The Government Accountability Office's (GAO's) structure is unique. The agency is part of the legislative branch, but has a leader—the Comptroller General (Comptroller)—who is appointed by the President with the advice and consent of the Senate to a 15-year term and, unlike any other officer in the federal government, may be removed only for cause after enactment of a joint resolution or through impeachment.
There are historical reasons for this arrangement. Created as an "establishment . . . independent of the executive departments" in 1921, GAO combined the auditing, accounting, and claims-settlement functions that executive officers in the Treasury Department had previously exercised, with new investigative and reporting functions in service to Congress's power of the purse that were legislative in nature. While GAO's constitutional status in either the legislative or executive branches may not have been entirely clear at the time (it was not until 1945 that Congress explicitly identified GAO by law as a legislative branch agency), it appears that Congress may have believed that the Comptroller exercised powers that, as a legal matter, required presidential appointment but, as a policy matter, called for insulation from presidential removal and control.
Those powers have changed substantially since 1921. The modern GAO has largely evolved into an agent of Congress, with some, though perhaps not all, of its more "executive" powers reassigned or disabled by statutes and court decisions. This Sidebar describes this progression from an agency of mixed powers and functions to one that primarily aids Congress in its legislative functions.
From the outset, Congress recognized that officers tasked with accounting for and auditing the financial transactions of the United States would benefit from some degree of independence from the President if they were to serve as a meaningful check on executive spending. James Madison, for example, argued that there were "strong reasons" why these officers "should not hold [their] office at the pleasure of the Executive branch of government." Madison viewed the first executive branch comptrollers and auditors, including the Comptroller of the Treasury (Treasury Comptroller) who was given authority to settle accounts and claims against the government, as engaging not solely in either executive or legislative functions but "partak[ing]" of a judicial function requiring impartiality and independence.
Although the Treasury Comptroller was not given explicit removal protections, the executive branch often treated the office with some sense of independence, and Congress ultimately made its decisions on the settlement of public accounts "final and conclusive" on the rest of the executive branch. Thomas Jefferson, for example, asserted that as President, he had "no right to interfere in the least" with the Treasury Comptroller's "settlement of the accounts at Treasury." President Andrew Jackson also viewed himself as possessing "no power, except by removal" over the Treasury Comptroller's decisions, and President Polk similarly stated that such decisions were "subject to revision only by Congress or the proper courts." President Grover Cleveland, however, sought to assert control over the actions of the Treasury Comptroller in 1890 by threatening to remove him if he was "unwilling to be guided by [the President's] advice," endangering the traditional view of the Treasury Comptroller's independence.
Congress was cognizant of the Cleveland episode when it enacted the Budget and Accounting Act of 1921 (1921 Act). That law abolished the Treasury Comptroller and other auditors and transferred their functions to a newly created agency, GAO (then known as the General Accounting Office), that would be "an establishment of the Government . . . which shall be independent of the executive departments." The GAO's powers over federal accounts, vested in the newly created Comptroller, were vast and comprised "all powers and duties" previously vested in the Treasury Comptroller and other executive branch auditors including the authority to countersign warrants to disburse funds, as well as the authority to "settle and adjust . . . [a]ll claims and demands whatever by the Government of the United States or against it" and issue regulations establishing the "procedure for administrative appropriation, and fund accounting" within the executive branch. On the legislative side, the Comptroller would "make such investigations and reports as shall be ordered by either House of Congress" or by "any committee of either House having jurisdiction over revenue, appropriations, or expenditures." The GAO stated in 1924 that a "more comprehensive" delegation of jurisdiction over "claims or accounts in which the United States is concerned could hardly be drafted."
Under the 1921 Act, the President appointed the Comptroller with the advice and consent of the Senate. The legislative history in the House suggests that this choice may have been made in light of the Comptroller's "semijudicial" functions. The House, the sponsor of the Act stated, "was guided by a single thought"—that the Comptroller "should be placed on a plane somewhat comparable to the position occupied by Federal judges." Given the office's broad authorities and independence, Congress also viewed the Comptroller (as it viewed other independent agency heads created during that period who also exercised quasi-legislative and quasi-judicial powers) as an "officer" (and apparently a "principal officer") whom, under the Appointments Clause, could not be appointed by Congress.
