Involvement of the Government Printing Office in Executive Branch Printing and Duplicating ( 1996 )

Involvement of the Government Printing Office in Executive
Branch Printing and Duplicating
Section 207(a) o f the Legislative Branch Appropriations Act, 1993, as amended, which requires all
executive branch printing to be procured by or through the Government Printing Office, vests
executive functions in an entity subject to congressional control and is therefore unconstitutional
under the doctrine of separation o f powers.
Agency contracting officers who act consistently with this opinion, and in derogation of the contrary
view o f the Com ptroller General, would face little or no risk o f civil, criminal, or administrative
liability.
M a y 31, 1996
M e m o r a n d u m O p in io n for t h e Gen er a l Co un sel
G e n e r a l S e r v ic e s A d m in is t r a t io n
Y o u have asked us to analyze the constitutional implications of the involvement
of the Government Printing Office (“ GPO” ) in executive branch printing and
duplicating under the authority of section 207(a) of the Legislative Branch Appro­
priations Act, 1993, Pub. L. No. 102-392, 106 Stat. 1703, 1719 (1992) (codified
at 44 U.S.C. §501 note) (“ 1993 Act” ), which was recently amended by section
207(2) of the Legislative Branch Appropriations Act, 1995, Pub. L. No. 103-
283, 108 Stat. 1423, 1440 (1994) (“ 1995 Act” ).1 You have also posed a more
general question as to “ whether GPO may undertake any decision-making role
in printing for the Executive Branch.” While we have previously expressed our
tentative view that such legislative branch involvement in executive branch affairs
would contravene separation of powers principles,2 we now face the issue in the
context of a specific congressional enactment investing in the GPO the authority
to control a significant proportion of executive branch printing and duplicating.
See 44 U.S.C. §501 note. We find that the GPO is subject to congressional con­
trol, and conclude that the GPO’s extensive control over executive branch printing
is unconstitutional under the doctrine of separation of powers. Finally, we make
various observations about potential liability of contracting officers who act con­
sistently with this opinion but contrary to the Comptroller General’s view, which
we reject.
1 Letter for W alter Dellinger, Assistant A ttorney General, O ffice o f Legal Counsel, from Emily C. Hewitt, General
C ounsel, G eneral Services Administration (A ug. 23, 1994).
2 See, e.g.. M emorandum for Sheila F. Anthony, Assistant Attorney General, Office o f Legislative Affairs, from
W alter Dellinger, A ssistant Attorney General, Office o f Legal Counsel, Re: Government Printing Provisions in H.R.
3400 and S. 1824 (A pr. 1, 1994) (separation o f powers violation would occur if Public Printer received power
to control printing and duplicating operations in executive and judicial branches).
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I
In the early years of the Republic, Congress endeavored to devise a satisfactory
contract-based system for printing its official documents. In 1846, for example,
Congress established an orderly contract process “ for supplying the Senate and
House of Representatives . . . with the necessary printing for each[.]” J. Res.
of Aug. 3, 1846, § 1, 29th Cong., 9 Stat. 113, 113. Printing projects “ of the respec­
tive houses” were divided into classes for which the Secretary of the Senate and
the Clerk of the House of Representatives accepted sealed bids. Id. The 29th Con­
gress further established a committee on printing “ consisting of three members
of the Senate and three members of the House.” Id. §2, 9 Stat. at 114. The com­
mittee on printing was entrusted with “ [the] power to adopt such measures as
may be deemed necessary to remedy any neglect or delay on the part of the [cho­
sen low-bid] contractor to execute the work ordered by Congress, and to make
a pro rata reduction in the compensation allowed, or to refuse the work altogether,
should it be inferior to the standard[.]” Id.
The contract system devised in 1846 apparently proved unsatisfactory. The 32d
Congress revisited the subject of public printing only six years later and added
structure and oversight to the basic framework established in 1846. See Act of
Aug. 26, 1852, ch. 91, 32d Cong., 10 Stat. 30. The 32d Congress created the
position of “ superintendent of the public printing,” set qualification requirements
for the position,3 and directed the superintendent of the public printing to serve
as a clearinghouse for the printing projects of the Congress and the departments
and bureaus of the executive branch. Id. §3, 10 Stat. at 31. Congress chose to
retain the contract-based approach to printing, however, and assigned to the super­
intendent of the public printing the tasks of soliciting bids for public printing
work and delivering the materials submitted by Congress and the executive branch
“ to the public printer or printers in the order in which it shall be received, unless
otherwise ordered by the joint committee on printing.” Id. §§3-4, 10 Stat. at
31.
The 32d Congress also provided for the election of “ a public printer for each
House of Congress, to do the public printing for the Congress for which he or
they may be chosen, and such printing for the executive departments and bureaus
of the government of the United States as may be delivered to him or them to
be printed, by the superintendent of the public printing.” Id. §8, 10 Stat. at 32.
Congressional dissatisfaction with the slow pace of public printing was manifest.
The 32d Congress set a 30-day deadline for each public printing project, id. § 5,
and expressly stated that “ the public printer or printers may be required by the
superintendent [of the public printing] to work at night as well as through the
3 Congress explained that the “ superintendent shall be a practical printer, versed in the various branches o f the
arts of printing and book-binding, and he shall not be interested directly or indirectly in any contract for printing
for Congress o r for any department or bureau o f the government o f the United States.” Act o f Aug. 26, 1852,
§2, 10 Stat. at 31.
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day upon the public printing, during the session of Congress, when the exigencies
of the public service require it.” Id. § 10, 10 Stat. at 34. Finally, the 32d Congress
created the Joint Committee on the Public Printing to resolve disputes “ between
the superintendent of the public printing and the public printer,” id. § 12, 10 Stat.
at 34, and “ to adopt such measures as may be deemed necessary to remedy any
neglect or delay in the execution of the public printing” of the Congress. Id.
§ 12.
In 1860, Congress completely overhauled the public printing system. J. Res.
of June 23, 1860, 36th Cong., 12 Stat. 117. The 36th Congress “ authorized and
directed” the superintendent o f public printing “ to have executed the printing
and binding authorized by the Senate and House of Representatives, the executive
and judicial departments, and the Court of Claims.” Id. § 1, 12 Stat. at 117. More
importantly, the 36th Congress completely abandoned the contract printing system
by creating the GPO.4 Specifically, the 36th Congress granted the superintendent
of public printing sweeping authority to contract for “ the necessary buildings,
machinery, and materials” and to hire all “ hands necessary to execute the orders
of Congress and of the executive and judicial departments, at the city of Wash­
ington.” Id. §§1-2; see also U nited States v. Allison, 91 U.S. 303, 304 (1875)
(“ This resolution dispensed with the public printers appointed by the two Houses
of Congress, and placed the whole subject of public printing in charge of the
superintendent.” ). At that point in time, the GPO was simply conceptualized as
a more expeditious and less partisan alternative to the existing contract system
of public printing. See A pplicability o f Post-Employment Restrictions on Dealing
with Governm ent to Former Em ployees o f the Government Printing Office, 9 Op.
