UNITED STATES ARMY CORPS OF ENGINEERS, ET AL., PETITIONERS V. AMERON INC., ET AL. No. 87-163 In The Supreme Court Of The United States October Term, 1988 On Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Reply Brief For The Petitioners We have shown in our opening brief that the stay provisions of the procurement-protest title of the Competition in Contracting Act of 1984 (CICA) /1/ violate the separation of powers under the Constitution in two respects. First, they impermissibly authorize the Comptroller General -- an agent of Congress subject to removal only by Congress -- to intervene in the execution of the law by contracting agencies in the Executive Branch. The vesting of such authority in the Comptroller General directly conflicts with Bowsher v. Synar, 478 U.S. 714 (1986), in which the Court held that by assigning a role to the Comptroller General in the implementation of budget cuts under the Balanced Budget and Emergency Deficit Control Act (2 U.S.C. (Supp. IV) 901 et seq.), Congress had impermissibly "retained control over the execution of the Act and ha(d) intruded into the executive function" (478 U.S. at 734). See Pet. Br. 21-25, 27-30. Second, the CICA stay provisions permit Congress (through the Comptroller General) to take action having a legal effect outside the Legislative Branch without adhering to the requirements of bicameral action and presentment to the President that the Constitution prescribes as necessary prerequisites for Congress to work its will. Art. I, Section 7, Cls. 2, 3. In this respect, the stay provisions are unconstitutional under INS v. Chadha, 462 U.S. 919 (1983), in which the Court invalidated the legislative veto device because it authorized an entity in the Legislative Branch to take action that altered the legal rights, duties and relations of persons outside that Branch without adhering to these prerequisites. See Pet. Br. 18-19, 25-27. Respondents do not dispute that the actions of the Comptroller General under CICA have a direct legal impact on the timing of the award or performance of contracts between Executive Branch agencies and private parties. Respondents nevertheless seek to defend the CICA stay provisions in the face of Synar and Chadha by advancing a number of unconnected arguments designed to distinguish those decisions: that Congress here is taking action that has only a temporary legal effect on the execution of the laws; that the interference with executive decisions under CICA is not purposeful; that the Comptroller General's role is no different from the issuance of a congressional subpoena; that the CICA stay provisions are analogous to the report-and-wait mechanism; and that the contracting agency may override the Comptroller General's continuation of the stay in certain cases. These strained efforts to sustain the CICA stay provisions are unavailing. The remainder of respondents' briefs is devoted to attacking a strawman. They first charge us with making a broad challenge to the power of Congress and the Comptroller General to investigate government contracting and allegations of waste and fraud in executive agencies, and they then embark on a defense of that power. We however do not challenge the investigative power of Congress and the Comptroller General. We argue only that Congress's implied power of investigation does not suggest that it also has the quite different and unprecedented power that respondents urge in this case -- the power to authorize one of its Houses, committees, or agents to control the timing of the particular activity in the Executive Branch that is the subject of the investigation. Respondents' lengthy discourses on the power of investigation are therefore beside the point. A. Respondents attempt to deflect the controlling force of Synar and Chadha by seizing upon several words in each opinion that, in their view, render those decisions inapplicable to the CICA stay provisions. Respondents' reading, however, ignores the fundamental teaching of the Court's decisions. 1. Respondents seek to distinguish Synar on the basis of the Court's passing observation that the Comptroller General was given "ultimate authority" to determine the amount of the budget cuts required by law (478 U.S. at 733). This case is different, respondents maintain, because the Comptroller General's eventual ruling on the merits of a bid protest is not binding on the contracting agency and because the Comptroller General's control over the timing of the award or performance of the contract pending his ruling has only a "temporary" and "incidental" legal effect on Executive Branch officials. See Comp. Gen. & Sen. Br. 31-32; Ameron & Spkr. et al. Br. 19-20. Respondents' effort to sustain the CICA stay provisions on this basis is pure bootstrapping, since the function to which the Comptroller General's control over the timing of contracting activities is said to be incidental -- his ruling on a protest concerning those same activities -- is one that plainly could under Synar, be made binding on the executive agency concerned. 