February 21, 1977

Inspector General Legislation

Certain questions exist concerning the constitutionality of H.R. 2819, 

which would establish an Office of Inspector General in six executive 

departments 1 and five other executive establishments.2 It is our opinion that the provisions in this bill, which make the Inspectors General 

subject to divided and possibly inconsistent obligations to the executive 

and legislative branches, violate the doctrine of separation of powers 

and are constitutionally invalid. This memorandum briefy outlines the 

major provisions of the bill, discusses the constitutional problems presented by those provisions, and recommends modifications to remedy 

those problems.

A. Description of the Inspector General Legislation Pending 

Before Congress

H.R. 2819 was introduced on February 1, 1977, by Representatives 

Fountain and Brooks and has been referred to the Committee on 

Government Operations. The bill combines and reorganizes the present 

internal audit and investigative units in each of the 11 agencies that are 

the subject of the bill into a single office with certain additional responsibilities. The primary functions of the Inspector General’s Office 

would be: (1) to develop and supervise programs (including audits and 

investigations) in the agency to promote efficiency and to prevent fraud 

and abuse; (2) to keep both the head of the agency and Congress fully 

informed regarding these matters; and (3) to recommend and report on 

the implementation of corrective actions.

Each Inspector General is required to prepare and submit to Congress, as well as to the head of the agency, a variety of reports, and is

1 T he D epartm ents included are A griculture, Commerce, Housing and Urban D evelopm ent, Interior, Labor, and Transportation.

2 T he other establishments are the Energy Research and Developm ent Administration, 

the E nvironm ental Protection A gency, the G eneral Services Administration, and the 

N ational A eronautics and Space Administration.

77-8 MEMORANDUM OPINION FOR THE

ATTORNEY GENERAL

16
required to supply additional documents and information to Congress 

on request. These reports are required to be submitted directly to 

Congress without clearance or approval by the agency head or anyone 

else in the executive branch. The Inspector General is authorized to 

have access to a broad range of materials available to the agency and is 

given subpoena power to obtain additional documents and information.

The Inspectors General are to be appointed by the President (with 

the advice and consent of the Senate) “without regard to political 

affiliation,” and whenever the President removes an Inspector General 

from office, the bill would require the President to notify both Houses 

of the reasons for removal.

The bill is modeled on Title II of Pub. L. No. 94-505, 90 Stat. 2429, 

which establishes an Office of Inspector General in the Department of 

Health, Education, and Welfare (HEW). No Inspector General for 

HEW has been appointed to date.

B. Constitutional Objections

1. As a threshold matter, the Justice Department has repeatedly taken 

the position that continuous oversight of the functioning of executive 

agencies, such as that contemplated by the requirement that the Inspector General keep Congress fully and currently informed, is not a proper 

legislative function. In our opinion, such continuing supervision 

amounts to an assumption of the Executive’s role of administering or 

executing the laws. However, at the same time it must be acknowledged that Congress has enacted numerous statutes with similar requirements, many of which are currently in force.

2. An even more serious problem is raised, in our opinion, by the 

provisions that make the Inspectors General subject to divided and 

possibly inconsistent obligations to the executive and legislative 

branches, in violation of the doctrine of separation of powers. In particular, the Inspector General’s obligation to keep Congress fully and 

currently informed, taken with the mandatory requirement that he 

provide any additional information or documents requested by Congress, and the condition that his reports be transmitted to Congress 

without executive branch clearance or approval, are inconsistent with 

his status as an officer in the executive branch, reporting to and under 

the general supervision of the head of the agency. Article II vests the 

executive power of the United States in the President. This includes 

general administrative control over those executing the laws. See, Myers

v. United States, 272 U .S.-52, 163-164 (1926). The President’s power of 

control extends to the entire executive branch, and includes the right to 

coordinate and supervise all replies and comments from the executive 

branch to Congress. See, Congress Construction Corp. v. United States,

314 F. 2d 527, 530-532 (Ct. Cl. 1963).

3. Under the bill, the Inspector General has an unrestricted access to 

executive branch materials and information. He has an unqualified and

17
independent obligation to provide such materials and documents to the 

Congress as it may request. Obviously the details of some investigations 

by the Inspector General (or by the Justice Department) might well, 

under settled principles, require them to be withheld from Congress 

through the assertion of executive privilege. But the bill as written 

would preclude that assertion in view of the Inspector General’s duty 

to make requested materials and information available to Congress.

4. Finally, we are of the opinion that the requirement that the 

President notify both Houses of Congress of the reasons for his removal 

of an Inspector General constitutes an improper restriction on the 

President’s exclusive power to remove Presidentially appointed executive officers. Myers v. United States, supra. Although Congress has the 

authority to limit the President’s power to remove quasi-judicial or 

quasi-legislative officers, Wiener v. United States, 357 U.S. 349 (1958), 

Humphrey's Executor v. United States, 295 U.S. 602 (1935), the power to 

remove a subordinate appointed officer within one of the executive 

departments is a. power reserved to the President acting in his discretion.3

C. Suggested Modifications

We believe that the constitutional problems raised by the proposed 

legislation could only be cured through modification that would clearly 

establish the Inspector General as an executive officer responsible to 

the head of the agency.

The principal problem with the proposed legislation is that the Inspector General is neither fish nor fowl. While the Inspector General is 

supposed to be under the general supervision of the agency head, the 

Inspector General reports directly to Congress. He is to have free 

access to all executive information within the agency, yet he is not 

subject to the control of the head of the agency or, for that matter, 

even to the control of the President.

In our opinion, the only means by which this bill could be rendered 

constitutional would be to modify it so as clearly to establish the 

Inspector General as an executive officer subject to the supervision of 

the agency head and subject to the ultimate control of the Chief 

Executive Officer. We recommend the following modifications:

1. Reports of problems encountered and suggestions for remedial 

legislation may be required of the agencies in question, but those 

reports must come to Congress from the statutory head of the 

agency, who must reserve the power of supervision over the contents of these reports.

2. The constitutional principle of executive privilege must be 

preserved. The provision in the bill requiring reports to Congress

s W e also question the validity o f the requirement that the President appoint each 

Inspector G eneral “ w ithout regard to political affiliation.” This implies some limitation on 

the appointm ent pow er in addition to the advice and consent o f the Senate.

18
of all “flagrant abuses or deficiencies” within 7 days after discovery would risk jeopardizing ongoing investigations by the agency 

and the Justice Department, many of which would be subject to a 

claim of privilege. That provision should be qualified by a specific 

reference to the possibility of a claim of privilege, or deleted 

entirely from the bill.

3. Finally, the power of the President to remove subordinate 

executive officers must remain intact. The requirement in the bill 

that the President report to Congress the reasons for his removal 

of an Inspector General would infringe on this power and should 

be eliminated.

J o h n M . H a r m o n

Acting Assistant Attorney General

Office o f Legal Counsel

19