Congress also expressed its desire that the Comptroller be "absolutely independent of the Executive in [his] decisions," and used removal language to achieve this goal. A previous version of the bill that became the 1921 Act would have made the Comptroller removable only for cause by a concurrent resolution, meaning removal would have been entirely in the hands of the House and Senate with no role for the President. President Woodrow Wilson vetoed that proposal on the ground that permitting removal of a presidentially appointed officer by concurrent resolution infringed on his Article II removal power. The following Congress, the House-passed bill again provided for removal by concurrent resolution, but in conference committee, that language was changed to provide for removal through a joint resolution. The 1921 Act therefore allowed Congress to initiate the removal but ultimately required agreement between Congress and the President or a congressional supermajority able to override a veto to carry out the removal. This removal provision exists to this day.
From 1921 to the 1980s, the Comptroller's authority grew through legislation that empowered the agency to audit government corporations; expanded its investigatory jurisdiction to review the efficiency of government programs; provided the agency with a role in combating impoundments; and strengthened the agency's access to information. As of 1964, courts were still describing the GAO as "occupying a dual position" and performing a "two-fold function": investigating and reporting on behalf of Congress and acting as the nation's chief accounting officer "as a member of the executive branch." Even so, Congress had by then expressed its view—through various enactments—that despite certain obligations to the executive branch, the GAO was an "agent of Congress."
Consistent with this conceptual evolution, legislation proposed in 1978 would have increased congressional involvement in the appointment of the Comptroller by expressly providing that the President "shall" nominate a Comptroller "from a list of persons" provided to him by a congressional commission consisting of House and Senate leadership. DOJ objected to this change. It acknowledged that "the [Comptroller] may be appointed" with direct congressional involvement "to the extent he performs legislative duties." Still, DOJ continued, it objected to the proposed method of appointment "to the extent that the [Comptroller] performs certain functions beyond this legislative sphere" that could be carried out only by an officer nominated by the President without congressional involvement, including the Comptroller's authority to settle all claims and accounts of the United States. The House passed the bill despite these objections, with its sponsor noting that "notwithstanding the fact that the Justice Department thinks most things are unconstitutional, we ought to adopt this legislation." The Senate did not do so.
A new version of the bill, introduced the next Congress, responded to the DOJ objections, but its sponsors still intended it to implement "the special interest of both Houses in the choice of an individual whose primary function is to provide assistance to the Congress." This 1980 version, which ultimately became law, did not include the 1978 proposal's language that had unequivocally mandated appointment by the President from a list of potential Comptroller nominees submitted by Congress. Under the enacted language, the President would still appoint the Comptroller with the advice and consent of the Senate, but the congressional commission would now "recommend" at least three potential nominees to the President. The law further provided that "[t]he President may ask the commission to recommend additional individuals." This law continues to govern the process for appointing the Comptroller.
The current appointment provision gives rise to a question of whether the President must select a nominee from the list provided by the congressional commission or whether he retains discretion to nominate a person of his own choosing. While "recommendations" are generally advisory, Congress's decision to authorize the President to "ask the commission to recommend additional individuals," may suggest that if the President is not satisfied with the recommendations, he should respond by seeking additional names from Congress rather than by nominating someone of his own selection.
The legislative history of the 1980 bill suggests that the Senate did not intend the law to force the President to appoint from the provided list. According to the Senate report associated with the law,
the bill's appointment procedure preserves the President's authority under the Appointments Clause. The President retains the sole authority of nomination, and may, in his discretion, select for appointment an individual whose name is not among those on lists submitted to the President by the Commission. However, it is expected that the President would give great weight to the Commission's recommendations.
The House was more circumspect in its interpretation of the appointment provision. It described the provision as a "restriction" on the President's appointment power, but one that "avoids the constitutional objections to legislative participation in the appointment process that have been raised by the executive branch" (presumably a reference to DOJ's objections to the 1978 proposal). According to the House report:
The President retains the sole authority of nomination, and the Senate retains the role of advice and consent. Inasmuch as the President may request additional names if he finds the Commission's original submissions unacceptable, no absolute limitation is placed on his freedom of choice.