478 U.S. at 732-734. In any event, as we explain in our opening brief (at 27-30), respondents' reliance on the words "ultimate authority" in Synar is misplaced. The Court held in Synar that "because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers" (478 U.S. at 732) or "intrude() into the executive function" (id. at 734). This categorical holding, based on a clear explication of the limits on the Comptroller General's authority as an agent of Congress, does not admit of any exception for those intrusions by the Comptroller General into the executive function that are only "temporary." Nor does the Court's categorical holding suggest that the Comptroller General might be permitted to intrude into the executive function if his action is characterized as ancillary or "incidental" to some other duty. In Synar itself, Congress surely would have been barred from authorizing the Comptroller General to direct the President to suspend or postpone certain expenditures for a "temporary" period of several months, rather than cancelling them for the entire fiscal year. And Congress would have been equally barred from authorizing interested persons to file protests of existing spending levels with the Comptroller General and requiring, as an "incidental" feature of that mechanism, that the President suspend a specified level of expenditures throughout the Executive Branch for as long as it might take the Comptroller General to render a decision on the protest. The result shoudl be no different here simply because the protest that triggers the variable stay concerns the award of an individual contract, not a decision of government-wide application, as in Synar. Chadha vividly illustrates that the protection afforded by the separation of powers is of special importance in the context of a discrete governmental decision that affects only a single person. The decision in Buckley v. Valeo, 424 U.S. 1 (1976), also refutes the notion that the Comptroller General's control over the timing of contracting activities is constitutional on the ground that it is merely "incidental" to Congress's power of investigation. The Court held in Buckley that a law that violates the separation of powers under the Constitution cannot be justified on the ground that it is a reasonable means under the Necessary and Proper Clause (Art. I, Section 8, Cl. 18) of implementing a power that the Constitution expressly vests in Congress (424 U.S. at 132-135). See Pet. Br. 32. A fortiori, Congress's power to conduct investigations, which is not even express but instead is implied from Article I's grant of "legislative Powers," does not authorize Congress, as a necessary and proper "incident" of investigation, to intrude its investigatory agent, the Comptroller General, into the execution of the law that is the subject of the investigation. Against this background, the Court's passing reference in Synar to the Comptroller General's "ultimate authority" merely emphasized that the Comptroller General's determination was controlling on the particular question there at issue. The Comptroller General also has "ultimate authority" in that sense on the question of the timing of contracting activities under CICA, because in the absence of a finding of exigent circumstances (see 31 U.S.C. 3553(c)(2) and (d)(2)), the contracting agency cannot proceed until the Comptroller General renders his decision on the merits of the bid protest. 2. Respondents attempt to avoid the force of Chadha by focusing on the Court's statement that "the House (of Representatives) took action that 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" (462 U.S. at 952). See Comp. Gen. & Sen. Br. 32-33; Ameron & Spkr. et al. Br. 16). a. Respondents first contend that the passage just quoted, like the term "ultimate authority" in Synar, does not apply to "legally significant activity" by Congress or its agent that is only "temporary" (Ameron & Spkr. et al. Br. 16) or to activity that does not "permanently and significantly" alter "primary rights" of executive officials and private parties (Comp. Gen. & Sen. Br. 33). However, the quoted passage contains no hint of the distinctions respondents draw. Nor does the rationale of Chadha support such distinctions. The bicameralism and presentment requirements enforced in Chadha were intended to protect the coordinate Branches against encroachment and to protect the people against arbitrary, improvident, and ill-considered measures. See 462 U.S. at 946-951. These purposes apply in full force where measures adopted by the Legislative Branch invade the prerogatives of a coordinate Branch or the rights of the people on a temporary basis. Cf. First English Evangelical Lutheran Church v. County of Los Angeles, No. 85-1199 (June 9, 1987), slip op. 12-15. Under Chadha, for example, Congress surely would be barred from delegating to one of its Houses (or to the Comptroller General) the authority to postpone an Executive Branch decision, rather than to veto it entirely. Such a directive by a Legislative Branch entity would clearly alter the "legal rights, duties, and relations" of persons outside that Branch -- just as a preliminary injunction entered by the Judicial Branch imposes legal obligations on the defendant and alters the legal rights and relations of the parties on a temporary basis, pending a final decision on the merits. Walker v. City of Birmingham, 388 U.S. 307 (1967). b. Respondents also seek to distinguish Chadha by relying on the Court's use of the phrase "purpose or effect" in the passage quoted above. Respondents insist that although stays of contracting