Constitutionality of Legislation Establishing the Cost Accounting Standards Board


If the Cost Accounting Standards Board (CASB) is viewed as an Executive Branch entity, the statutory mechanism for appointing its members is unconstitutional under the Appointments Clause; however, it can be argued that the CASB is a Legislative Branch entity, and that its action in promulgating cost accounting standards is advisory with respect to executive agencies.

The Department of Justice has a duty to defend the constitutionality of a statute except in exceptional circumstances, and it thus may be appropriate to bring to a court’s attention any plausible argument that would permit the court to uphold a statute.

Updated July 9, 2014