General Services Administration Printing Operations

• Court: Department of Justice Office of Legal Counsel
• Decided: September 13, 1993
• Status: Published

Opinion

General Services Administration Printing Operations

T h e J o in t C o m m itte e o n P rin tin g lacks the a u th o rity to a lte r the G e n e ra l S e rv ic e s A d m in is tra tio n ’s p rin tin g o p e ra tio n s b e c a u s e th e only b a sis fo r th a t a u th o rity is an in v a lid le g isla tiv e veto p ro v isio n c o n ta in e d in 4 4 U .S .C . § 5 0 1 .

S e c tio n 2 0 7 o f P u b lic L a w N u m b e r 102-392 re q u ire s e x e c u tiv e b ra n c h e n titie s (o th e r th a n the C en tra l In te llig e n c e A g e n c y , th e D e fe n se In te llig e n c e A g e n cy , a n d the N a tio n a l S e c u rity A g e n cy ) to p ro ­ c u re p rin tin g re la te d to th e p u b lic a tio n o f g o v e rn m e n t p u b lic a tio n s b y o r th ro u g h the G o v e rn m e n t P r in tin g O ffic e .

Septem ber 13, 1993

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l 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

This m em orandum responds to your request for our opinion on certain restric­ tions that the Joint Committee on Printing (“JC P ”) has attempted to place on the printing operations of the General Services Administration (“GSA”). In particular, you have asked us whether the JC P has the authority to restrict G SA ’s printing functions, and whether recent legislation has any effect on G SA ’s authority to en­ gage in printing. W e conclude that the JCP does not have the authority to alter G SA ’s printing operations, but that section 207 o f Public Law Number 102-392, 106 Stat. 1703, 1719 (1992) (codified as a note to 44 U.S.C. § 501) mandates pro­ curem ent o f printing for executive branch agencies by or through the Government Printing O ffice (“G PO ”).

I

Section 501 of title 44 provides that all executive, congressional, and judicial printing m ust be done at the GPO, except for printing in field plants operated by executive departm ents or independent offices “if approved by the Joint Committee on Printing.” This Office issued an opinion in 1984 determining that the require­ ment o f approval by the JCP constitutes an unconstitutional legislative veto, be­ cause it purports to em power a single com m ittee of Congress to take legislative action without meeting the Constitution’s requirements of bicameral passage and presentm ent to the President. M emorandum for W illiam H. Taft, IV, Deputy Sec­ retary o f Defense, from Theodore B. Olson, A ssistant Attorney General, Office of Legal Counsel, Re: Effect o f INS v. Chadha on 44 U.S.C. § 501, “Public Printing and D ocum ents” (M ar. 2, 1984); see INS v. Chadha, 462 U.S. 919 (1983) (holding legislative veto unconstitutional for failure to com ply with constitutional require­

54 G eneral Services A dm inistration P rinting Operations

ments o f bicameralism and presentment). The opinion concluded that the provi­ sion allowing field printing is severable from the invalid approval mechanism and that the remainder of the statute, permitting field printing, remains effective. Section 501 of title 44 is the only statute that purports to give the JC P direct authority over government field printing operations. Congress has not amended 44 U.S.C. § 501, nor has it passed any other legislation granting the JC P new authority over printing. Thus, the JCP lacks the authority to alter executive agencies’ print­ ing operations; its only asserted authority to do so is contained in an invalid ap­ proval mechanism. The JCP has, on a number of occasions, asserted its authority to alter G SA ’s printing operations. In particular, it has stated that it “modified the charters of all GSA printing plants" by means of a letter sent to GSA on March 16, 1989. See Letter for Richard G. Austin, Administrator, General Services Administration, from the Honorable Charlie Rose, Chairman, and Senator W endell H. Ford, Vice Chairman, Joint Committee on Printing, at 1 (Jan. 15, 1993). The March 16, 1989, letter apparently relied on the JC P ’s purported authority under 44 U.S.C. § 501 in stating, “please advise your [GSA’s] field printing and duplicating organizations to restrict their activities to providing services to Federal agencies within their im m e­ diate building com plexes.” Letter for Richard G. Austin, Acting Administrator, General Services Administration, from Senator W endell H. Ford, Acting Chair­ man, Joint Committee on Printing (Mar. 16, 1989). Because the JCP lacks the authority to restrict G SA ’s printing operations, its attempt in 1989 to alter G S A ’s field printing operations, as well as all other attempts by the JCP to modify unilat­ erally the printing operations of executive agencies, are invalid.