activity under CICA "have a temporary legal significance," they do not have the "purpose and effect" of altering legal rights "with finality," but rather have the "purpose and effect of facilitating legislative inquiry and scrutiny of administration" (Ameron & Spkr. et al. Br. 16, 19, 20, 27). See also Comp. Gen. & Sen. Br. 33. There are a number of flaws in this argument. First, the reference in Chadha to action having the "purpose and effect" of altering legal rights, duties, and relations was merely part of a description of the particular action that the House of Representatives took in that case. The Court did not suggest that a statute violates the separation of powers only if Congress or its agent acts with the subjective purpose of breaching that subjective purpose of breaching that separation. To the contrary, when the Court actually stated that relevant legal test in Chadha, it did not use the word "purpose"; instead, the Court stated the test to be whether the measure " 'is properly to be regarded as legislative in its character and effect'" (462 U.S. at 952, quoting S. Rep. 1335, 54th Cong., 2d Sess. 8 (1897) (emphasis added); see also id. at 954 & n.16). Accordingly, the focus of the separation-of-powers inquiry under Chadha must be on the "character" and effect of the statute and the Legislative Branch action that it authorizes, not on their underlying purpose. Second, respondents do not and cannot dispute that the CICA stay provisions have the "purpose and effect" of temporarily altering the contractual rights and relations of executive officials and private parties. That much is evident from the text of the Act, which provides that after a protest is received, "a contract may not be awarded," -- or if the contract has been awarded, the agency shall "immediately direct the contractor to cease performance" -- "while the protest is pending" (31 U.S.C. 3553(c)(1), (d)(1)). Clearly, the immediate purpose of the statutory provisions is to enable the Comptroller General to postpone the challenged procurement activity until he rules on the protest. See H.R. Rep. 98-1157, 98th Cong., 2d Sess. 24 (1984) (CICA responded to complaints that "GAO has no power to stop a contract award or contract performance while a protest is pending"). Third, as the legislative history makes clear, the basic goal of the CICA stay provisions was to enable the Comptroller General to intervene in and have an impact on the execution of the procurement laws. See Pet. Br. 23-24. Thus, although respondents are correct that Congress intended the stay provisions to be in aid of the investigative powers that Congress vested in the Comptroller General, its ultimate purpose was to ensure that the Comptroller General's investigation would have a meaningful impact on the very contracting activity whose timing is subject to his control. In this respect as well, the CICA stay provisions have the "purpose and effect" of altering the legal rights, duties and relations of persons outside the Legislative Branch. B. 1. Respondents argue that Synar and Chadha do not control because the Comptroller General's role under the CICA stay provisions is no different from other prerogatives of Congress that relate to its power of investigation. Respondents point out (Comp. Gen. & Sen. Br. 32-33, 47-48; Ameron & Spkr. et al. Br. 15-17) that a subpoena issued by one House of Congress to compel testimony or the production of documents is legally binding on the recipient and that the recipient may be held in contempt by that House if he refuses to comply. In respondents' view, these are examples of permissible actions by one House of Congress in aid of its investigatory powers that bind and affect the legal rights of persons outside the Legislative Branch without the need for enactment of a law, and they argue that the Comptroller General's role under the CICA stay provisions is sufficiently similar that it too should be sustained. This argument is without merit. A subpoena directs the recipient to furnish evidence to a House or committee of Congress in furtherance of a duly authorized investigation. The subpoena itself therefore creates a new and discrete legal duty owed by the recipient to Congress, and it concerns the relationship between the recipient and the House or committee to which he has been summoned. But the subpoena has no legal effect on the rights and duties of the recipient (or others) that exist independently of the subpoena, or on the legal relationships of the recipient with others who are "all outside the Legislative Branch" (462 U.S. at 952). For this reason, the recipient of a congressional subpoena seeking information concerning on-going conduct is not barred from continuing to engage in that conduct during the congressional inquiry. Indeed, the reasoning of Chadha would clearly bar Congress from authorizing the committee that issued a subpoena to require the recipient to cease the activity that is the subject of the investigation until he has furnished the requested information and the committee has completed its investigation. The Constitution would not permit a committee of Congress to regulate primary conduct outisde the Legislative Branch in that manner. Marshall v. Gordon, 243 U.S. 521, 541, 545-546, 548 (1917); cf. Thomas v. Arn, 474 U.S. 140, 146-147 & n.5 (1985). Respondents