O.L.C. 55, 56-57 (1985).
The 39th Congress tightened the legislative branch’s control over the GPO by
creating the office of “ Congressional printer” and abolishing the position of su­
perintendent of public printing. Act of Feb. 22, 1867, ch. 59, §§1-3, 14 Stat.
398-99. See also Allison, 91 U.S. at 306 (Congressional Printer “ was given the
same powers as the superintendent of public printing” ). Under the terms of the
1867 enactment, the Senate was empowered to “ elect some competent person,
who shall be a practical printer, to take charge of and manage the government
printing office.” Act of Feb. 22, 1867, §1, 14 Stat. at 398. The Congressional
Printer was “ deemed an officer of the Senate,” id. §2, and was directed to “ su­
perintend the execution of all the printing and binding for the respective depart­
ments of the government now required b y la w to be executed at the government
printing office.'' Id. (emphasis added). Thus, the 39th Congress not only declared
that the head of the GPO was its own officer, but also set forth its assumption
that the executive branch was obligated to submit printing and binding projects
to the GPO.
4 C ongress chose to retain the contract system for obtaining 4‘all paper which may be necessary for the execution
o f the public printing[.]” J. Res. o f June 23, 1860, § 7 ,1 2 Stat. at 118.
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Involvement o f the Government Printing Office in Executive Branch Printing and Duplicating
In 1895, Congress consolidated the GPO’s control over public printing but
changed the method for selecting the head of the GPO. Act of Jan. 12, 1895,
ch. 23, 53d Cong., 28 Stat. 601 (“ 1895 Act” ). In section 17 of the 1895 Act,
Congress created the position of Public Printer and prescribed an appointment
process modeled after the Appointments Clause, U.S. Const, art. II, §2, cl. 2:
“ The President of the United States shall nominate and, by and with the advice
and consent of the Senate, appoint a suitable person, who must be a practical
printer and versed in the art of bookbinding, to take charge of and manage the
Government Printing Office.” 1895 Act, § 17, 28 Stat. at 603.5
The 1895 Act extended the exclusive domain of the Public Printer to virtually
all printing operations throughout the entire federal government. Specifically, sec­
tion 87 of the 1895 Act decreed that “ [a]ll printing, binding, and blank books
for the Senate or House of Representatives and for the Executive and Judicial
Departments shall be done at the Government Printing Office, except in cases
otherwise provided by law.” Id. §87, 28 Stat. at 622. Additionally, section 31
of the 1895 Act dictated that “ all printing offices in the Departments now in
operation, or hereafter put in operation, by law, shall be considered a part of
the Government Printing Office, and shall be under the control of the Public
Printer[.]” Id. §31, 28 Stat. at 605. Finally, section 31 stated that “ all persons
employed in said printing offices and binderies [in the Departments] shall be ap­
pointed by the Public Printer, and be carried on his pay roll the same as employees
in the main office, and shall be responsible to him[.]” Id. Thus, in the 1895 Act,
Congress took the position that the GPO controlled virtually all printing and bind­
ing work in all three branches of the federal government.
The 65th Congress used an appropriations bill passed in 1919 to make explicit
what had been implicit in prior public printing legislation: the GPO was subordi­
nated to the Joint Committee on Printing, which effectively controlled the alloca­
tion of the printing and binding work of the executive and judicial branches. See
Act of Mar. 1, 1919, Pub. L. No. 65-314, § 11, 40 Stat. 1213, 1270 (“ 1919 Act” ).
Section 11 of the 1919 Act granted to the Joint Committee on Printing the “ power
to adopt and employ such measures as, in its discretion, may be deemed necessary
to remedy any neglect, delay, duplication, or waste in the public printing and
binding and the distribution of Government publications^]” Id. Moreover, the
1919 Act mandated that “ on and after July 1, 1919, all printing, binding, and
blank-book work for Congress, the Executive Office, the judiciary, and every ex­
ecutive department, independent office, and establishment of the Government,
shall be done at the Government Printing Officef.]” Id. The 65th Congress pro­
vided for only one exception to the rigid rule that all printing must be performed
by the GPO: “ such classes of work as shall be deemed by the Joint Committee
on Printing to be urgent or necessary to have done elsewhere than in the District
5 C/. U.S. Const, art. U, §2, c). 2 (President “ shall nominate, and by and with the Advice and Consent o f the
Senate, shall appoint’* Officers o f the United States).
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of Columbia for the exclusive use of any field service outside of said District.”
Id.
One year after Congress passed the 1919 Act, President Wilson took action
to curtail the expanding role of the Joint Committee on Printing. “ On May 13,
1920, President Wilson vetoed an appropriation Act on the ground that it contained
a proviso that certain documents should not be printed by any executive branch
or officer except with the approval of the Joint Committee on Printing.” Constitu­
tionality o f P roposed Legislation Affecting Tax Refunds, 37 Op. Att’y Gen. 56,
62 (1933) (“ Legislation Affecting Tax Refunds” ). In explaining his decision to
veto the bill, President Wilson offered the following comments:
I regard the provision in question as an invasion of the province
of the Executive and calculated to result in unwarranted interference
in the processes of good government, producing confusion, irrita­
tion, and distrust. The proposal assumes significance as an out­
standing illustration of a growing tendency which I am sure is not
fully realized by the Congress itself and certainly not by the people
of the country.
Id. at 62-63 (quoting veto message of President Wilson). Thus, despite initial
executive branch acquiescence in the involvement of the GPO in the printing work
of executive departments and bureaus, the executive branch promptly objected
to the explicit insertion of the Joint Committee on Printing into executive func­
tions.
In 1949, Congress reaffirmed that “ all printing, binding, and blank-book work”
for the executive and judicial branches had to be done at the GPO unless the
Joint Committee on Printing authorized some other arrangement. Act of July 5,
1949, Pub. L. No. 81-156, 63 Stat. 405, 406. The 81st Congress, however, ex­
pressly exempted the Supreme Court of the United States from this requirement,6
id., thereby effectively minimizing the influence of the legislative branch with
respect to judicial branch printing. The 81 st Congress offered no justification for
treating the printing projects of the executive and judicial branches differently,
but did indicate generally that the legislation was intended “ to modify the law
in order to permit essential Government printing to be produced in the best interest
of the Government.” H.R. Rep. No. 81-841, at 1 (1949), reprinted in 1949 U.S.
