Constitutionality of Proposed Regulations

of Joint Committee on Printing

Proposed regulations issued by the Joint Committee on Printing, which purport to regulate a 

broad array o f printing activities o f the Executive Branch, are not authorized by statute.

The proposed regulations are unconstitutional on tw o grounds. First, because members of the 

Joint Committee on Printing are not appointed in accordance with the Appointments Clause, 

art. n , § 2, cl.2 o f the Constitution, they may not perform Executive functions, such as 

rulemaking, which may be performed only by properly appointed Officers of the United 

States. Second, the delegation of legislative power to the Joint Committee on Printing violates 

the constitutional requirements for legislative action, bicameral passage and presentment to 

the President.

April 11, 1984

M e m o r a n d u m O p i n i o n f o r t h e C o u n s e l t o t h e D i r e c t o r ,

O f f ic e o f M a n a g e m e n t a n d B u d g e t

This responds to your request for our opinion on the constitutionality, in 

light of the Supreme Court’s decisions in Buckley v. Valeo, 424 U.S. 1 (1976), 

and 1N S \. Chadha, 462U.S.919(1983),of the proposed regulations published 

by the Joint Committee on Printing on November 11, 1983. For the reasons 

discussed below, we conclude that the regulations are statutorily unsupported 

and constitutionally impermissible.

The proposed regulations would effect a significant departure from the 

historical role of the Joint Committee on Printing (JCP).1 Specifically, they 

would redefine “printing” to encompass virtually all processes by which legible material is created or stored, thus increasing the number of activities 

purportedly subject to JCP oversight and control. These activities include, 

among others, planning and design of government publications (defined to 

mean any textual material reproduced for distribution to government departments or to the public), word processing, data storage and document retrieval, 

apparently subsuming the operation of every copying facility of a department. 

The proposed regulations would require executive departments to submit annual plans outlining their intended activities and to seek advance approval of 

all projected goals, policies, strategies, purchases, publications, and means of 

distribution. In addition, departments would be asked to submit plans for a

1 This is not to say that the current role of the JCP necessarily enjoys statutory authority or constitutional 

sanction. We have not attempted to evaluate those issues in this memorandum.

42
second and third year, seeking JCP approval of all projections relating to the 

expanded concept of printing. These obligations would “provide the committee 

with a broader and better overview of all of the Federal Government’s printing 

and publishing activities.” 129 Cong. Rec. 32286 (1983) (remarks of JCP 

Chairman Hawkins). The revised regulations, governing storage, duplication 

and distribution of information, “seek to replace JCP micro-management procedures with oversight and policymaking functions.” Id.

The JCP is composed of the Chairman and two members of the Committee 

on Rules and Administration of the Senate and the Chairman and two members 

of the Committee on House Administration of the House of Representatives. 44 

U.S.C. § 101. Vacancies are filled by the President of the Senate and the 

Speaker of the House of Representatives. Id. § 102. The authorized functions 

of the JCP are specified in various provisions of 44 U.S.C.

This memorandum will address, in turn, the three major legal issues suggested by these regulations: (1) whether there is statutory authority for the 

proposed regulations, (2) whether the regulations would involve congressional 

performance of executive functions, and (3) whether a joint committee of 

Congress is seeking to exercise legislative power. We conclude that the proposed regulations fail on all three grounds.2

I. Statutory Authority

The first issue we address is the statutory basis for promulgation of these 

“legislative” rules. The Printing and Documents statute, 44 U.S.C., contains 

three sections upon which the JCP relies for its “regulatory” authority. The first 

is 44 U.S.C. § 103, which allows the JCP to “use any measures it considers 

necessary to remedy neglect, delay, duplication, or waste in the public printing 

and binding and the distribution of Government publications.” Second, § 501 

provides that all government printing, binding, and blank book work shall be 

done at the Government Printing Office (GPO), except: (1) work the JCP 

considers “to be urgent or necessary to have done elsewhere” and (2) printing 

in field plants operated by executive or independent departments, “if approved 

by the Joint Committee on Printing.” Finally, § 502 provides that if the Public 

Printer is unable to do certain printing work at the GPO, he may enter into 

contracts to have the work produced elsewhere, “with the approval of the Joint 

Committee on Printing.” As far as we are aware, these statutory provisions 

constitute the full extent to which the entire Congress might have been said to 

empower the JCP to participate in the decisionmaking process involving printing and distribution of materials published by the Executive Branch.

