go through GPO to obtain
printing services.  Id.  In the words of the OLC opinion, 44 U.S.C. S: 501
and section 207 *violate constitutional principles of separation of
powers,* because, in OLC's opinion, the GPO is subject to congressional
control and performs executive functions.  Accordingly, OLC concluded that
44 U.S.C. S: 501 and section 207 are *unconstitutional and, therefore,
inoperative,* id. at 226, and *executive branch departments and agencies
are not obligated to procure printing by or through the GPO.*  Id. at 221.
    
The OMB Memorandum M-02-07 announces that executive departments and
agencies should not be *required* to procure printing through GPO and
advises agencies to select printing and duplicating service based on best
quality, cost, and time of delivery.  OMB Memorandum M-02-07 at 3.  The
Memorandum does not object to executive agencies' use of GPO printing
services:  *If GPO can provide a better combination of quality, cost, and
time of delivery, . . . then Executive Branch departments and agencies
should continue to use GPO printing services.*  Id.  The Memorandum
specifies, however, that *[w]henever the private sector can provide the
better combination of quality, cost, and time of delivery, the department
or agency should contract with the private sector.*  Id.  In addition, the
Memorandum's guidelines allow for in-house printing and require annual
reporting of agency printing and duplicating costs.  Id.
    
On October 11, 2002, Congress enacted Pub. L. No. 107-240, 116 Stat. 1492
(October 11, 2002), section 4 of which amended section 117 of Pub. L. No.
107-229, 116 Stat. 1465 (September 30, 2002).[3]  Section 117, as amended,
is straightforward.  In subsection (a), Congress *finds* that 44 U.S.C. S:
501 and section 207(a) require all government printing to be done by and
through GPO (except as those provisions provide otherwise).  Subsection
(b) consists of two paragraphs that restrict the use of any funds
appropriated through the continuing resolution for fiscal year 2003, Pub.
L. No. 107-229, as amended, or any other act.  Paragraph (1) prohibits the
use of appropriated funds to implement or comply with OMB Memorandum
M-02-07.  Paragraph (2) is narrowly drawn to prohibit the use of any
appropriated funds *to pay for the printing (other than by the [GPO]) of
the budget of the United States Government submitted by the President of
the United States under [31 U.S.C. S:1105].*[4]
    
By letter dated October 18, 2002, you asked for our opinion on the effect
of section 4 of Pub. L. 107-240, as it amended section 117 of Pub. L.
107-229, focusing specifically on sections 117(b)(1) and (b)(2).  Pursuant
to our standard practice, we asked OMB for its views on the effect of
section 117.  Letter from Susan A. Poling, Associate General Counsel,
General Accounting Office, to Philip J. Perry, General Counsel, OMB,
October 23, 2002.  In its response of October 29, 2002, OMB reiterated its
reliance on the 1996 OLC opinion noted above and referred also to an
October 22, 2002, OLC memorandum.[5]  Letter from Philip J. Perry, General
Counsel, OMB, to Anthony H. Gamboa, General Counsel, General Accounting
Office, and Susan A. Poling, Associate General Counsel, General Accounting
Office, October 29, 2002.[6] Although the October 2002 OLC memorandum
concludes that section 117 violates separation of powers, it does so by
relying on the 1996 OLC opinion's analysis of 44 U.S.C. S: 501 and section
207; it does not independently analyze the language of section 117.
    
Discussion
    
We start with the recognition that it is neither our role nor our province
to opine on or adjudicate the constitutionality of legislation passed by
Congress and signed by the President.  B-215863, July 26, 1984;
B-248111.2, Apr. 15, 1993.  Such laws come to us with a heavy presumption
in favor of their constitutionality.[7]  Like the courts, we construe
statutes narrowly to avoid constitutional issues.  INS v. St. Cyr, 533
U.S. 289, 299 n. 12 (2001).  Given our authority to settle and audit the
accounts of the government, 31 U.S.C. S:S: 3526, 3523, 712, we will apply
the laws as we find them absent a controlling judicial opinion that such
laws are unconstitutional.  B-215863, July 26, 1984; B-248111.2, Apr. 15,
1993.
    