Code Cong. Serv. 1515, 1515. Although the 81st Congress conceded “ that obvi­
ous savings of time and expense can be effected by producing much printing with­
in the area where use is required,” approval of such action by the Joint Committee
on Printing remained a prerequisite for all executive branch printing “ within the
area where use is required.” Id.
6 The printing o f the Supreme Court traditionally had been treated in a different manner than executive and legisla­
tive branch printing. See Supreme Court Expenses, 8 Op. A tt’y Gen. 219, 222 (1856).
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Involvement o f the Government Printing Office in Executive Branch Printing and Duplicating
The modem legislative scheme governing public printing was enacted in 1968
by the 90th Congress, which produced an act collecting all of the public printing
provisions in title 44 of the United States Code.7 See Act of Oct. 22, 1968, Pub.
L. No. 90-620, 82 Stat. 1238 (“ 1968 Act” ). The 1968 Act purported “ to restate
in comprehensive form, without substantive change, the statutes in effect on Janu­
ary 14, 1968, relating to public printing and documents[.]” S. Rep. No. 90-1621,
at 1 (1968), reprinted in 1968 U.S.C.C.A.N. at 4438-39. Therefore, the initial
version of title 44 contained the requirement that “ [a]ll printing, binding, and
blank-book work for Congress, the Executive Office, the Judiciary, other than
the Supreme Court of the United States, and every executive department, inde­
pendent office and establishment of the Government, shall be done at the Govern­
ment Printing Office[.]” 1968 Act, §501, 82 Stat. at 1243. Likewise, the two
exceptions to this rule remained in place: (1) “ classes of work the Joint Com­
mittee on Printing considers to be urgent or necessary to have done elsewhere” ;
and (2) “ printing in field printing plants operated by an executive department,
independent office or establishment, and the procurement of printing by an execu­
tive department, independent office or establishment from allotments for contract
field printing, if approved by the Joint Committee on Printing.” Id. In other words,
all executive branch printing had to be performed at the GPO unless the Joint
Committee on Printing authorized some other arrangement.
Once Congress collected and codified all of the public printing provisions in
title 44, few changes in the statutory scheme took place for several decades. In
1990, however, the 101st Congress reinforced the GPO’s monopoly on executive
branch printing with a public printing provision inserted in the Legislative Branch
Appropriations Act, 1991, Pub. L. No. 101-520, 104 Stat. 2254 (1990) (“ 1991
Act” ). Section 206 of the 1991 Act foreclosed the use of federal funds in most
instances to procure printing from any commercial source unless the GPO was
involved in the transaction. Id. §206, 104 Stat. at 2274. The “ printing” subject
to this restriction included “ the process of composition, platemaking, presswork,
binding, and microform, and the end items of such processes.” Id. § 206(c).
Two years later, the 102d Congress used another legislative branch appropria­
tions act to broaden the language of the provision prohibiting public printing by
commercial sources without the involvement of the GPO. See Legislative Branch
Appropriations Act, 1993, Pub. L. No. 102-392, §207, 106 Stat. 1703, 1719—
20 (1992) (“ 1993 Act” ). The 1993 Act expanded the proscription to include the
expenditure of any funds appropriated in any fiscal year for any printing from
any source other than the GPO. Id. §207(a)(l), 106 Stat. at 1719. The 1993 Act
also added “ silk screen processes” to the definition of “ printing,” id. § 207(a)(3),
106 Stat. at 1720, thereby enlarging the scope of the GPO’s exclusive domain.
7 The public printing initiative resulted from congressional concern that “ many laws ha[d] been enacted” affecting
the printing scheme set forth in the 1895 Act, but these laws had not uniformly amended the 1893 Act, “ with
the result that the body o f printing laws ha[d] grown haphazardly.” S. Rep. No. 90-1621, at 1 (1968), reprinted
in 1968 U.S.C.C.A.N. 4438, 4439.
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Opinions o f the Office o f Legal Counsel in Volume 20
Congress’s effort to accord the GPO control over executive branch printing
reached its zenith in 1994 with the passage of the Legislative Branch Appropria­
tions Act, 1995, Pub. L. No. 103-283, 108 Stat. 1423 (1994) (“ 1995 Act” ). Sec­
tion 207(2) of the 1995 Act expanded the definition of “ printing” subject to GPO
control to include “ duplicating.” Id. §207(2), 108 Stat. at 1440. Thus, the prin­
cipal statutory provision restricting executive branch printing,8 which is codified
at 44 U.S.C. §501 note currently reads as follows:
(1) None of the funds appropriated for any fiscal year may be
obligated or expended by any entity of the executive branch for
the procurement of any printing related to the production of Gov­
ernment publications (including printed forms), unless such pro­
curement is by or through the Government Printing Office.
(2) Paragraph (1) does not apply to (A) individual printing orders
costing not more than $1,000, if the work is not of a continuing
or repetitive nature, and, as certified by the Public Printer, if the
work is included in a class of work which cannot be provided more
economically through the Government Printing Office, (B) printing
for the Central Intelligence Agency, the Defense Intelligence Agen­
cy, or the National Security Agency, or (C) printing from other
sources that is specifically authorized by law.
(3) As used in this section, the term “ printing” includes the proc­
esses of composition, platemaking, presswork, duplicating, silk
screen processes, binding, microform, and the end items of such
processes.
Although President Clinton approved the 1995 Act, he issued a signing state­
ment that expressed serious concerns about the ever-increasing “ involvement of
the Public Printer and the Government Printing Office in executive branch printing
related to the production of Government publications.” Statement by President
William J. Clinton Upon Signing the Legislative Branch Appropriations Act of
1995, H.R. 4454, 1 Pub. Papers o f William J. Clinton 1301, 1301 (July 22, 1994).
Specifically, the President’s statement framed the constitutional issues this way:
The Act raises serious constitutional concerns by requiring that
executive branch agencies receive a certification from the Public
Printer before procuring the production of certain Government doc-
8 C hapter 11 o f title 44, U nited States C o d e, contains a host o f statutory provisions dealing with the general
subject o f executive and judicial branch printing. See 44 U.S.C. §§1101-1123. Those statutes, however, focus pri­
marily upon the logistical concerns of the Public Printer in responding to printing orders from the executive and
judicial branches.
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Involvement o f the Government Printing Office in Executive Branch Printing and Duplicating
uments outside of the Government Printing Office. In addition, the
Act expands the types of material that are to be produced by the
Government Printing Office beyond that commonly recognized as
“ printing.”
