"In fact, the Constitutional Convention in 1787 expressly rejected the attempt to re-introduce some power for the President to decide to suspend the execution of laws. In that summer of 1787, Mr. Elbridge Gerry, a Delegate, observed, after a proposal was made at the Philadelphia Convention, "that the national executive have a power to suspend any legislative act. . . ." He noted, "that the power of suspending might do all the mischief dreaded from the novative of useful laws (i.e., the President's veto), without answering the salutary purpose of checking unjust or unwise ones."
The Constitutional Convention, I note, rejected the proposal. "Mr. Tiefer noted, "If the Framers had intended to give the President any such awesome power of deciding the constitutionality of laws as they gave to the Judiciary, there clearly would have been a clear record of it. Yet Alexander Hamilton, who discussed in detail the authority of the Judiciary to decide the constitutionality of laws, provided no such discussion of the supposedly equivalent Presidential power.
"Any possible doubt about the matter was resolved in the historic case of Kendall v. United States, 37 U.S. 524, 9 L. Ed. 1181 (1838). There, a Cabinet Member claimed that because he was subject to the President, who, in turn, supposedly derived a vast power from the 'faithful execution ' clause, he was not bound by the laws.
"The Supreme Court utterly rejected any such argument of Executive supremacy. The Supreme Court said that 'to contend, that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible. '
"That Court," Mr. Tiefer noted, "harkened directly back to the classic language of the English Bill of Rights, and the Framers in a Constitutional Convention, in rejecting Executive power to 'forbid [the] execution ' of the laws.
"In rejecting the Executive's argument, the Court explained that the effect of such power would be the 'vesting in the President [of] a dispensing power, which has no countenance for its support, in any part of the constitution ; [such an argument is] asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of Congress, and paralyze the administration of justice."
More recently the Supreme Court reaffirmed the distinction between the Executive Branch's right to express views on the constitutionality of a law and the Judiciary's right to decide the constitutionality in Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983).
I thus reject any attempt to characterize this Court as incompetent to make binding decisions of constitutional law and I order all parties, specifically the Executive Branch, to follow any ruling I make in this case in this district in which I am sitting. And that refers also to the Honorable Casper A. Weinberger and the Honorable David Stockman.
I, and the members of the Executive Branch of the Government, have taken an oath to execute and fulfill the duties of our offices according to the Constitution and laws of the United States. I believe I adhered to that oath and I would expect no less from members of the Executive Branch of the Government, regardless of what their station is within that Branch.
I order them to uphold that oath with respect to following this Court's order, which remains legally viable in this district until overruled by an appellate court.
I now turn to the parties' cross-motions for summary judgment as to the constitutionality of the act.
Defendants rely on the arguments submitted in opposition to the motion for preliminary injunction and supplement those arguments with additional case law discussing the position of the Comptroller General. Defendants continue to assert that the Comptroller General is part of the Legislative Branch.
I have carefully reviewed defendants' additional theories as to why the Comptroller General cannot constitutionally carry out the duties assigned to that office under the Competition in Contracting Act and find them to be as unpersuasive now as I found them on the motion for preliminary injunction. United States Supreme Court case law clearly distinguishes the unconstitutionality of giving legislative officers executive duties from the constitutionality of giving executive officers legislative powers. See, for example, Springer v. Philippine Islands, 277 U.S. 189 at 202, 72 L. Ed. 845, 48 S. Ct. 480 (1928); Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612.
I found that the appointment of the Comptroller General by the Executive allows the Comptroller General to exercise these duties which are statutorily assigned to him, whether they be executive and/or legislative in nature.
I do not find it necessary to repeat my entire analysis of the law for purposes of this motion. For the reasons I stated in my opinion of March 27, 1985, I find Title 31, U.S.C. Section 3553(d)(1) to be constitutional. The plaintiff intervenor's motion for summary judgment on this issue is accordingly granted, and that of the defendants is denied.
Lastly, I turn to the defendants' motion to dissolve the preliminary injunction. Motions to dissolve an injunction are addressed to the sound discretion of the district court. See Securities and Exchange Commission v. Warren, 583 F.2d 115 (3rd Cir. 1978). Where, however, a final judgment has been entered on the merits, the preliminary injunction comes to an end and is superseded by the final order.
A preliminary injunction is by its very nature interlocutory, tentative and impermanent. See, Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Circuit 1953). The preliminary injunction is, therefore, superseded by my final judgment on the merits that the stay provisions in CICA are constitutional.
Thus, my interlocutory order that the CICA stay provisions are constitutional and that they must be followed is now a final order that they are constitutional and must be followed.
I specifically note that the preliminary injunction has only been dissolved because it has been superseded by a final order.
As there are two separate issues for appeal here, my ruling on the constitutionality of the CICA provisions and my ruling of the denial of Ameron's bid, I am entering two separate orders here today with respect to this matter.
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