in fact concede that congressional subpoenas "do not alter (the) subjects' substantive rights" and that "their rights are exactly the same when the inquiries are done as they were prior to the inquiry" (Ameron & Spkr. et al. Br. 17 (footnote omitted)). What respondents fail to appreciate is that the rights of the recipient of a congressional subpoena vis-a-vis others outside the Legislative Branch are "exactly the same" during the congressional inquiry as well. By contrast, under the CICA stay provisions, the legal rights, duties and relations of the executive agency and private parties who are concerned with the bid protest are not "exactly the same" during the Comptroller General's inquiry; they are substantively altered for the duration of the inquiry, which is under the control of an agent of Congress. Thus, the Comptroller General's ability under CICA to control the timing of the award or performance of contracts between executive agencies and other parties outside the Legislative Branch draws no support from the authority of each House of Congress to provide for the issuance of subpoenas requiring the recipient to furnish evidence. /2/ 2. Respondents also rely on a statute that, they assert "allow(s) (congressional) committees to immunize witnesses in order to compel their testimony" (Comp. Gen. & Am. Br. 48 & n.185, citing 18 U.S.C. 6001-6005; see also Ameron & Spkr. et al. Br. 15). In fact, the cited statute provides for a court to issue an order, upon the application of the House or committee concerned, to require the furnishing of testimony or other information if an individual refuses to provide it on the basis of the privilege against compelled self-incrimination. 18 U.S.C. 6005(a). The statute further provides that if the court issues such an order, the witness may not refuse to comply on the basis of the Fifth Amendment privilege, and that information furnished under the compulsion of the order may not be used against the witness in any criminal case (except a prosecution for perjury, etc.). 18 U.S.C. 6002. These provisions only enable a court to grant an individual immunity from the use of information furnished to Congress; they do not authorize a court (much less a House or committee of Congress) to grant the witness immunity from prosecution for the underlying conduct. The immunity statute therefore regulates the incidents of the relationship between a witness and Congress and the use of information that was furnished in that relationship; it does not affect legal rights and duties that exist independently of the congressional investigation. /3/ C. Respondents next argue (Comp. Gen. & Sen. Br. 25-27, 28, 30-31; Ameron & Spkr. et al. Br. 17-19, 31-32) that the CICA stay provisions are constitutional because they resemble the "report-and-wait" mechanism discussed in Sibbach v. Wilson & Co., 312 U.S. 1, 14-15 (1941); Chadha, 462 U.S. at 935 n.9; and Alaska Airlines, Inc. v. Brock, No. 85-920 (Mar. 25, 1987), slip op. 11 & n.12. As we explain in our opening brief (at 36-39), however, the two devices are quite different, and even the court below concluded that "(t)he stay provision at issue in CICA is not a report and wait provision" (Pet. App. 26a n.9). Under a typical report-and-wait statute, Judicial or Executive Branch action is reported directly to Congress, in order to afford Congress the opportunity to overturn it by passing a law. Sibbach, 312 U.S. at 14-15 & n.17; Chadha, 462 U.S. at 935 & nn. 8, 9; Alaska Airlines, slip op. 11 & n.12. By contrast, under CICA, bid protests are not reported directly to Congress, and they do not ordinarily reach Congress (in statistical form, as part of an annual summary) until after the Comptroller General has rendered his decision and the executive agency has proceeded with the contracting action (Pet. App. 26a n.9). Accordingly, the purpose of a stay under CICA is not to afford Congress an opportunity to pass a law, but to freeze contracting activity pending action by the Legislative Branch that does not take the form of a law and that cannot, under Synar, bind the Executive Branch. There is, in other words, no valid legislative action that the agency is required to wait for. Moreover, the length of a stay under CICA is determined with specific reference to the particular contract dispute, since the stay is lifted when the Comptroller General rules on the merits of that dispute. This factor creates the potential for the Legislative Branch to exert leverage over contracting decisions of Executive Branch agencies by inducing the agency to revise its position in order to secure a prompt decision by the Comptroller General or a dismissal of the protest by the complaining party, which would then lift the stay and free the agency to proceed. This potential for Legislative Branch hegemony in the executive sphere would be magnified several times over if the CICA stay provisions are held to be constitutional: Congress might then respond by enacting legislation conferring comparable authority over a broad range of contracting decisions and other actions of Executive Branch agencies on either House of Congress or on any of their various committees. The result would be to reintroduce the blending of legislative and executive powers in the Legislative Branch that the Court's seminal decisions in Chadha and Synar