The proposed regulations were published in the Congressional Record on 

November 11,1983, a gesture apparently not mandated by any existing statute.

2 Because we conclude that the regulations as a whole cannot legally be enforced against the Executive 

Branch, we do not seek in this memorandum to discuss the legality o f various provisions o f the regulations 

individually. Consequently, we have not attempted to resolve the specific question raised in your request 

regarding the regulations’ apparent effect o f transferring to the GPO revenues that ordinarily would be paid 

into the accounts of individual agencies or the United States Treasury.

43
Nor are we aware of any other procedural requirements that might apply to 

promulgation of “regulations” such as these. Although Congress has enacted 

an elaborate scheme in the Administrative Procedure Act (APA) to control the 

issuance of regulations by executive agencies and to protect the persons subject 

to them by requiring broad opportunity for public notice and comment and 

availability of an administrative record reflecting these comments, we do not 

know of any analogous protections for those putatively subject to “legislative 

regulations.” On the one hand, for the reasons stated in Part II of this memorandum, “legislative regulations” can apply only internally in Congress. Therefore 

one would not necessarily expect a scheme such as the APA to apply. On the 

other, it could also be assumed that had Congress contemplated or intended to 

authorize a committee’s issuance of broad, binding regulations that could have 

an effect on the public and on the Executive Branch, it might have enacted a 

procedure comparable to the APA to ensure that the practice comports with the 

principles of due process. Thus, it could be argued that it is doubtful that 

Congress intended to authorize this committee to assume a regulatory role with 

respect to persons outside the Legislative Branch. See INS v. Chadha, 462 U.S. 

at 951.

At the very least, authority to regulate in a sweeping fashion cannot be 

presumed without an express indication that Congress has specifically delegated regulatory power.3 The three statutory provisions mentioned above fall 

far short of a clear delegation of regulating authority.

A. 44 U.S.C. § 103

The first, § 103 was originally enacted in 1852 in the following form:

The Joint Committee on Printing shall have power to adopt such 

measures as may be deemed necessary to remedy any neglect or 

delay in the execution of the public printing, provided that no 

contract, agreement, or arrangement entered into by this committee shall take effect until the same shall have been approved 

by that house of Congress to which the printing belongs, and

when the printing delayed relates to the business of both houses,

until both houses shall have approved o f such contract or arrangement.

Ch. 1, 10 Stat. 35 (1852) (emphasis added).

The language of that section, particularly the underlined portion, manifests 

its purpose: to allow the JCP to take remedial steps with regard to problems that 

may arise in having Congress’ printing performed. The statute sought only to 

govern printing work for either or both Houses of Congress. The proviso, 

requiring one- or two-House approval for JCP remedial actions, was removed

3 Cf. Industrial Union D ep’t, AFL-CIO v. American Petroleum Inst., 448 U.S 607, 685-86 (1980) 

(Rehnquist, J., concurring) (delegation o f regulatory authority to executive must provide “intelligible principle” to guide exercise o f discretion).

44
in 1894 when Congress passed an amendment which left the JCP alone in 

charge of curing delay in congressional printing. The reason for the amendment 

was that “[i]t seemed to the committee [JCP] that this approval of their action in 

each instance by Congress would produce delay and defeat rather than advance 

efforts to prevent neglect or delay.” 27 Cong. Rec. 30 (1894) (conference 

report). Congress gave no indication of any intention to change the scope of the 

JCP’s remedial powers. Evidently, therefore, the committee’s powers continued to extend only to the oversight of printing performed for either or both 

Houses of Congress.

By the time the JCP obtained this authority to remedy delay in the public 

printing without approval of either or both Houses, Congress had already 

passed a resolution requiring all public printing to be done at the newly formed 

government printing establishment (the precursor to § 501). Res. 25, 12 Stat. 

118 (1860). Consequently, at the time Congress granted the JCP power over the 

“public printing,” that term applied, without exception, to the operations of the 

GPO alone. Bearing in mind this relation between the precursors to §§ 103 and 

501, we believe the authority given the JCP to remedy delay “in the execution 

of the public printing” was intended to extend only to the operations of the 

GPO, itself an organization within the Legislative Branch.4 No subsequent 

legislative history of which we are aware has evinced a congressional intention 

to recast § 103 so that the JCP’s remedial powers over the public printing 

would encompass operations outside the GPO.5 That section does not supply a 

foundation for the JCP’s attempt to reach beyond the GPO to all related 

activities irrespective of where they are conducted.

