Everyone seems sure that the Supreme Court is going to destroy the Gramm-Rudman-Hollings budget-balancing law. The Reagan administration has been urging the judiciary to rule the law unconstitutional ever since the president signed it in a flurry of self-congratulation in December. Everyone may be right, but no one should ignore what a dramatic exercise in judicial activism the Reaganites are urging on the court.
Gramm-Rudman puts the government on a five-year deficit-reduction diet. The Office of Management and Budget makes a budget projection; the Congressional Budget Office makes another; the comptroller general settles any differences and applies a budget-cutting formula if annual targets aren't met. Twelve U.S. representatives led by Mike Synar of Oklahoma argue that this arrangement is an unconstitutional delegation of democratic authority by Congress. The Justice Department makes the seemingly opposite argument that Gramm-Rudman is an unconstitutional usurpation of presidential power.
To buy the administration argument, you need to believe that Gramm-Rudman involves the exercise of "executive power." The whole point, though, is to put the government on automatic pilot and deny discretionary power to everyone. In oral argument, Solicitor General Charles Fried declared fancifully that the law gives the comptroller general powers "so sweeping" that they "affect every nook and cranny of government." In fact, this gentleman does little more than to whip out his pocket calculator.
The Reagan Justice Department takes the astonishing position that such "power" can be exercised only by someone who serves "at the pleasure of the president." The comptroller general is appointed for a 15-year term, and the president cannot fire him. This claim of presidential authority is breathtaking. It would delegitimize every independent agency of the government, from the Securities and Exchange Commission to the Federal Reserve Board.
Solicitor General Fried denies this. He told the court that Reagan's position in this case "does not in any way cast any doubt on the independent agencies." It's hard to see why not. The Fed, for example, controls the nation's money supply. How can anyone seriously say this is a smaller "power" than the comptroller general's technical role under Gramm-Rudman? In fact, the administration's position on Gramm-Rudman is part of an organized right-wing litigation strategy to close down the independent agencies. A former Reagan assistant attorney general is currently suing to have the Federal Trade Commission ruled unconstitutional on very similar logic.
Because the implications of the administration argument are so wild, many people expect that the court will overturn Gramm-Rudman on the ground that the comptroller general is not merely independent of the president but actually an agent of Congress. This would save the Fed. But it's a hard case to make. It's not true, as newspapers keep reporting, that the comptroller general "can be fired by Congress." Firing the comptroller general requires a joint resolution passed by both houses and signed by the president. True, a presidential veto can be overriden by a two-thirds vote of both houses. But that is more than you need to impeach the president himself.
Talk about a technicality! One reason the whole controversy is so unreal is that Congress could order the exact same budget cuts by passing a law -- even over presidential objection, with the same two-thirds vote needed to fire the comptroller general. That's why the really interesting question raised by Gramm-Rudman isn't the alleged encroachment on executive power but the abandonment of legislative responsibility.
In practical terms, though, these amount to much the same question. If Congress is told that it must either decide everything for itself or give total decision-making power to the president -- no "independent" middle ground -- it will be far more reluctant to delegate its power. And in any event, the lines of responsibility for government policy will be far clearer than they are now. The growing legal debate about the "separation of powers" is actually about democratic accountability.
This explains the odd political battle array in the Gramm-Rudman case, with ADA liberals and right-wing Reaganites opposed to the law and the Washington establishment (led by superlawyer Lloyd Cutler) in support of it. What the opponents share is a populist vision that important political decisions should be made by officials who are directly accountable to the people.
The populist vision is tempting. Why should matters such as interest rates -- let alone the shape of the government budget -- be decided outside the democratic process? On the other hand, confidence in the democratic process is not enhanced by the collapse of efforts by Congress and the White House to meet the Gramm- Rudman targets ever since it began to appear that the law might be ruled unconstitutional. If the Supreme Court is about to plunge us into a radical experiment in true democracy, we're in for an exciting time.