were intended to eliminate. See AFGE v. Pierce, 697 F.2d 303, 306 (D.C. Cir. 1982), discussed at Pet. Br. 27. It is true that under the report-and-wait provisions at issue in Sibbach, Chadha and Alaska Airlines, the duration of the waiting period was determined not by the expiration of a number of calendar days specified in the statute itself, but rather by the adjournment of Congress at the end of a session (Sibbach, 312 U.S. at 8; Chadha, 462 U.S. at 935 & n.8, 954 n.17) or by the expiration of 30 days when both Houses of Congress are in session (Alaska Airlines, slip op. 11 & n.12). Because Congress controls the timing of its own adjournment, the duration of the stay of the particular action under those statutes was, at least theoretically, also within the discretionary control of Congress. However, there is very little reason to fear that the method for terminating the waiting period under those statutes would lead to improper congressional leverage over executive decisions. The adjournment of Congress and its Houses is almost invariably determined by the imperatives of their general legislative programs; it is exceedingly unlikely that they would adjourn solely to terminate the waiting period that must expire before a particular executive action may go into effect. As a result, the expiration of the waiting period under the report-and-wait statutes at issue in Sibbach, Chadha and Alaska Airlines would occur without regard to the sort of individualized consideration of the merits of discrete executive actions that the Comptroller General undertakes pursuant to CICA. Finally, the termination of a stay of executive action upon the adjournment of Congress may be independently justified on two additional grounds: First, adjournment terminates the ability of Congress to take advantage of the lawmaking opportunity that the report-and-wait mechanism is intended to afford. Second, the Constitution itself expressly exempts adjournment from the presentment requiprement (Art. I, Section 7, Cl. 3) and in some cases from the bicameralism requirement as well (Art I, Section 5, Cl. 1). These constitutional exceptions reasonably can be understood to render a inapplicable to report-and-wait statutes the rule of Chadha that bars Congress from thaking action having a legally binding affect outside the Legislative Branch by short of lawmaking. See 462 U.S. at 955-956. There is no comparable exception for the actions of the Comptroller General. The regime established by the report-and-wait statutes therefore is far different from the sort of individualized control that an agent of Congress may exert over the timing of discrete actions of Executive Branch agencies under a statute such as CICA. D. 1. Respondents further assert (Comp. Gen. & Sen. Br. 34; Ameron & Spkr. et al. Br. 32-35) that the CICA stay provisions do not violate the separation of powers because the head of the procuring agency may proceed with the contract prior to termination of a stay upon a written finding of "urgent and compelling circumstances that significantly affect interests of the United States," or, if the contract has already been awarded, upon a finding that "performance of the contract is in the best interests of the United States" (31 U.S.C. 3553(c)(2), (d)(2)). There is a vast difference, however, between the power to exercise a designated constitutional function (here, the execution of the laws), and the power to override the exercise of that function by some other branch of government. For example, if either the Executive Branch or the Judicial Branch were to promulgate laws, without a proper delegation of authority, Congress would have the power to override enacted legislation. But this does not mean that an exercise in executive or judicial lawmaking of this sort would be free of serious separation-of-powers difficulties. Cf. City of Milwaukee v. Illinois, 451 U.S. 304, 313 (1981). Just as the conferral of "(a)ll legislative Powers" upon Congress should not be reduced to the power to override the exercise of those powers by others, so the President's power to "take Care that the Laws be faithfully executed" (Art. II, Section 3) should not be reduced to the power to override the exercise of that function by an agent of Congress. Moreover, there can be no claim, as respondents suggest (Comp. Gen. & Sen. Br. 29; Ameron & Spkr. et al. Br. 30), that the override provisions leave executive agencies in the same position they were in under pre-CICA Executive Branch regulations. As we have explained (Pet. Br. 607), the pre-existing regulations (which applied to protests filed with the contracting agency as well as the Comptroller General) contained no requirement that performance be halted if the protest was filed after the contract was awarded, and they contained far less stringent standards for awarding a contract if the protest was received prior to award, including a provision permitting such an award if the contracting officer determined that it would be "advantageous to the government" (48 C.F.R. 14.407-8(b)(4) (1984). And of course, the prior regulations respected the separation of powers because they were imposed by the Executive Branch on its own contracting activities, in order to promote the sort of informal cooperation between the Branches that respondents urge. Cf. United States v. Nixon, 418 U.S. 683, 694-696 (1974). 