B. 44 U.S.C. § 501

The second provision asserted as authority for the proposed regulations 

explicitly grants the JCP power to approve certain Executive Branch decisions 

regarding operation of field plant printing facilities. 44 U.S.C. § 501(2). Section 501 also allows the JCP to approve the outside printing of other classes of 

work when “necessary” or “urgent.” Id. § 501(1). Neither the statute nor its 

history gives any suggestion, however, that the power to approve printing work 

was intended to be expanded into an all-encompassing authority to regulate all 

aspects of operations in the Executive Branch unrelated to the common understanding of “printing.”

The legislative history of § 501 reflects an evolution, first, from a rule 

promulgated in 1860, requiring all printing to be done at the GPO, Res. 25, § 5, 

12 Stat. 118 (1860), to an enactment of 1895, allowing exceptions to be

4 See Lewis v. Sawyer, 698 F.2d 1261, 1263 (D.C. Cir. 1983) (Wald, J., concurring) (citing § 103 as 

example of congressional control over GPO in support of conclusion that GPO is a legislative unit).

s The section was amended in 1919, when the words “duplication" and “w aste” and the phrase “and the 

distribution of G overnment publications” were added. Ch. 86, § 11, 40 Stat. 1270 (1919). No discussion or 

explanation of the change appears in the legislative history. See 57 Cong. Rec. 3865 (1919); H.R. Rep. No. 

1146, 65th Cong., 3d Sess. 7 (1919).

45
“provided by law,” ch. 23, § 87,28 Stat. 662 (1895). That provision was altered 

in 1919, when Congress permitted certain classes of work to be done elsewhere 

than in the District of Columbia if the JCP deemed it necessary, ch. 86, § 11,40 

Stat. 1270 (1919), based on an explanation that such flexibility would save 

money for the government, 57 Cong. Rec. 3865 (amending H.R. 14078, 65th 

Cong., 3d Sess. (1919)). Finally, the two exceptions now codified in § 501 

were enacted in 1949 to save further time and expense by permitting printing to 

be accomplished in the area where it is needed. Pub. L. No. 156, 63 Stat. 405 

(1949). The explanations of the various amendments, although brief, indicate 

that the JCP’s role was intended merely to ensure that the considerations of 

efficiency and economy were met in every case. H.R. Rep. No. 841, 81st 

Cong., 1st Sess. (1949), reprinted in 1949 U.S.C.C.A.N. 1515-16. Congress 

has never expressed, in connection with § 501, that it expected the JCP’s 

approval power to be expanded into authority for overseeing, specifying, and 

regulating internal operations of the Executive Branch.

C. 44 U.S.C. § 5 0 2

Nor does § 502, which authorizes the Public Printer to obtain certain contract work, expressly or impliedly endow the JCP with the power to regulate the 

activities of the Executive Branch. By its terms that section allocates powers 

between the JCP and the GPO, a division of responsibilities among units 

largely within the Legislative Branch, and does not directly affect any activities 

of Executive departments.

Notwithstanding the absence of any express legislative authority for the 

JCP’s assumption of the role of a regulatory commission over Executive 

Branch printing, word processing and information distribution systems, the 

ICP Chairman has characterized the Committee’s efforts as a “regulatory 

scheme.” 129 Cong. Rec. 32286 (1983). By redefining the statutory term 

“printing,” the JCP has, in effect, attempted to control all functions related to 

the creation of a written word or symbol, including “all systems, processes and 

equipment used to plan . . . the form and style of an original reproducible 

image.” Id. (Proposed Regulations, Title I, number 3). That attempt strays far 

from the JCP’s statutory grant of authority under § 103, § 501, or § 502.

Because no legal foundation can be identified in support of either the 

“regulatory” expansion of the statutory term “printing” or the breadth of the 

entire proposed scheme over Executive Branch management decisions, established principles of administrative law compel the conclusion that the JCP has 

exceeded its statutory authority in issuing the proposed rules. Cf. 5 U.S.C. 