Id. To ameliorate the perceived constitutional defects in 44 U.S.C. §501 note,
the President chose to interpret the amendments to the public printing provision
narrowly. See, e.g., Communications Workers v. Beck, 487 U.S. 735, 762 (1988)
(“ federal statutes are to be construed so as to avoid serious doubts as to their
constitutionality” ). First, the President expressed his intention to restrict “ the ex­
clusive authority of the Government Printing Office” over executive branch print­
ing “ to procurement of documents intended primarily for distribution to and use
by the general public.” Statement by President William J. Clinton, 1 Pub. Papers
of William J. Clinton at 1301. Second, the President interpreted the concept of
“ duplicating” to “ encompass only the reproduction inherent in traditional printing
processes, such as composition and presswork, and not reproduced by other means,
such as laser printers or photocopying machines.” Id.
The legislative branch did not accept President Clinton’s narrowing construction
of 44 U.S.C. § 501 note. In response to an inquiry from Senator Wendell H. Ford,
the Chairman of the Joint Committee on Printing, the Comptroller General issued
an opinion concluding that, in virtually all instances, “ executive agencies pro­
curing duplicating services involving the use of high-speed duplicating equipment
must do so through the GPO[.]” B-251481.4, 1994 WL 612291, at *3 (C.G. Sept.
30, 1994). Thus, the interpretations of 44 U.S.C. §501 note espoused by the exec­
utive branch and the legislative branch are in direct conflict. Faced with these
divergent views, you asked us for “ an interpretation of the proper construction
of title 44 of the U.S. Code.” We conclude that, to the extent that 44 U.S.C.
§§501 & 501 note require all executive branch printing and duplicating to be
procured by or through the GPO, those statutes violate constitutional principles
of separation of powers and that executive branch departments and agencies are
not obligated to procure printing by or through the GPO.
U
The constitutional doctrine of separation of powers prohibits Congress from per­
forming functions that are not legislative or in aid of the legislative process. Ex­
cept through the passage of legislation, Congress may not seek to control the
performance of functions that are “ beyond the legislative sphere.” See Bowsher
v. Synar, 478 U.S. 714, 733-34 (1986); see also M etropolitan Washington A irports
Auth. v. Citizens fo r the Abatement o f A ircraft Noise, 501 U.S. 252, 274 (1991)
(“ M W AA") (separation of powers doctrine is directed at “ forestall[ing] the danger
of encroachment ‘beyond the legislative sphere’ ” ); INS v. Chadha, 462 U.S. 919
221
Opinions o f the Office o f Legal Counsel in Volume 20
(1983); H echinger v. Metropolitan Washington A irports Auth., 36 F.3d 97 (D.C.
Cir. 1994), cert, denied, 513 U.S. 1126 (1995); FEC v. NRA Political Victory
Fund, 6 F.3d 821 (D.C. Cir. 1993), cert, dism issed, 513 U.S. 88 (1994); cf. Buck­
ley v. Valeo, 424 U.S. 1, 137-41 (1976) (per curiam).
In B ow sher, for example, the Supreme Court held that Congress violated the
doctrine of separation of powers by vesting non-legislative functions in an official
who was subject to Congress’s control. Bowsher involved the Balanced Budget
and Emergency Deficit Control Act of 1985. That statute established maximum
federal budget deficits for each of the succeeding five years. If the projected deficit
for any year exceeded the statutory maximum, the Comptroller General was to
specify for the President spending reductions necessary to bring the deficit under
the designated ceiling. The President was then required to issue a sequestration
order effectuating the Comptroller General’s cuts. 478 U.S. at 717-18. The Comp­
troller General is appointed by the President from a list of nominees submitted
by the Congress and “ is removable only at the initiative of Congress.” Id. at
728 (Comptroller General may be removed by joint resolution of Congress finding
one of five statutorily enumerated causes).
The Court characterized the Act as giving the Comptroller General executive
functions, id. at 733, but did not hold that the Comptroller General is an agent
of Congress. If it had, the Court’s holding would have been the unremarkable
observation that Congress may not vest itself or one of its agents with executive
authority. The Act, however, did not give Congress any formal authority to vote
on or dictate any particular of how the Comptroller General would exercise the
executive functions that the Act conferred upon him. In other words, Congress
had no formal power over the exercise of the Comptroller General’s executive
functions. Nevertheless, the Court viewed the removal power as giving Congress
the ability to coerce the Comptroller General to conform to the “ legislative will.”
See id. at 729.9
Thus, the constitutional doctrine of separation of powers forbids Congress from
vesting non-legislative functions — specifically, in the case of your inquiry, execu­
tive functions — in the GPO if Congress retains control over the GPO. First, we
will examine the extent to which Congress controls the GPO. Then, we will deter­
mine whether the functions that the GPO performs may be characterized as falling
within the legislative sphere.
9 The G PO argues that Bowsher only prohibits vesting executive functions in officials over whom Congress holds
the pow er o f removal. Letter for Walter D ellinger, Assistant Attorney General, Office o f Legal Counsel, from An­
thony J. Zagam i, G eneral Counsel, United States Government Printing O ffice at 1 (Sept. 22, 1994). W e agree that
the President may remove the public printer at will. Further, we agree that non-legislative functions may not be
vested in an official who is removable by Congress. Nevertheless, we cannot read Bowsher as applying exclusively
to those officials who are removable by Congress. The Supreme Court could not have been clearer in holding that
the C onstitution prohibits Congress from retaining any sort o f control that allows it to exert its ' ‘legislative w ill”
outside the legislative sphere. See , eg., 478 U.S. at 729-32 (discussing significance of C ongress's view that the
C om ptroller G eneral is within the legislative branch).
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Involvement o f the Government Printing Office in Executive Branch Printing and Duplicating
A. C ongressional C ontrol o f the GPO
One significant indication of control is whether Congress perceives an agency
or official as its agent or as an entity of the legislative branch. See Bowsher,
478 U.S. at 731-32. The GPO, since its inception, has been conceptualized as
a congressional entity.10 See Allison, 91 U.S. at 307 (head of GPO “ is more re­
sponsible to Congress than to any other authority” ). “ Discussion of the GPO’s
role in government, both in Congress and by GPO officials themselves, has con­
sistently indicated that ‘the Joint Committee on Printing . . . constitute[s], in fact,
a board of directors’ for the GPO, and that the GPO ‘is, and was, designed to
be primarily under the control of Congress.’ ” International Graphics, Div. o f
M oore Business Forms, Inc. v. United States, 4 Cl. Ct. 186, 197 (1983). Moreover,
the Comptroller General has consistently concluded that the GPO “ is under the
legislative branch of the Government.” 11 36 Comp. Gen. 163, 165 (1956); 29
Comp. Gen. 388, 390 (1950). In addition, the Courts have taken the same view.