II

Although Congress has not passed legislation granting the JCP direct authority over executive agencies’ printing operations, it has passed legislation that requires executive branch agencies to procure printing through the GPO. Paragraph (a)(1) o f section 207 o f Public Law Number 102-392 provides as follows:

None of the funds appropriated for any fiscal year may be obli­ gated or expended by any entity of the executive branch for the pro­ curement of any printing related to the production of Government publications (including printed forms), unless such procurement is by or through the Government Printing Office.

The scope of section 207(a)(1) is quite broad: it applies to any appropriated funds expended by any executive branch entity, which would encompass virtually all

55 Opinions o f the O ffice o f L egal C ounsel

spending by all executive branch agencies.1 C f 5 U.S.C. app. § 8E (Inspector General Act of 1978) (defining the term “Federal entity”). Thus, section 207(a)(1) m andates that all executive agencies procure all o f their printing related to the pro­ duction o f governm ent publications by or through the GPO.2 There are, however, three limitations on this provision. Section 207(a)(2) ex­ empts from the strictures outlined above:

(A) individual printing orders costing not more than $1,000, if the work is not o f a continuing o r repetitive nature, and, as certified by the Public Printer, cannot be provided m ore economically through the G overnm ent Printing Office, (B) printing for the Central Intelli­ gence A gency, the Defense Intelligence Agency, or the National Se­ curity Agency, [and] (C) printing from other sources that is specifically authorized by law.

The first two exem ptions place clear, but narrow, limits on the scope of section 207. Only the third exemption could potentially exempt GSA entirely from the restrictions of section 207(a)(1). T h e sole rem aining question, then, is whether GSA may be exem pted pursuant to section 207(a)(2)(C), which exempts “printing from other sources that is specifically authorized by law.”

Ill

You have identified tw o possible statutory bases for the proposition that G SA ’s printing operations are specifically authorized by law. The first is 40 U.S.C. § 481(a)(3), which authorizes the A dm inistrator of GSA to “procure and supply personal property and nonpersonal services for the use of executive agencies in the proper discharge of their responsibilities.” The second is 40 U.S.C. § 293, which provides in relevant part that, “[f]or the establishment o f a working capital fund there is appropriated $50,000, without fiscal year limitation, for the payment of salaries and other expenses necessary to the operation o f a central blue-printing, photostating, and duplicating service.”

1 P rev io u s v ersio n s o f the note to 44 U S C § 501 (w here sectio n 207 is codified) contain sim ilar restnc- tions on p rin tin g p ro c u re d by entities of the e x ecu tiv e b ranch See, e.g , 4 4 U .S.C § 501 note (Supp. II 1990) (L eg islativ e B ran ch A ppropriations A ct, 1991, Pub. L No. 101-520, § 206, 104 Stat. 2254, 2274 (1990)) T h ese p rio r versions had a significantly narrow er sco p e, how ever, as they applied only to the pro­ curem en t o f p rin tin g “ from com m ercial sources.” See id 2 S ectio n 207 does not v iolate the separation o f powers by d e leg ating executive authority to the G PO See A p p lica b ility o f P o st-E m p lo xm en t Restrictions on Dealing w ith G overnm ent to F orm er Em ployees o f the G o vern m en t P rin tin g O ffice, 9 O p. O L.C 55 (1 985) (co n clu d in g that the G PO is a unit o f the legislative branch fo r p u rp o ses o f post-em ploym ent restrictions) It d o es not give the G PO the authority to refuse to pnnt any m aterials, b u t rath er m erely requires th a t printing be p ro cu red “by o r through*’ the GPO . M oreover, because 44 U S.C . § 1101 p ro v id es that *‘(t)he Public Printer sh all execute such printing and binding for the P resident as he m ay o rd e r an d m ak t requisition for,” the ex ec u tiv e branch retains its ability to ensure that m aterials are p rin ted

