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.