See, e.g., Thompson v. Sawyer, 678 F.2d 257, 264 (D.C. Cir. 1982) (GPO “ is
a unit of the legislative branch” ); accord Lew is v. Sawyer, 698 F.2d 1261, 1262
n.2 (D.C. Cir. 1983) (Wald, J., concurring) (GPO is “ a legislative unit performing
a support function for Congress” ); International Graphics, 4 Cl. Ct. at 197 (“ GPO
appears to be a unit of the legislative branch” ).
The Supreme Court has also noted that an official is subservient to the branch
of government that has the authority to control and supervise the conduct of that
official’s functions. See Bowsher, 478 U.S. at 730. On this score, both the Public
Printer and the GPO are beholden to Congress in several significant respects. As
we have previously explained:
The Congressional Joint Committee on Printing (“ JCP” ) retains
supervisory control over a host of GPO’s functions. See, e.g., 44
U.S.C. § 103 (power to remedy neglect, delay, duplication, and
waste); id. §305 (approval of GPO employees’ pay); id. §309 (re­
volving fund available for expenses authorized in writing by the
JCP); id. §312 (requisitioning of materials and machinery with ap­
10 Indeed, in 1867, Congress expressly declared lhal the GPO was to be run by the Congressional Printer, who
was elected by the Senate and “ deemed an officer o f the Senate.” Act o f Feb. 22, 1867, ch. 59, § § 1 -2 , 39th
Cong., 14 Stat. 398-99. The m ajor public printing reform o f 1895 gave rise to the position o f Public Printer and
prescribed a new method for selecting this head o f the GPO — nomination by the President and appointment “ by
and with the advice and consent o f the Senate.” 1895 Act, §17, 28 Stat. at 603. This selection system, however,
did not necessarily transform the Public Printer into an officer o f the executive branch. See Bowsher, 478 U.S.
at 758 n.25 (Stevens, J., concurring) (identifying Public Printer as "obvious congressional ag en tf]” despite appoint­
ment by President); cf. also Mistretta v. United Stales, 488 U.S. 361, 408-11 (1989) (members o f Sentencing Com ­
mission injudicial branch appointed and subject to removal by President). In any event, while the 1895 modification
o f the appointment process may have reduced the direct control o f Congress over the GPO, the 1919 Act firmly
established the preeminence o f the JC P — composed o f members o f C ongress— in matters o f public printing. See
1919 Act, § 1 1 ,4 0 Stat. at 1270.
11 In ascribing to Congress the views o f the Comptroller General, we are fortified by the Supreme Court’s decision
in Bowsher, which held that Congress controls the Comptroller General. See 478 U.S. at 727-32.
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proval of the JCP); id. §313 (examining board consisting of GPO
personnel and a person designated by the JCP); id. § 502 (approval
of contract work); id. § 505 (regulation of sale of duplicate plates);
id. §§509-517 (approval of paper contracts); id. §1914 (approval
of measures taken by the Public Printer to implement the depository
library program)[.]
A pplicability o f Post-Em ployment Restrictions on Dealing with Government to
Form er E m ployees o f the Governm ent Printing Office, 9 Op. O.L.C. at 57 (foot­
note omitted). What we deduced in 1985 is equally accurate today: “ This relation­
ship to Congress appears to preclude a conclusion, either in fact or as a constitu­
tional matter, that the GPO is not an arm of Congress.” Id. (citation omitted).
Given the level of control over the GPO that Congress exercises today through
the JCP,12 as well as the history of the relationship between the GPO and Con­
gress, we believe that the GPO is subject to the sort of control that Congress
may not exercise over an actor that performs non-legislative functions.13 We now
turn to consider whether the GPO’s functions fall outside the legislative sphere.
B. The N ature o f G P O ’s Functions
Section 501 of title 44, United States Code, establishes that “ [a]ll printing, bind­
ing, and blank-book work for Congress, the Executive Office, the Judiciary, other
than the Supreme Court of the United States, and every executive department,
independent office and establishment of the Government, shall be done at the
Government Printing Office[.]” 14 Subsection (1) of 44 U.S.C. §501 note bolsters
the provision granting the GPO exclusive control of virtually all the printing work
of the executive branch: “ None of the funds appropriated for any fiscal year may
be obligated or expended by any entity of the executive branch for the procure­
ment of any printing related to the production of Government publications (includ­
ing printed forms), unless such procurement is by or through the Government
Printing Office.” 15 “ Printing” is defined in subsection (3) of 44 U.S.C. §501
l2The JCP, which “ c o n sists] of the chairm an and four members o f the Committee on Rules and Administration
o f the Senate and the chairm an and four members o f the Committee on House Administration of the House of
Representatives!,}” 44 U.S.C. § 101, is undeniably a congressional entity.
13 W e need not determ ine whether C ongress has ever actually sought to exert the control that it, by statute, has
retained. The mere existence o f this ability to control the GPO raises the separation o f powers bar against vesting
the GPO with non-legislative functions. See Bowsher, 478 U.S. at 730 (dismissing as beside the point Justice W hite’s
vigorous argument that *‘[r]ealistic consideration o f the nature o f the Comptroller G eneral’s relation to Congress
. . . reveals that the threat to separation o f powers . . . is wholly chim erical.” Id. at 774 (White, J., dissenting)).
14 Section 501 contains tw o exceptions to this sweeping rule; both of the exceptions require the approval o f the
JCP. 44 U.S.C. §§501(1) & 501(2), In 1984, we declared the JC P approval provisions unconstitutional with respect
to operations outside the legislative branch. Memorandum for William H. Taft, IV, Deputy Secretary o f Defense,
from 'Dieodore B. Olson, Assistant Attorney General, Office o f Legal Counsel, Re: Effect o f INS v. Chadha on
44 U.S.C. §501, “Public Printing and Documents” at 3 -6 & n.5 (Mar. 2, 1984); Constitutionality o f Proposed
Regulations o f Joint Committee on Printing, 8 Op. O.L.C. 42, 51 & n. 14 (1984).
13 Subsection (2) o f 44 U.S.C. §501 note sets forth three exceptions to this sweeping prohibition. These exceptions
include printing for the C entral Intelligence Agency, the Defense Intelligence Agency, and the National Security
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Involvement o f the Government Printing Office in Executive Branch Printing and Duplicating
note to include “ the processes of composition, platemaking, presswork, dupli­
cating, silk screen processes, binding, microform, and the end items of such proc­
esses.” By enacting these statutory provisions, Congress has forbidden the execu­
tive branch to expend funds on printing that is not procured by or through the
GPO.