2. Respondents also seek to minimize the power of the Comptroller General to determine the timing of the award or performance of individual contracts by insisting that CICA does not really permit the Comptroller General to exercise discretion over the timing as such. This is so, in their view, because the Comptroller General may not base the timing of his ruling on any factor other than the amount of time required to decide the protest. See Comp. Gen. & Sen. Br. 27-30; Ameron & Spkr. et al Br. 28-30. Respondents rely for this proposition on the requirement that the Comptroller General shall "provide for the inexpensive and expeditious resolution of disputes" (31 U.S.C. 3554(a)(1)), decide appropriate cases within 45 days under the "express option" (31 U.S.C. 3554(a)(2)), and dismiss frivolous cases immediately (31 U.S.C. 3554(a)(3)). However, these provisions do not on their face prevent the Comptroller General from taking into account his own perception of the relative need for expedition in establishing priorities for the resolution of bid protests, and it is not clear that Congress would have wanted to eliminate all flexibility in this regard. Moreover, as the provisions for an express option and dismissal of frivolous cases make clear, the length of the stay is intimately bound up with the Comptroller General's assessment of the merits of the protest, which renders it impossible for the Comptroller General to divorce the question of when he will rule from the merits of the executive agency's contracting action. In any event, the limitations that respondents perceive on the factors that the Comptroller General may take into account in deciding when to issue his decision do not render the CICA stay provisions constitutional. The significant point for purposes of constitutional analysis is that whatever the permissible factors may be, it is an agent of Congress subject to removal only by Congress, not an officer of the Executive Branch, who is charged by CICA with considering those factors and with proceeding to a decision as he sees fit -- and who is thereby vested with the power to determine the timing of the award or performance of a contract between an Executive Branch agency and a private party for as long as he retains the bid protest under submission. /4/ E. Contrary to respondents' contention (Comp. Gen. & Sen. Br. 33-34; Ameron & Spkr. et al. Br. 32-35), the CICA stay provisions cannot be sustained under a balancing approach drawn from Morrison, slip op. 36, CFTC v. Schor, 478 U.S. 833, 856 (1986), and Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977). In all three of those cases, the action of the Legislative Branch took the form of a law duly enacted by Congress, and there was "no question of the aggrandizement of congressional power at the expense of a coordinate branch" (Schor, 478 U.S. at 886). See Pet. Br. 40-41. Indeed, the Court in Morrison expressly distinguished Synar and Chadha on the ground that the independent counsel statute does "not pose a 'dange(r) of congressional usurpation of Executive Branch functions'" (dlip op. 35, quoting Synar, 478 U.S. at 727). This case, by contrast, is controlled by Synar and Chadha because it does involve an aggrandizement of Congress's power (through the Comptroller General) and a congressional usurpation of Executive Branch functions. The CICA stay provisions therefore are unconstitutional without any occasion for resort to a balancing test or to a particularized inquiry into the degree of interference with Executive Branch functions, because "(t)he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty" (Synar, 478 U.S. at 730). The wisdom of adhering to these structural protections is especially evident in this case, because if Congress perceived a need for some external check on the timing of contracting actions of executive agencies pending a review of those actions, there was no need to lodge that check in an official of the Legislative Branch. Congress could have vested the courts with authority to enjoin the award or performance of a contract under familiar standards for the issuance of preliminary injunctions. Or Congress could have expanded the role of the boards of contract appeals in the Executive Branch. See Pet. Br. 43-44. Indeed, the availability of these obvious alternatives would weigh heavily against the constitutionality of the CICA stay provisions even if a balancing approach were appropriate. By the same token, under a balancing test, the impact of the CICA stay provisions on the Executive Branch could scarcely be termed de minimis, as respondents assert (Comp. Gen. & Sen. Br. 34). Respondents concede (id. at 14) that almost 3000 protests were filed with the Comptroller General during fiscal year 1987, and most of those resulted in a stay of at least some duration, with attendant disruption of contract planning, award, and performance. /5/ F. Finally respondents charge us with mounting a "broad challenge" to the authority of Congress (and the Comptroller General on its behalf) to oversee the administration of the laws by executive agencies, and they close their briefs with an extensive defense of that authority. See Ameron & Spke. et al. Br. 36-41; Comp. Gen. & Sen. Br. 35-50. In particular, respondents state our position to be that the