Turning to the language of section 117, as amended, we find it clear and
unambiguous.  As noted earlier, section 117(b)(1) prohibits the use of any
*funds appropriated under this joint resolution [the fiscal year 2003
continuing resolution] or any other Act* to *implement or comply with
[OMB] Memorandum M-02-07 . . . or any other memorandum or similar opinion
reaching the same, or substantially the same, result as such memorandum.* 
OMB has not raised any construction or interpretive issues concerning the
plain import of the language of section 117(b)(1).  In our opinion,
section 117(b)(1) provides that OMB may not use any appropriated funds to
implement its memorandum, and that no executive department or agency may
use appropriated funds to acquire printing services in accordance with the
guidance provided in the memorandum.  Consequently, the effect of section
117(b)(1) is that executive branch departments and agencies may not
contract with private sector sources for printing except as otherwise
specifically provided by law.
    
Section 117(b)(2) specifically targets the President's annual budget
proposal required by 31 U.S.C. S: 1105 to be submitted to the Congress in
January or February of each year, and precludes the use of funds
appropriated in the continuing resolution for fiscal year 2003 or any
other act to pay for its printing other than by GPO.  Again, like section
117(b)(1), the language of section 117(b)(2) is clear and unequivocal--no
funds may be drawn from the Treasury to pay any source other than GPO for
the cost of printing the President's budget.  The effect of section
117(b)(2) is to require the President to make a choice: if he elects to
have his budget printed, he must use GPO; if he chooses not to use GPO's
printing services, he must submit his budget to Congress without engaging
a printer to produce it since no funds are available for that purpose. 
Because OMB, in its Memorandum, permits executive agencies to use GPO's
printing services when GPO is the most efficient and cost-effective
option, Memorandum M-02-07 at 3, OMB does not find it unconstitutional for
executive agencies on a voluntary basis to use GPO as a source of supply
for their printing needs.
    
It is, we think, too well established to require much discussion that the
Constitution grants to the Congress the power to appropriate the resources
of the government.  U.S. Const. art. I, S: 9, cl. 7 (*No Money shall be
drawn from the Treasury, but in Consequence of Appropriations made by Law
. . .*); art. I, S: 8, cl. 18 (the *necessary and proper* clause). 
Equally clear is that the Congress may restrict, condition, or limit the
executive branch's use of appropriations,[8] including the use of funds
for particular purposes, consistent with the Constitution.[9]  There is no
constitutional imperative that requires a presidential budget, let alone a
printed one.[10]  Accordingly, section 117 represents Congress' judgment
not to authorize the use of appropriated funds for printing the budget
other than by or through GPO.[11]
    
OLC and OMB have advised contracting, certifying, and disbursing officers
of the government that, given their view of the constitutionality of the
statutory provisions at issue, these administrative officials need not
fear risk of prosecution.[12]  We do not decide the validity of the
position of the executive branch that the President, under his
constitutional duty *to take Care that the Laws be faithfully executed,*
U.S. Const. art. II, S: 3, may conclude that a duly enacted statute is
*unconstitutional and therefore, inoperative.*  20 Op. Off. Legal Counsel
at 226.[13]  However, federal courts have criticized such a position. 
Lear Siegler, Inc. v. Lehman, 842 F.2d 1102 (9th Cir. 1988), rev'd en
banc, 893 F.2d 205 (9th Cir. 1989, as amended Jan. 10, 1990); Ameron, Inc.
v. United States Army Corps of Engineers, 787 F.2d 875, 889 (3d Cir. 1986)
(*The claim of right for the President to declare statutes
unconstitutional and to declare his refusal to execute them, as
distinguished from his undisputed right to veto, criticize, or even refuse
to defend them in court, statutes which he regards as unconstitutional, is
dubious at best.*).  These opinions are not isolated judicial anomalies,
unsupported by prior precedent.  As early as 1838, the Supreme Court in
Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 613
(1838), observed that *To contend that the obligation imposed on the
President to see the laws faithfully executed, implies a power to forbid
their execution, is a novel construction of the Constitution, and entirely
inadmissible.*[14]
    