Congress may create and empower an entity such as the GPO to provide printing
in aid of its legislative function. Cf. Chadha, 462 U.S. at 956 n.21 (recognizing
authority of each House of Congress “ to act alone in determining specified inter­
nal matters” ). However, when Congress dictates that all executive branch printing
and duplicating must be procured by or through the GPO, see 44 U.S.C. §§501
& 501 note the GPO necessarily acts outside the legislative sphere.
The GPO implicitly concedes — as it must— that its involvement in executive
branch printing is beyond the legislative sphere, but asserts that such action does
not violate separation of powers principles because its duties with regard to execu­
tive branch printing “ are essentially ministerial and mechanical so that their per­
formance does not constitute ‘execution of the law’ in a meaningful sense.” B ow ­
sher, 478 U.S. at 732. We doubt that the doctrine of separation of powers permits
Congress to control functions outside the legislative sphere as long as such aggran­
dizement is in some sense de minimis. We need not resolve that issue here, how­
ever, because the experience of executive branch agencies under recent amend­
ments to 44 U.S.C. §501 note belies the GPO’s characterization of its authority.
Under the current public printing regime, the GPO is obligated to “ execute
such printing and binding for the President as he may order and make requisition
for.” 44 U.S.C. § 1101. Nevertheless, the GPO controls the timing 16 and the pro­
duction of all printing work for the executive branch. 44 U.S.C. §§501 & 501
note. The Public Printer also determines “ the form and style in which the printing
or binding ordered by a department is executed, and the material and the size
of type used[.]” 44 U.S.C. §1105. Moreover, any executive branch officer in
possession of printing equipment “ no longer required or authorized for his serv­
ice” must “ submit a detailed report of them to the Public Printer.” 44 U.S.C.
§312. The Public Printer possesses the statutory authority to “ requisition such
articles,” which must then “ be promptly delivered” to the GPO.17 Id. In sum,
Agency, as well as all printing for other sources that is specifically authorized by law. In addition, subsection (2)
creates an exception for small printing orders. The exception for small printing orders, which requires the certification
o f the Public Printer, is discussed in section UI(B) o f this opinion.
l6The United States Court o f Appeals for the District o f Columbia Circuit has held that a congressionally controlled
entity may not be given authority to delay an executive function. See Hechirtger v. Metropolitan Washington Airports
Auth., 36 F.3d 97 (D.C. Cir. 1994), cert. denied, 513 U.S. 1126 (1995).
17 The GPO and JCP have used this authority to strip executive branch agencies o f their ability to engage in
printing and duplicating. The experience o f the Department o f Veterans Affairs regional office in Philadelphia, Penn*
sylvania is illustrative. On March 26, 1993, the JC P advised the Secretary of Veterans Affairs that the regional
office “ ha[d] acquired a two color printing press and [was] conducting printing activities w ithout the concurrence
of this Committee.” Letter for Honorable Jesse Brown, Secretary o f Veterans A ffairs, from Honorable W endell
H. Ford, Chairman, Joint Committee on Printing (Mar. 26, 1993). The JCP instructed the Secretary of Veterans
Affairs to 4‘review this matter and take immediate action to transfer all printing requirements to the nearest Govern-
Continued
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what began as a cooperative arrangement in 1860 that was mutually beneficial
to the executive and legislative branches has become a system by which Con­
gress— acting primarily through the GPO and the JCP— maintains an ever-in­
creasing degree of control over executive branch printing. Because the GPO is
subject to congressional control and because the GPO performs executive func­
tions, we conclude that the language in 44 U.S.C. §§501 & 501 note requiring
the executive branch to procure all of its printing by or through the GPO is uncon­
stitutional and, therefore, inoperative.
C. Certification
You have also directed our attention to a provision of 44 U.S.C. §501 note
that you regard as inconsistent with Chadha. Specifically, subsection (2) of 44
U.S.C. §501 note excludes from the class of printing work subject to GPO control
“ individual printing orders costing not more than $1,000, if the work is not of
a continuing or repetitive nature, and, as certified by the Public Printer, if the
work is included in a class of work which cannot be provided more economically
through the Government Printing Office[.]” Whether this provision involving dis­
cretionary certification by the Public Printer is understood as the exercise of legis­
lative power or executive power, it plainly runs afoul of separation of powers
principles. “ If the power is executive, the Constitution does not permit an agent
of Congress to exercise it. If the power is legislative, Congress must exercise
it in conformity with the bicameralism and presentment requirements of Art. I,
§ 7 ” of the Constitution. MWAA, 501 U.S. at 276. As we have previously ex­
plained in the context of a public printing dispute, any statute that permits a con­
gressional agent “ to effect an exception to a legislated rule” is unconstitutional.
See Memorandum for William H. Taft, IV, Deputy Secretary of Defense, from
Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Ef­
fe c t o f INS v. Chadha on 44 U.S.C. § 5 0 1 , "Public Printing and Documents”
at 5 n.5 (Mar. 2, 1984).
Although we have found a fatal constitutional defect in the statutory provision
granting the Public Printer the authority to except certain small printing orders
from the control of the GPO, we need not engage in a protracted discussion of
m ent Printing O ffice Regional Procurement O ffice and com ply with section 312, 44 U.S.C. for disposition of this
unauthorized equipm ent.” Id. Ten months later. Senator W endell Ford wrote to the Department of Veterans Affairs
in his capacity as Chairman o f the JCP to express dissatisfaction with the Department’s response. Senator Ford
dem anded executive branch compliance with th e desires o f the JCP:
I ask that your Inspector General readdress these issues and that the Headquarters printing management
organization be involved to facilitate the orderly transfer o f work to GPO . 1 have asked the Public Printer
to have his staff contact appropriate departmental officials to expedite this process. At your earliest conven­
ience, please provide the Joint Committee with a listing o f all printing and duplicating equipment, including
its age, condition and cost, now on site at [the regional office in Philadelphia]. Please immediately remove
the tw o color press and any similar equipm ent from this site in accordance with the provisions o f section
312, 44 USC.
L etter for Honorable Jesse Brown, Secretary o f Veterans Affairs, from Honorable Wendell H. Ford, Chairman, Joint
Com m ittee on Printing at 1 (Jan. 13, 1994).
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the effect of this conclusion upon the balance of subsection (2) of 44 U.S.C. §501
note. Subsection (2) simply creates an exception to the broad rule of 44 U.S.C.