scope of Congress's power is limited to investigaitons in "direct support" of lawmaking (Com. Gen. & Sen. Br. 21, 35, 37); that efforts by Congress (and its committees, Members and agents) to influence the actions of the Executive Branch are "illegitimate" (id. at 47) and "pernicious" (Ameron & Spkr. et al. Br. 36); and that the Court should "silence the 200-year-old dialogue between Congress and the Executive that is the very pith of our constitutional system" (Comp. Gen. & Sen. Br. 42). We argue none of these things in our opening brief. To the contrary, we quote this Court's observation in Watkins v. United States, 354 U.S. 178 (1957), that Congress's broad power of investigation permits it to conduct " 'probes into departments of the federal Government to expose corruption, inefficiency or waste' " (Pet. Br. 31, quoting 354 U.S. at 187); we stress that we are not suggesting that "it is improper for Congress to provide for the Comptroller General to express his views on procurement matters" (Pet. Br. 35); and we acknowledge that "the practical dialogue between the political Branches may give rise to numerous occasions for committees, Members, and agents of Congress to express their views" (Pet. Br. 34). We of course do argue that Congress's power to investigate procurement and other activities in the Executive Branch furnishes no support for the far different and novel power that respondents claim for Congress in this case -- the power to pass a law vesting the Comptroller General (or, presumably, a committee of Congress) with the authority to control the timing of the executive activities that are the subject of the investigation. Respondents do not cite a single precedent for such a law in their extensive discussions of Congress's investigatory powers. Respondents nevertheless argue that the Comptroller General's authority under CICA to determine the timing of the protested contracting activity is constitutional because it is incidental to (i.e., a necessary and proper means of implementing) the power of investigation. But nothing in the nature of the power to investigate implies that the investigator has the power to control the unfolding of the subject matter he is investigating. That is especially true of an investigation within the constitutional framework of separated powers, under which responsibility for the administration of the laws must at all times remain in the Executive Branch, subject to review by the Judicial Branch in cases properly brought before it. As this Court has stressed, Congress's "power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary." Quinn v. United States, 349 U.S. 155, 161 (1955). Respondents further contend that the Comptroller General's control over the timing of procurement activities in the Executive Branch is justified by Congress's desire to ensure that the decision the Comptroller General renders at the conclusion of his investigation will have an influence on those procurement activities. This contention, too, is without merit, because as we have explained (see pages 4-5, supra), the Necessary and Proper Clause does not confer authority on Congress to carry its express or implied powers into effect in a manner that violates the separation of powers. The Constitution itself specifies the means by which Congress may ensure that its influence will be felt -- through the passage of a new law. See Chadha, 462 U.S. at 954-955. The power of investigation is itself merely ancillary to, and is implied from, the express conferral on Congress of "legislative Powers," which consist only of "the authority to make laws." Buckley, 424 U.S. at 139; see Pet. Br. 18-19. The Court accordingly has made clear that "an investigation is part of lawmaking" and "is justified solely as an adjunct of the legislative process" (Watkins, 354 U.S. at 197). Accord, Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504 n.15 (1975); Barenblatt v. United States, 360 U.S. 109, 111-112 (1959); Sinclair v. United States, 279 U.S. 263, 291-292 (1929); McGrain v. Daugherty, 273 U.S. 135, 178 (1927). See also Buckley, 424 U.S. at 137-138; Nixon v. Administrator, 433 U.S. at 499 (Powell, J., concurring). To be sure, this source of the power permits a broad range of congressional investigation and oversight of the activities of Executive Branch agencies, because those agencies are established by law and are supported by funds made available under appropriation laws, and thus an investigation into their activities will almost invariably implicate the potential for the enactment of legislation by Congress. See generally Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 194-210 (1926). We recognize as well that the investigative and oversight activities of Congress may properly influence Executive Branch officials to take administrative steps that will obviate the need for Congress to enact a new law. But that result, when it obtains, is at bottom an incidental consequence of the practical dialogue between the political Branches in the performance of their distinct responsibilities under the Constitution. However salutary the exchange of views between the Branches may be, Congress does not have the power to facilitate its role in that dialogue by means that violate the separation of powers under the Constitution. For the foregoing reasons and the