Antideficiency Act
    
Under the Antideficiency Act, an officer or employee of the U.S.
government may not make or authorize an expenditure or obligation
exceeding an amount available in an appropriation.  31 U.S.C. S: 1341.  If
Congress has not appropriated funds for a particular purpose, or has
specifically prohibited a use of appropriated funds, we view any
obligation for that purpose as in excess of the amount available.  71
Comp. Gen. 402 (1992); 62 Comp. Gen. 692 (1983); 60 Comp. Gen. 440
(1981).  In the absence of an appropriation, executive officers and
employees may not draw funds from the Treasury to effectuate an otherwise
authorized purpose.[15]  If an agency does so, it has violated the
Antideficiency Act.  Id.  Officers and employees who violate the Act are
subject to adverse personnel actions and, possibly, criminal penalties. 
31 U.S.C. S:S: 1349, 1350.  Certifying and disbursing officers who certify
and make payments in excess of available amounts are personally liable
for, and must repay to the government, the amounts of those payments.  31
U.S.C. S:S: 3322(a), 3527(c), 3528(a).
    
Section 117 establishes that an agency that obligates funds to acquire
printing from some source other than GPO would violate the Antideficiency
Act.  Agencies must report violations to the President and the Congress. 
31 U.S.C. S: 1351.  Consistent with our longstanding practice, when we
learn of an unreported violation, and the agency, after notification of
its failure to report, fails to do so, we will report the violation to
Congress.  We also will continue to refer cases to the Department of
Justice where Justice Department enforcement of the Act or of debt
collection processes is appropriate.
    
Conclusion
    
The legal effect of section 117 is clear--section 117 precludes the use of
appropriated funds to implement or comply with Memorandum M-02-07, or to
print the President's budgets other than through GPO.  An administrative
action contrary to section 117 constitutes a violation of the
Antideficiency Act, and will result in certifying and disbursing officer
liability.
    
This opinion focuses on the legal effect of subsection 117(b).  Whether it
is appropriate to require departments and agencies to use GPO in
circumstances where it may not make business sense is a wholly separate
matter, beyond the scope of this opinion.  Indeed, this is a policy matter
for resolution by our elected officials.  If you have any questions about
this opinion, please contact me or Susan A. Poling, Managing Associate
General Counsel, at 202-512-5400.  We are sending copies of this opinion
to interested congressional committees as well as OMB and the Justice
Department.  The letter will be available on GAO's web site at
http://www.gao.gov.
    
Sincerely yours,
    
    
/signed/
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] Procurement of Printing and Duplicating through the Government
Printing Office, Memorandum from Mitchell E. Daniels, Jr., Director, OMB,
to Heads of Executive Departments and Agencies, May 3, 2002.
[2] See, e.g., Public Printing Reform:  Issues and Actions, CRS 98-687 GOV
(May 10, 2002) (contains a summary of the longstanding dispute).
[3] As first enacted on September 30, section 117 provided that *[n]one of
the funds made available under this Act, or any other Act, shall be used
by an Executive agency to implement any activity in violation of section
501 of title 44, United States Code.*
    
[4] Section 1105 of title 31, U.S. Code, requires the President, on or
after the first Monday in January but no later than the first Monday in
February of each year, to submit to the Congress a proposed budget for the
U.S. government for the following fiscal year. 
[5] Constitutionality of Pub. L. 107-240, Which Purports To Require the
Executive Branch To Procure Virtually All Printing Needs Through the
Government Printing Office, Memorandum from Sheldon Bradshaw, Deputy
Assistant Attorney General, Office of Legal Counsel, to Adam F.
Greenstone, General Counsel, Office of Administration, Executive Office of
the President, October 22, 2002 (hereafter, October 2002 OLC opinion).
[6] As part of its justification, OMB made a policy-based argument that
the executive branch would achieve certain economies by considering
private sector sources for its printing needs.  The Comptroller General in
February 2000 testimony before the Senate Committee on the Budget
(GAO/T-AIMD-00-73, Feb. 1, 2000) identified various policy factors for the
Congress to consider in deciding whether to authorize executive agencies
to contract with private sector vendors for their printing needs.  This
legal opinion does not address policy considerations, or the operations
and control of GPO.
    