§§501 and 501 note, that all executive branch printing must be procured by or
through the GPO. Because we have already determined that this requirement runs
afoul of separation of powers principles, there is no reason to address the scope
of the remaining exceptions to the general requirement.
Ill
It appears that the Comptroller General does not share our view regarding the
constitutionality of the GPO’s control over executive branch printing. See, e.g.,
Opinion for Senator Wendell H. Ford, Chairman of the Joint Committee on Print­
ing, B-251481.4, 1994 WL 612291 (C.G. Sept. 30, 1994).>s You have asked
whether contracting officers who act in a manner consistent with our opinion and
in derogation of the Comptroller General’s view will be subject to liability or
sanction.
This opinion presents the official view of the executive branch; the Comptroller
General’s opinion may not carry legally binding effect, although it may be consid­
ered for whatever persuasive value it may offer. See Bowsher, 478 U.S. at 733
(holding that statute unconstitutionally entrusted execution of laws to Comptroller
General, a unit of the legislative branch, because “ [interpreting a law enacted
by Congress to implement the legislative mandate is the very essence of ‘execu­
tion’ of the law” ); see also Buckley, 424 U.S. at 137-41 (holding that officials
whom Congress controls cannot participate in the issuance of advisory opinions
that have legally binding effect outside the legislative branch). We further note
that neither the Comptroller General nor the Inspectors General may initiate pros­
ecutions on their own. Inspector General Act of 1978, 5 U.S.C. app.; United States
v. Nixon, 418 U.S. 683, 693 (1974). Both the Comptroller General and the Inspec­
tors General have the statutory authority to audit and disallow costs, see 31 U.S.C.
§§3522-3530; 5 U.S.C. app. § 4(a)(1), (b), but these powers cannot be stretched
so as effectively to encompass prosecutorial decisions.
With respect to the Comptroller General, the Supreme Court has held that the
Constitution does not permit the Comptroller General to exercise authority with
respect to executive functions. Bowsher, 478 U.S. at 721-27. Although the Comp­
troller General may audit expenditures and in the course of doing so may express
an opinion as to the propriety of costs incurred, the Comptroller General may
not in any legally consequential sense “ disallow” an expenditure or cost. Any
statute purporting to give the Comptroller General such authority is invalid. See,
e.g., H echinger v. Metropolitan Washington Airports Auth., 36 F.3d 97 (D.C. Cir.
18 Separate statutory provisions vest in the Comptroller General the authority to relieve accountable officials and
certifying officials o f such liability. See 31 U.S.C. §§3527-3529. We have determined, however, that this grant
o f authority to a congressional agent violates separation o f powers principles. See Comptroller General’s Authority
To Relieve Disbursing and Certifying Officials From Liability, 15 Op. O.L.C. 80 (1991).
\ 227
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1994), cert, denied, 513 U.S. 1126 (1995); C om ptroller General’s Authority To
R elieve D isbursing and Certifying Officials From Liability, 15 Op. O.L.C. 80
(1991). Insofar as this position is not free of litigation risk, see Lear Siegler,
Inc., E nergy Prods. D iv. v. Lehman, 842 F.2d 1102 (9th Cir. 1988), modified
as to attorney fe e s, 893 F.2d 205 (9th Cir. 1989) (en banc); Ameron Inc. v. United
States A rm y C orps o f Engineers , 809 F.2d 979 (3d Cir. 1986), cert, granted, 485
U.S. 958 (1988), cert, dismissed, 488 U.S. 918 (1988),19 you have asked us wheth­
er there are additional specific measures that agencies may take to safeguard con­
tracting officers.
It appears that, except for qui tam suits (which are discussed below), the only
entity that could bring a civil or criminal action against a certifying official in
court would be the executive branch, and more specifically the Department of
Justice. Any actions considered by the Department of Justice would necessarily
be in accord with the constitutional views expressed by the President in his signing
statement and the opinions of this Office. Consequently, we see little risk to an
officer who acts consistently with our interpretation.
Administrative liability poses separate issues, but ones that we believe may be
allayed by GSA itself. Congress has attempted to provide an enforcement mecha­
nism for the Anti-Deficiency Act, 31 U.S.C. § 1341(a), and other restrictions on
appropriations by holding certain executive branch employees personally liable
for amounts illegally authorized or disbursed. For example, 31 U.S.C. § 3528(a)
provides that a certifying official is responsible for the legality of the proposed
payment on a voucher and for repaying any payments that are illegal, improper,
or prohibited by law. The Comptroller General uses the GAO’s audit powers to
determine what amounts are wrongfully spent or unallowable, and 31 U.S.C.
§ 3526(a) grants the Comptroller General the power to “ settle all accounts of the
United States Government and supervise the recovery of all debts finally certified
by the Comptroller General as due the Government.”
For funds determined to be illegally expended, the government may attempt
to collect that debt pursuant to the Federal Claims Collection Act of 1966. Section
3716 of title 31, United States Code, and various regulations provide for adminis­
trative offset to collect claims due the United States, following notice of the pro­
spective offset. 4 C.F.R. pts. 101-105 (1996); 41 C.F.R. §§ 105-55.001 to 105—
56.013 (1995).20 When a current employee owes the debt, the agency may attempt
to collect it through administrative offset. 41 C.F.R. § 105-56.001.
Thus, the danger for the certifying officials is that the Comptroller General will
determine that a given payment is illegal and that the certifying official is adminis­
19 The Department o f Justice has consistently taken the position that these lower court cases were wrongly decided
and are inconsistent with the Supreme C o u rt’s decision in Bowsher. We continue to adhere to this view and will
assert this position if an appropriate case arises. See Brief o f United States at 30-33, Hechinger v. Metropolitan
Washington Airports Auth., 36 F.3d 97 (D.C. Cir. 1994) ( No. 94-7036).
20 Federal regulations authorize the GSA to collect, compromise, or terminate collection efforts on debts owed
the United States arising from activities under G SA ’s jurisdiction. All the contracts at issue— whether GSA is paying
for services, o r collecting for services rendered— arise under G SA ’s jurisdiction. See, e.g., 41 C.F.R. pt. 105-55.
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Involvement o f the Government Printing Office in Executive Branch Printing and Duplicating
tratively liable for these expenditures. The statutory structure appears to be de­
signed to enforce collection of claims or debts owed to the United States. Section
3711(a) of title 31, United States Code, provides that the head of an executive
agency shall try to collect a claim of the United States Government for money
or property arising out of the activities of the agency.
The statute also, however, allows the agencies to compromise claims of less
than $100,000, and, pursuant to the GSA’s regulations, GSA may decline to col­
lect on a claim when it determines that the claim is legally meritless. 41 C.F.R.