§ 706(2)(c) (agency rulemaking); City o f Overton Park v. Volpe, 401 U.S. 402, 

415 (1971); Schilling v. Rogers, 363 U.S. 666, 676-77 (1960); L. Jaffe, 

Judicial Control o f Administrative Action 359 (1965).

Although we believe that the proposed regulatory scheme lacks a valid 

statutory basis, we proceed to examine the implications of the regulations for 

the constitutional separation of powers.

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II. Legislative and Executive Functions

In view of the purported binding effect of the JCP’s proposed regulations on 

Executive Branch agencies, the question arises whether the JCP, a Legislative 

Branch entity, is seeking to exercise executive functions in a manner that 

violates constitutional principles of the separation of powers. In Buckley v. 

Valeo, 424 U.S. 1 (1976), the Supreme Court, per curiam, struck down a 

provision of the Federal Election Campaign Act of 1971 which gave the 

Federal Election Commission, whose members were not all appointed by the 

President, the power to perform broad functions, including rulemaking, for 

enforcement of the Act. Id. at 141. The Court found that the Commission, so 

composed, was constitutionally precluded from performing executive tasks, 

because of the failure to comply with the Appointments Clause, U.S. Const, art.

II, § 2, cl. 2:

[The President] shall nominate, and by and with the Advice and 

Consent of the Senate, shall appoint Ambassadors, other public 

Ministers and Consuls, Judges of the supreme Court, and all 

other Officers of the United States, whose Appointments are not 

herein otherwise provided for, and which shall be established by 

Law: but the Congress may by Law vest the Appointment of 

such inferior Officers, as they think proper, in the President 

alone, in the Courts of Law, or in the Heads of Departments.

The pivotal term “Officers of the United States” was explained by the Court 

to mean “any appointee[s] exercising significant authority pursuant to the laws 

of the United States,” 424 U.S. at 126, and again as “all appointed officials 

exercising responsibility under the public laws of the Nation.” Id. at 131. 

Officials meeting these qualifications must be appointed in the manner prescribed in Article II of the Constitution. Id. at 126. This is because the 

Legislature “cannot ingraft executive duties upon a legislative office,” Id. at 

136 (quoting Springer v. Philippine Islands, 277 U.S. 189, 202 (1928)); nor 

can it insulate persons performing executive tasks from the President’s power 

to remove them. Id. In short, the Court held that Congress may not itself 

appoint persons to perform duties that may be performed only by an officer of 

the United States.

In analyzing the powers conferred on the Federal Election Commission, the 

Court in Buckley described three types of statutory functions: “functions relating to the flow of necessary information — receipt, dissemination, and investigation; functions relating to the Commission’s task of fleshing out the statute 

— rulemaking and advisory opinions; and functions necessary to ensure compliance with the statute and rules — informal procedures, administrative determinations and hearings, and civil suits.” 424 U.S. at 137. The Court held that 

“insofar as the powers confided in the Commission are essentially of an 

investigative and informative nature, falling in the same general category as 

those powers which Congress might delegate to one of its own committees,”

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the Commission as then composed could constitutionally exercise them. However, “when we go beyond this type of authority to the more substantial powers 

exercised by the Commission, we reach a different result.” Id. at 137-38. The 

Court held that each of the Commission’s functions related to rulemaking and 

rendering advisory opinions “represents the performance of a significant governmental duty exercised pursuant to a public law,” which could be performed 

only by persons appointed in accordance with the Appointments Clause. Id.

at 141.

At the same time, the Supreme Court disavowed any intention to “deny to 

Congress ‘all power to appoint its own inferior officers to carry out appropriate 

legislative functions.’” 424 U.S. at 128. Because, as discussed above, members 

of the JCP are not appointed in accord with Article II, we must address 

whether, by issuing and implementing the proposed regulations, the JCP would 

be performing functions of officers of the United States or merely carrying out 

appropriate legislative functions.

Applying the rule of Buckley v. Valeo to the rulemaking powers arrogated to 

itself by the JCP, we conclude that those powers are not “sufficiently removed 

from the administration and enforcement of public law to allow [them] to be 

performed by” persons not appointed in accordance with the Appointments 

Clause. 424 U.S at 141. We have described above the nature and extent of the 

JCP’s proposed involvement in the printing operations of the Executive Branch, 

and the putatively binding nature of the JCP rules. Accordingly, like the 

rulemaking and advice-giving functions of the Federal Election Commission at 

issue in Buckley, the JCP’s activities “represent the performance of a significant governmental duty exercised pursuant to a public law.” Id.