additional reasons stated in our opening brief, it is respectfully submitted that the judgment of the court of appeals should be reversed. CHARLES FRIED Solicitor General SEPTEMBER 1988 FOOTNOTES /1/ Pub. L. No. 98-369, Div. B, Tit. VII, 98 Stat. 1199-1203, 31 U.S.C. (Supp. IV) 3553, 3554. Hereinafter, all citations are to Supplement IV to the 1982 edition of Title 31. /2/ For the same reason, the power of each House to punish witnesses for contempt for refusing to comply with a subpoena (see Comp. Gen. & Sen. Br. 48; Ameron & Spkr. et al. Br. 15) does not support the Comptroller General's authority under the CICA stay provisions. The contempt power extends only to the punishment of persons who interfere with each House's exercise of its legislative powers, including its ancillary power of investigation; it does not permit one House or a committee of Congress to reach matters -- such as contracts between executive agencies and private parties -- that have no relationship to the procedures by which those powers are exercised. Marshall v. Gordon, 243 U.S. at 545-546. Respondents also rely (Comp. Gen. & Sen. Br. 33, 44-45) on the statute authorizing certain Members of Congress to request the Attorney General to apply to a court for the appointment of an independent counsel (see 28 U.S.C. 529(g)), which the Court upheld in Morrison v. Olson, No. 87-1279 (June 29, 1988). Respondents ignore the fact that the Court found 28 U.S.C. 529(g) unobjectionable because "the Attorney General has no duty to comply with the request," although he must respond within a given time (Morrison, slip op. 35). In other words, a congressional request under the independent counsel statute does not alter the substantive duties of the Attorney General, and it has no direct impact on the legal rights of the person who is the subject of the request. /3/ In Adams v. Maryland, 347 U.S. 179, 183 (1954), which respondents also cite (Comp. Gen. & Sen Br. 48 n.185; Ameron & Spkr. et al. Br. 15 n.21), the Court sustained a statute that barred the use in any criminal proceeding of testimony given by a witness before a House or committee of Congress. Once again, the statute concerned the use of information that was made available only by virtue of the witness's testimony in the congressional investigation, not legal duties that exist apart from that investigation. /4/ Respondents tacitly concede that the vesting of such authority in the Comptroller General raises constitutional concerns, because they recognize (Comp. Gen. & Sen. Br. 28-29 n.114; Ameron & Spkr. et al. Br. 31 n.48) that the authorization in 31 U.S.C. 3554(a)(1) for the Comptroller General to extend the stay beyond 90 working days is especially vulnerable, and they suggest that the Court could readily sever that authorization in order to save the remainder of the stay provisions. /5/ Respondents make several erroneous assertions regarding the background of the statutory provisions at issue here. First, respondents suggest (Ameron & Spkr. et al. Br. 24) that the Department of Justice did not object in 1979 to participation by the Comptroller General in the decision whether a contract should be awarded after a protest is filed. The Department in fact urged, on constitutional grounds, that any forum for resolving bid protests be placed in the Executive Branch; and although the Department did state that a contract award should be held up under a bid-protest system in the absence of exigent circumstances, it further stated that whether an award should be held up "is a decision which can be made only by the Executive" and "(t)he Legislature or its officers cannot participate in that decision." Federal Acquisition Reform Act of 1979: Hearing Before the Subcomm. on Federal Spending Practices and Open Government of the Senate Comm. on Governmental Affairs, 96th Cong., 1st Sess. 277 (1979). In addition, respondents' discussion of the background of the 1984 Act (Ameron & Spkr. et al. Br. 20-28) leaves the impression that the bid-protest provisions of CICA were the product of extensive consideration by Congress. The hearings conducted by committees of earlier Congresses that respondents cite (Ameron & Spkr. et al. Br. 22-25) were for the most part addressed to substantive contracting standards, not the bid-protest mechanism eventually enacted in CICA. Moreover, as we have explained (Pet. Br. 42-43 n.24), in the 98th Congress, the bid-protest title of CICA was inserted into the omnibus Deficit Reduction Act of 1984 (DEFRA) at the last minute by the conference committee, and it consequently received virtually no attention by the 98th Congress as a whole. The relevant House committee did hold hearings on a bill that included the bid-protest title later incorporated into DEFRA (Competition in Contracting Act of 1984: Hearings on H.R. 5184 Before a Subcomm. of the House Comm. on Gov't Operations, 98th Cong., 2d Sess. (1984)), but the bill based on those hearings was not reported to the House until almost three months after DEFRA was passed. To our knowledge, the only other occasion on which a bill containing a bid-protest mechanism was even reported out of committee was six years prior to the enactment of CICA (see S. Rep. 95-715, 95th Cong., 2d Sess. 61-62 (1978), and that bill (S. 1264, 95th Cong., 2d Sess.) was never brought to a vote in the Senate.