§ 105-55.008(b); see also 4 C.F.R. § 104.3(d) (joint DOJ and GAO regulations
providing for termination of legally meritless claims).21 GSA could thus offer reas­
surances to its officers and the agencies contracting with it that any debts found
by the Comptroller General to be owed by GSA or other agency officers as a
result of payments made on the contracts at issue would be legally without merit.
GSA could further assure its employees and the employees of agencies contracting
with it for routine photocopying services that it would not seek to recoup such
amounts through administrative offset. Although GSA has government-wide au­
thority to collect claims owed the United States through administrative offset,
other agencies could offer reassurances to their employees that they would not
seek in any way to collect as claims owed the United States amounts determined
to fall outside the scope of section 207(a)(1), notwithstanding any contrary deter­
mination on the part of the Comptroller General.
Assuming that GSA did not make such a determination in advance, it still could
shield executive branch employees from administrative liability on a case-by-case
basis. Following a determination by the Comptroller General that a certifying offi­
cer owed a debt to the United States, the burden would be on GSA to issue the
notice to the employee of the determination that part of his or her salary was
to be offset. If it failed to issue the notice of debt, notwithstanding a Comptroller
General directive that it do so, the Comptroller General would seem to have no
recourse, other than to notify Congress of the dispute. Congress’s possible actions
would be general ones, against the GSA itself, and not against the particular em­
ployee.
Even if GSA did perform the offset, it would remain possible, consistent with
the regulation, to relieve the contracting official of liability. GSA has the authority
promptly to refund an amount already offset when a debt is waived or otherwise
found not owing the United States, or when GSA is directed by an administrative
or judicial order to refund amounts deducted from the employee’s current pay.
41 C.F.R. § 105-56.012. The regulations do not state who may make such a find­
ing. A finding by the Department of Justice or GSA superiors that no debt was
21 The regulations also provide that waivers o f liability for government employees, if authorized by law, may
be requested from the General Accounting Office. 41 C.F.R. §§ 105-56.004{g), 105-56.005(b). It is unlikely, how ­
ever, that G A O would authorize a waiver if it determined that payments for the copier rentals would violate section
207.
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Opinions o f the Office o f Legal Counsel in Volume 20
owing and that a refund should be made would relieve the officer of individual
liability.
The only remaining theoretical risk of exposure would arise from qui tam suits
under the False Claims Act, 31 U.S.C. §§3729-3733. Such suits would almost
assuredly fail, however, because such actions should either be defeated pursuant
to a motion to dismiss or on the merits. In brief, in order to state a claim under
31 U.S.C. §3729, a plaintiff must demonstrate that someone knowingly submitted
or caused to be submitted a false or fraudulent claim to the government.22 If
an official simply authorizes payment on a contract lawfully entered into, it is
difficult to envision how liability could lie under the False Claims Act. Although,
in some situations, False Claims Act cases may be brought against government
officials in their personal capacity, the circumstances at issue here do not appear
to give rise to such claims. Even if the officer is required to certify that he or
she understands that the claim is being paid in accordance with law, such a certifi­
cation presumably would not be determined to be a false statement, with respect
either to rental contracts or photocopying contracts, given this Office’s determina­
tion that payment of the contracts would be in accord with the law. The contract
would have been clearly authorized at the time it was signed (pursuant to a clear
executive branch interpretation of the law), the agency would have authorized
all the relevant actions (including payment), and the contractor would have ful­
filled its obligations under the contract. Thus, there would be no false statement
and the intent element — knowingly submitting a false statement— would also be
absent.
Even if a matter were filed against an individual certifying officer, the Depart­
ment of Justice would have the authority to represent the officer. 28 C.F.R. §50.15
(1995). The Department is authorized to undertake such representation when “ the
actions for which representation is requested reasonably appear to have been per­
formed within the scope of the employee’s employment and the Attorney General
22 Section 3729(a) establishes liability for
Any person w h o —
(1) know ingly presents, or causes to be presented, to an officer or employee of the United States Govern­
ment o r a m ember o f the Armed Forces o f the U nited States a false or fraudulent claim for payment
o r approval;
(2) know ingly makes, uses, o r causes to b e made o r used, a false record or statement to get a false or
fraudulent claim paid o r approved by the G overnment;
(3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid;
(4) has possession, custody, o r control o f property o r money used, o r to be used, by the Government
and, intending to defraud the Government o r willfully to conceal the property, delivers, or causes to be
delivered, less property than the amount fo r which the person receives a certificate or receipt;
(5) authorized to make or deliver a docum ent certifying receipt o f property used, or to be used, by the
Governm ent and, intending to defraud th e Government, makes or delivers the receipt without completely
know ing that the information on the receipt is true;
(6) know ingly buys, o r receives as a p ledge o f an obligation o r debt, public property from an officer
o r em ployee o f the G overnment, or a m em ber o f the A rm ed Forces, who lawfully may not sell or pledge
the property; or
(7) know ingly makes, uses, o r causes to be made o r used, a false record or statement to conceal, avoid,
o r decrease an obligation to pay or transmit money or property to the Government.
230
Involvement o f the Government Printing Office in Executive Branch Printing and Duplicating
or his designee determines that providing representation would otherwise be in
the interest of the United States.” Id. at §50.15(a). Those circumstances would
seem to be present here, although the Civil Division would make the determination
regarding representation, whether by the Department or by outside counsel.23
For the foregoing reasons, we believe that any agency officials involved in the
decision to certify or disburse money pursuant to the three types of contracts dis­
cussed herein face little or no litigation risk arising from the decision to certify
or disburse.
IV
To the extent that 44 U.S.C. §§501 and 501 note require all executive branch
printing and duplicating to be procured by or through the GPO, those statutes
violate constitutional principles of separation of powers. We further find that the
provision in subsection (2) of 44 U.S.C. §501 note authorizing the Public Printer
to certify exceptions to the general rule of printing by or through the GPO is
unconstitutional, but we need not ascertain the implications of that determination
given our conclusion that executive branch departments and agencies are not obli­
gated to procure printing by or through the GPO. Finally, we perceive little or
no risk of liability or sanction to contracting officers who act consistently with
this opinion.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
23 It should also be noted that, under the False Claims Act, the United States has significant control over suits
filed under that Act alleging that the contracting officer somehow submitted a false statement in order to get a
claim allowed o r paid. As a procedural matter, the United States has the opportunity to intervene in a False Claims
A ct action filed by a relator and may, following intervention, move to dismiss. If the relator objects, however,
it has the opportunity to have its objections heard. 31 U.S.C. § 3730(c)(2)(A).
231