Insofar as the JCP enjoys investigative and informative powers of the type 

generally delegated to congressional committees, the Constitution is no bar to 

its exercise of those powers. Buckley v. Valeo, 424 U.S. at 137; McGrain v. 

Daugherty, 273 U.S. 135, 175 (1927). One might assert that the JCP’s powers 

over the GPO are just such internal powers which allow it to control all 

operations of the GPO and that Congress may constitutionally require all 

Executive Branch agencies to use the GPO facilities for all their printing 

needs.6 Because certain standards and rules must necessarily be permissible in 

running the operations of the GPO, it might be suggested, the JCP inevitably 

exerts some powers over Executive agencies, which might then arguably be 

expanded to other arenas to the extent printing outside the GPO is permitted. 

However, the proposed regulations bear no relation to the smooth operation of 

the GPO; rather, they focus primarily on outside activities involving management of information. Thus, the GPO foundation upon which to build the 

expanded and comprehensive JCP regulatory structure is absent from the 

proposed regulatory scheme. We do not believe the constitutional demarcation 

of executive and legislative functions can be so easily eroded.

6 The constitutionality o f a statute requiring all agencies to use the GPO for their printing is not an issue 

necessary to evaluate the validity of the proposed regulations or the existing statutes. We therefore do not 

attem pt to resolve this question.

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The most egregious and illustrative provision in this regard is the requirement that each Executive department submit annually to the JCP a plan outlining its printing and distribution activities anticipated for the fiscal year and the 

following two years. Under the proposed regulations, the JCP would review 

each of these plans to determine its conformity with the objectives of the 

“Federal printing program,” specifically evaluating the efficiency and cost 

effectiveness of the plan and the printing and distribution requirements of the 

Executive department. Only upon approval of the JCP could a department 

implement its plan. This “Federal printing program,” a construct of the JCP, 

clearly involves the interpretation and implementation of policy directives that 

it is the job of the Legislature (acting as a legislature and not a committee) to 

identify and of the Executive to fulfill. Each step in this “micro-management” 

process constitutes a uniquely executive function, to execute faithfully the laws 

as constitutionally enacted by Congress.

In sum, administrative functions such as policymaking and rulemaking are 

quintessentially and traditionally executive duties; they are the duties of “Officers of the United States.” See Springer v. Philippine Islands, 277 U.S. 189, 

202 (1928).7 Yet the JCP unequivocally acknowledges its intention “to replace 

JCP micro-management procedures with oversight and policymaking functions,” 129 Cong. Rec. 32285 (1983), and to establish a new “regulatory 

scheme,” id. at 32285, all with respect to putative control of the Executive 

Branch. We cannot reconcile this endeavor with the Supreme Court’s clear 

delineation of the functions assigned to the three Branches of the Government 

by the Constitution.8

This is not the first attempt at an express transformation of the JCP to a 

policymaking executive body. In 1919, Congress attempted explicitly to provide, by statute, for a broad system of JCP regulatory authority not unlike the 

present scheme. Under the bill, passed by both Houses of Congress,

no journal, magazine, periodical, or similar Government publication shall be printed, issued, or discontinued by any branch or 

officer of the Government service unless the same shall have 

been authorized under such regulations as shall be prescribed by 

the Joint Committee on Printing .... [T]he foregoing provisions 

of this section shall also apply to mimeographing, multigraphing,

1 Cf. Lewis v Sawyer, 698 F.2d 1261, 1263 (D.C. Cir. 1983) (Wald, J., concurring) (JCP’s order that Public

Printer halt furlough plans for GPO employees did not “encroach[] on another branch and thereby offend[]

the constitutional separation of powers" only because GPO is a legislative, rather than an executive, unit).

Each branch of the Federal Government can conduct the hiring and firing o f employees within that branch, to

carry out the respective mission o f that branch, w ithout treading upon the separation-of-powers doctrine. O f

course, Congress can regulate hiring and firing of civil servants in the Executive Branch, but only by

legislation, not by committee fiat.