56 G eneral Services A dm inistration P rinting Operations

Section 481(a)(3) of title 40 does not constitute specific authorization to print. The provision does not mention printing or any printing-related services. This omission is particularly striking in light of the reference in a companion provision, § 481(a)(1), to other aspects of “procurement and supply of personal property and nonpersonal services,” such as “contracting, inspection, [and] storage.” The spe­ cific reference in § 481 to such functions can be contrasted with the omission of any reference to printing. Moreover, there are no references to printing in the leg­ islative history o f 40 U.S.C. § 481. Thus printing is authorized by this provision only as one of the many services that GSA provides. Such broad authorization to engage in certain categories of services is, by definition, general. There is no basis for suggesting, therefore, that this provision satisfies the requirement that the printing be “specifically authorized by law.” Section 293 is a somewhat closer case, because it does mention “blue-printing, photostating, and duplicating,” which could be construed to include most, and per­ haps all, of G SA ’s printing operations. The problem with this section is that, al­ though it specifically mentions these printing operations, it does not specifically authorize them. Section 293 was originally enacted as a section of an appropriations act that was passed in 1945, Independent Offices Appropriation Act, 1946, Pub. L. No. 79-49, § 101, 59 Stat. 106, 115 (1945), and has not been substantively amended since then. This section of the appropriations act authorized the creation and m ainte­ nance of a fund to pay salaries and other expenses; that is, it merely appropriated funds. The operative effect o f the current version, similarly, is to authorize the use o f certain money to fund ongoing operations. The structure of § 293 is that it ap­ propriates $50,000 for the payment of salaries and expenses necessary to the op­ eration of printing services. The phrase “necessary to the operation of a central blue-printing, photostating, and duplicating service” indicates that the printing service — and any authorization for it — exists irrespective of the appropriation in § 293. The reference to printing merely clarifies the purposes for which the funds shall be used. Thus, § 293 clearly contemplates that GSA3 will operate “a central blue-printing, photostating, and duplicating service,” but it does not, by its terms, authorize such a service. The language of the section reveals that its operative effect is to authorize the use o f funds to pay for certain functions, not to authorize those functions per se. Arguably, the establishment o f a fund to pay for printing also constitutes an im­ plied authorization to print. Such implicit authorization, however, does not appear to meet the requirement that the printing be “specifically authorized by law.” “Specifically” is defined as “[w]ith exactness and precision; in a definite manner,” W ebster’s New International Dictionary 2415 (unabridged 2d ed. 1957), and

3The original version o f 40 U S C § 293 appropriated funds for blue-printing, photostating and duplicat- m g by the Federal W orks A gency Section 103 o f the Federal Property and A dm inistrative Services A ct o f 1949, Pub. L No 81-152, 63 Stat 377, 380, transferred all functions o f the Federal W orks A gency to G SA

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“specific” m eans “[ex p licitly set forth; definite.” American Heritage Dictionary 1730 (3d ed. 1992). In this case, the authorization to print is not explicitly set forth or presented in a definite manner. A t most, it is indirectly entailed in the explicit authorization to appropriate funds. The absence of an express authorization to print defeats any argum ent that G S A ’s printing operations were “specifically authorized by law .” Thus, in 40 U.S.C. § 293 there is a specific reference to printing, and there may be an implied authorization to print, but there is no specific authorization to print. T he legislative history o f 40 U.S.C. § 293 does not affect this analysis of its language, because such history reveals nothing with respect to Congress’s intent (or lack thereof) specifically to authorize printing. W e are left, then, with the words of the statute. The most natural reading of them is that they specifically authorize the creation o f a fund to pay certain expenses, and that they may contain an implied authorization o f the printing that helps to create those expenses, but that they do not specifically authorize printing, because the implication of authorization does not rise to the level o f specificity that section 207 requires.

IV

W e conclude that the JC P lacks the authority to alter G SA ’s printing operations, because the only basis for that authority is an invalid legislative veto contained in 44 U.S.C. § 501. W e also conclude that section 207 requires executive branch entities (other than the Central Intelligence Agency, the Defense Intelligence Agency, and the National Security Agency) to procure printing related to the pub­ lication o f governm ent publications by or through the GPO. GSA is exempted from this requirem ent only with respect to certain individual printing orders costing $1,000 or less.

W ALTER DELLINGER Acting Assistant Attorney General Office o f Legal Counsel