[7] DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades
Council, 485 U.S. 568 (1988).  See also INS v. Chadha, 462 U.S. 919, 944
(1983) (The Court, in addressing a law's constitutionality, said, *We
begin, of course, with the presumption that the challenged statute is
valid.*).
[8] Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937);
Oklahoma v. Schweiker, 655 F.2d 401, 406 (D.C. Cir. 1946); National
Treasury Employees Union v. Devine, 733 F.2d 114 (D.C. Cir. 1984).
[9] United States v. Dickerson, 310 U.S. 554 (1940).  Accord United States
v. Lovett, 328 U.S. 303, 313-14 (1946) (appropriation restriction
violating Constitution's bar on Bills of Attainder was an improper
exercise of congressional appropriations power).
[10] Article I, S: 9, cl. 7, envisions that *a regular Statement and
Account of the Receipts and Expenditures of all public Money shall be
published from time to time.*  This provision, found in the article of the
Constitution that delineates the legislative powers of the Congress,
clearly is not a grant of authority to the President, but a requirement
that can be effectuated only by the Congress in an exercise of its
legislative powers.  See generally Kate Stith, Congress' Power of the
Purse, 1988 Yale L. J. 1343, 1357 (1988); 2 M. Farrand, The Records of the
Federal Convention of 1787 at 618-19 (1911).
[11]  We previously addressed whether agencies procuring printing services
contrary to the mandates of 44 U.S.C. S: 501 and section 207 could pay
contractors who performed the printing, and concluded that agencies could
not.  In a 1994 opinion to the Chair, Joint Committee on Printing, we
concluded that *section 207 prohibits an executive agency from paying a
contractor for services procured directly by the agency either on a
contractual basis or under the equitable doctrine of quantum meruit.* 
B‑251481.4, Sept. 30, 1994.  We see no reason to change our position
today. 
[12] October  2002 OLC Opinion; 20 Op. Off. Legal Counsel 214 (1996).  See
generally OMB Memorandum M-02-07, May 3, 2002.
[13]On another occasion, Assistant Attorney General Walter Dellinger, the
signator of the 1996 OLC opinion, had this to say when asked if the
President would tell the Defense Department not to enforce a provision of
the 1996 Defense authorization act that the President believed was
unconstitutional:
*When the President's obligation to execute laws enacted by Congress is in
tension with his responsibility to act in accordance with the
Constitution, questions arise that really go to the very heart of the
system.  And the President can decline to comply with the law, in our
view, only where there is a judgment where the Supreme Court has resolved
the issue.*
http://clinton6.nara.gov/1996/02/1996-02-09-quinn-and-dellinger-briefing-on-hiv-provision.html
(emphasis added).
[14] See also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587
(1952).  See generally Arthur S. Miller, The President and Faithful
Execution of the Laws, 40 Vand. L. Rev. 389, 398 (1987) (*To 'execute' a
statute . . . emphatically does not mean to kill it.  Execution means
implementation.*); Eugene Gressman, Take Care, Mr. President, 64 N.C. L.
Rev. 381, 382 (1986) (*[O]nce a bill has passed through all the
constitutional forms of enactment and has become a law, perhaps even over
a presidential veto grounded on constitutional objections, the President
has no option under article II but to enforce the measure faithfully.*).
[15] In re: Oliver L. North (George Fee Application), 62 F.3d 1434,
1435-36 (D.C. Cir. 1994) (*However large, therefore, may be the power of
pardon possessed by the President, and however extended may be its
application, there is this limit to it, as there is to all his power, --
it cannot touch moneys in the treasury of the United States, except
expressly authorized by act of Congress.  The Constitution places this
restriction upon the pardoning power.*).  See also, Babbitt v. Oglala
Sioux Tribal Public Safety Dept., 194 F.3d 1374, 1380 (Fed. Cir. 1999)
(government could not pay contractor's claim when payment of the claim is
contrary to a statutory appropriation).