8 This conclusion would seem to apply equally to the “JCP micro-management procedures" currently in 

place as well as the establishm ent by the JCP o f a new “regulatory scheme." It would seem irrefutable under 

Buckley and Chadha that micro-management o f Executive Branch agencies is an inherently executive 

function, and one which must therefore be performed by officers of the U nited States duly appointed pursuant 

to Article II of the Constitution.

49
and other processes used for the duplication of typewritten and 

printed matter, other than official correspondence and office 

records.

H.R. 12610, 66th Cong., 2d Sess. (1919).

President Wilson vetoed the bill, voicing an adamant repudiation of any right 

Congress claimed to endow a committee “with power to prescribe ‘regulations’ 

under which executive departments may operate.”9 This historical perspective 

highlights an important aspect of the separation of powers issue. Following 

Congress’ failure to accomplish its objective once through a constitutional 

process, the JCP may not now attempt to effect the same end by “regulation,” 

circumventing the possible intervention of a Presidential veto. This usurpation 

of executive power is the very evil that the Supreme Court recognized when it 

quoted from The Federalist in its opinion in INS v. Chadha:

If even no propensity had ever discovered itself in the legislative 

body to invade the rights of the Executive, the rules of just 

reasoning and theoretic propriety would of themselves teach us 

that the one ought not to be left to the mercy of the other, but 

ought to possess a constitutional and effectual power of selfdefence.

462 U.S. at 947 (quoting The Federalist No. 73. at 458 (A. Hamilton) (H. 

Lodge ed. 1888)).

III. Legislative Action

We next consider whether the JCP’s proposed regulations can be treated as 

an exercise of Congress’ constitutional power to legislate and, if so, whether 

the JCP could by itself exercise that legislative power. In 1690, John Locke 

wrote that “the Legislative can have no power to transfer their Authority of 

making Laws, and place it in other hands.”10 Nearly three hundred years later, 

the Supreme Court, in INS v. Chadha, restated the same principle as firmly 

embodied in the United States Constitution. The Court forcefully articulated 

the broad constitutional principle that all exercises of legislative power must 

undergo bicameral passage and presentment to the President unless the Constitution specifically authorizes a departure from the standard procedure. 462 

U.S. at 946-51. Whether a particular action constitutes an exercise of legislative power requiring adherence to the rules of bicameral passage and presentment depends upon whether it is legislative in character. An action by Congress

9 V eto M essage on Legislative, Executive and Judicial Appropriation Bill, H.R. Doc. No. 764, 66th Cong., 

2d Sess. 2 -3 (1920). President W ilson's veto message was one basis upon which, in 1933, then Attorney 

General W illiam D. M itchell concluded that a statutory provision authorizing a joint committee of Congress 

to m ake final decisions regarding certain tax refunds was a trespass upon the constitutional separation of 

powers. He reasoned that the provision “attempts to entrust to members o f the legislative branch, acting ex

officio, executive functions in the execution o f the law, and it attempts to give a committee of the legislative 

branch pow er to approve or disapprove executive acts.” 37 Op. Att’y Gen. 56, 58 (1933).

10 J. Locke, Second Treatise of Government § 141, at 381 (P. Laslett ed. 1980).

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is “legislative” if it purports to have “the purpose and effect of altering the legal 

rights, duties and relations of persons, including . . . Executive Branch officials 

.. ., outside the legislative branch.” Id. at 952.

Of the three statutory bases relied upon by the JCP for authority to issue its 

proposed regulations, only one explicitly allows the committee to approve or 

disapprove decisions of persons outside the Legislative Branch. 44 U.S.C. 

§ 501(2). Section 501(2), which purports to allow the JCP unilaterally to create 

exceptions to the general rule that all printing must be accomplished through 

the GPO, would have the effect of empowering a committee of Congress to 

forestall, regulate, revise or manage executive printing operations which have 

been authorized through the legislative process in the form of authorization and 

appropriations acts for the agencies involved. This action inevitably affects the 

rights, duties, and relations of members of the other branches of government, 

and appears to meet the test for legislative action.11

The Supreme Court has also indicated that, in determining whether an act is 

legislative in character, it is useful to examine the nature of the congressional 

action which the committee’s power supplants. Chadha, 462 U.S. at 962. Until 

the predecessor to § 501 was amended in 1919 to give some discretion to the 

JCP,12 all printing had been centralized in the GPO, “except in cases otherwise 

provided by law.”13 This history suggests that the Committee’s power to create 

exceptions to the statute originated as a substitute for plenary legislation — an 

action indubitably legislative in character.

