Are Executive Agencies Always Bound by Comptroller General (GAO) Appropriation Law Decisions?
Well that may just depend on who you ask! GAO certainly thinks they are. The Management Concepts Press Appropriations Law Answer Book addresses this conflict beginning with a quote from the GAO Red Book (Principles of Federal Appropriations Law): “A decision regarding an account of the government is binding on the executive branch and the Comptroller General himself.”
The Justice Department Office of Legal Counsel (OLC) disagrees that GAO decisions are binding on executive agencies. That office has a longstanding precedent that GAO’s decisions are not binding on the Executive Branch. In a 2009 memorandum, the Deputy Assistant Attorney General referenced several previous memoranda on OLC decisions on the subject. Among the quotations are the following:
The Comptroller General is an officer of the Legislative Branch. Because GAO is part of the Legislative Branch agencies are not bound by GAO’s legal advice.
Although the opinions and legal interpretations of the GAO often provide helpful guidance on appropriations matters and related issues, they are not binding upon departments, agencies, or officers of the executive branch.
The Office of Legal Counsel considers GAO’s assertion that its decisions are binding on the executive branch to be an infringement on the constitutional separation of the executive and legislative branches.
So what is an agency head or certifying officer to do if GAO and OLC disagree? What opinion do they go with? Fortunately, GAO and OLC are in agreement most of the time. In fact, OLC often seeks or references GAO’s opinions. However, when OLC specifically disagrees with GAO and issues its own decision, agency heads need to remember whom they work for: the executive branch.
Certifying officers are in a more precarious position. GAO grants or denies relief of liability for all certifying officers, except for the armed forces. Therefore, the safest course of action for such non-armed forces certifying officers is to follow GAO guidance while trying to avoid trouble in their own agency.
Remember the GAO has no power to enforce decisions but does have the ear of Congress. Agency officials who act contrary to comptroller general decisions might have to respond to congressional appropriations and program oversight committees. They might be forced into new Congressional reporting requirements or clarifying legislation reiterating GAO’s position on the matter. Once again, remember GAO is a part of the Legislative Branch and helps in the oversight role Congress exercises quite firmly. Certainly agencies that disregard GAO, appropriations committees, and oversight committees do so at their own peril. The power of the purse is a mighty weapon that Congress is not reluctant to use!