                                                                         February 21, 1977


77-8         MEMORANDUM OPINION FOR THE
             ATTORNEY GENERAL
             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 opin­
ion 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 o f the bill, discusses the constitutional problems pre­
sented 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
Governm ent 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 respon­
sibilities. 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 o f corrective actions.
   Each Inspector General is required to prepare and submit to Con­
gress, as well as to the head of the agency, a variety of reports, and is

   1 T h e D epartm ents included are A griculture, C om m erce, Housing and Urban D evelop­
m ent, Interior, L abor, and T ransportation.
   2 T h e o th er establishm ents are th e E nergy R esearch and D evelopm ent A dm inistration,
the E n vironm ental Protection A gency, the G eneral Services Adm inistration, and the
N ational A eronautics and Space A dm inistration.

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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 Inspec­
tor 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 acknowl­
edged that Congress has enacted numerous statutes with similar require­
ments, 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 partic­
ular, 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 C on­
gress, 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
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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 o f 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 o f the reasons for his removal
o f an Inspector General constitutes an improper restriction on the
President’s exclusive power to remove Presidentially appointed execu­
tive 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
rem ove a subordinate appointed officer within one of the executive
departments is a. power reserved to the President acting in his discre­
tion.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 w ith the proposed legislation is that the In­
spector 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 o f 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 o f 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 con­
     tents of these reports.
        2. The constitutional principle o f executive privilege must be
     preserved. The provision in the bill requiring reports to Congress

   s W e also question the validity o f the requirem ent that the President appoint each
In sp e cto r G eneral “ w ithout regard to political affiliation.” T his implies som e lim itation on
the appointm ent p o w er in addition to the advice and consent o f the Senate.

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of all “flagrant abuses or deficiencies” within 7 days after discov­
ery 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.
                                    John M . H   arm on
                           Acting Assistant Attorney General
                                          Office o f Legal Counsel




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