We conclude that § 501 improperly seeks to delegate legislative power to the 

JCP in abrogation of the constitutional requirements of bicameral passage and 

presentment. Consequently, even the bare statutory approval power — 

unembellished by interpretative regulations — must fall as a compromise of 

the constitutional requirements for legislative action.14

Under the other two sources of putative authority propounded by the JCP, 

the proposed regulations fare no better. Although neither § 103 nor § 502 

explicitly authorizes the JCP to affect the rights and relations of extra-legislative officials, the JCP proffers those sections as authority for placing constraints on the implementation of executive printing operations already sane11 Similarly, § 501(1) purportedly enables the JCP, by itself, to create exemptions from the legislated rule 

that all printing be done at the GPO. Although it does not operate expressly upon the statutory functions o f the 

Executive Branch, it does purport to delegate a legislative function to a committee of Congress, which is also 

impermissible under Chadha. 462 U.S. at 952. Except insofar as the provision allows the JC P to control the 

internal printing affairs of Congress, id. at 955 n.21, it inevitably alters the rights, duties and relations of 

persons outside that branch by permitting a committee to effect an exception to a legislated rule, and therefore 

is an unconstitutional exercise o f legislative power.

12 Ch. 86, § 11, 40 Stat. 1270 (1919) (printing to be done by GPO “except such classes o f work as shall be 

deemed by the Joint Committee on Printing to be urgent or necessary to have done elsewhere than in the 

District of Columbia for the exclusive use of any field service outside of said District”).

13 Ch. 23, § 87, 28 Stat. 662 (1895).

14 This Office recently provided an opinion devoted exclusively to the constitutionality o f the statutory 

approval power granted the JCP in 44 U.S.C. § 501(2). The opinion concluded that this power is invalid under 

INS v. Chadha, and that the ability of Executive departments to conduct authorized field-plant printing 

remains effective. M emorandum for William H. Taft, IV, Deputy Secretary o f Defense, from Theodore B. 

Olson, Assistant Attorney General, Office of Legal Counsel 15 (Mar. 2, 1984).

51
tioned with budget authority and appropriated funds. Insofar as the two sections can reasonably support the issuance of regulations restricting the lawful 

operations of all agencies and departments of the Federal Government, they too 

authorize a committee’s exercise of legislative power and therefore cannot 

survive under Chadha. “A joint committee has not [sic] power to legislate, and 

legislative power cannot be delegated to it.” 37 Op. Att’y Gen. 56, 58 (1933).

IV. Conclusion

The defects in the committee approval and regulatory mechanism discussed 

here could well have been the object of the views articulated twenty-five years 

ago by then-Acting Attorney General William P. Rogers:

Legislative proposals and enactments in recent years have reflected a growing trend whereby authority is sought to be vested 

in congressional committees to approve or disapprove actions of 

the executive branch. Of the several legislative devices employed, that which subjects executive department action to the 

prior approval or disapproval of congressional committees may 

well be the most inimical to responsible government. It not only 

permits organs of the legislative branch to take binding actions 

having the effect of law without the opportunity for the President to participate in the legislative process, but it also permits 

mere handfuls of members to speak for a Congress which is 

given no opportunity to participate as a whole. An arrangement 

of this kind tends to undermine the President’s position as the 

responsible Chief Executive.

41 Op. Att’y Gen. 300, 301 (1957).

For the reasons expressed above, we have concluded that the regulations 

proposed by the Joint Committee on Printing are without foundation in law. 

First, no statute grants to the JCP, with adequate specificity, authority to issue 

regulations purporting to control operations within the Executive Branch for 

which budget authority and appropriated funds exist. Second, the JCP’s attempted performance of executive functions in administering the laws transgresses the rule of separation of powers set forth in Buckley v. Valeo. Finally, a 

congressional committee’s promulgation of rules binding on the other branches 

runs afoul of the constitutional requirement, affirmed in INS v. Chadha, that all 

legislative actions, with a few specifically stated exceptions not relevant here, 

undergo bicameral passage and presentment to the President.

T h e o d o r e B . O l s o n

Assistant Attorney General

Office o f Legal Counsel

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