This language could suggest the House's view was that, if the President is dissatisfied with the individuals recommended to him by Congress, he should continue to ask for more names until Congress provides him with a recommendation that he supports.
As a matter of practice, all three Comptrollers nominated by the President since the enactment of the 1980 law were recommended by Congress.
Congress continued to delegate GAO additional authorities throughout the 1980s, including through the Competition in Contracting Act of 1984 (CICA), which authorized GAO to review bid protests in the awarding of government contracts, and later the Balanced Budget and Emergency Deficit Control Act of 1985 (Balanced Budget Act). The Balanced Budget Act, which effectively gave GAO authority to direct spending reductions, ultimately led to a major constitutional turning point in the history of GAO and a curtailment of the Comptroller's powers by the Supreme Court.
The Balanced Budget Act set a maximum annual deficit that, if breached, required the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) to submit a joint report to GAO that outlined the budgetary cuts necessary to bring the deficit into compliance with the law's annual limit. With "due regard" for that report but still exercising his own "independent judgment and evaluation," the Comptroller was then to submit a report to the President directing program-specific spending reductions to be made.
In the 1986 decision of Bowsher v. Synar, the Supreme Court invalidated these provisions as an unconstitutional exercise of executive power by an official removable, and therefore controlled by, Congress. In doing so, the Court made two important determinations about the Comptroller's status and powers. First, the Court determined that because the Comptroller is removable by a joint resolution and had historically been viewed as a member of the legislative branch, the Comptroller is "controlled by" and "subservient to" the Congress. Second, according to the Court, the Comptroller's powers under the Balanced Budget Act to "interpret" and "implement" the statute, and his "ultimate authority to determine the budget cuts to be made," constituted "execution of the law"—an executive function. "By placing the responsibility for execution of the [Balanced Budget Act] in the hands of an officer who is subject to removal only by itself," the Court concluded, "Congress, in effect, has retained control over the execution of the Act, and has intruded into the executive function." Rather than invalidating the 1921 Act's removal provision, the Court instead severed and invalidated the offending deficit reduction powers of the Balanced Budget Act.
Bowsher only invalidated the Balanced Budget Act provisions, but its reasoning cast doubt on the Comptroller's ability to exercise other powers that could be said to be of an "executive nature" or that could be viewed as "execution of the law." While the Bowsher majority determined that it did not need to evaluate GAO's non-Balanced Budget Act statutory functions, labeling that analysis a "thicket we need not enter," the dissent warned that the Court's holding would reach more broadly. "Many" of the Comptroller's other duties, the dissent asserted, "appear to meet the majority's test for plainly 'executive' functions," including "some of the most traditional duties of the Comptroller General, such as approving expenditure warrants, rendering conclusive decisions on the legality of proposed agency disbursements, and settling financial claims by and against the Government."
Acknowledging these concerns, the Senate identified around 45 statutory provisions that delegated authority to the Comptroller that could be "affected" by the Bowsher holding, presumably because they could qualify as "executive in nature" or entail "execution of the law." These authorities included the Comptroller's claims settlement authority, accountment settlement authority, and authority to promulgate accounting standards and procedures for executive branch agencies.
Despite the passage of nearly four decades since Bowsher, questions remain about which powers the Comptroller may exercise, although courts have rejected constitutional challenges to some authorities. A pair of decisions by federal appellate courts released shortly after the Supreme Court's decision, however, held that Bowsher's limitations on GAO are perhaps not as extensive as the apparently broad language in that case may suggest. In constitutional challenges to CICA's imposition of a stay of contract processes until GAO completes a bid protest, the U.S. Courts of Appeals for the Third and Ninth Circuits both suggested that merely interpreting and implementing the law is not enough to invalidate an exercise of power by the Comptroller. "Many laws," the Third Circuit reasoned, "specifically delegate authority either to the judiciary or to Congress, in the administration of which these branches must interpret the law and may even make binding decisions . . . [and] [w]e cannot believe that the Supreme Court intended [Bowsher] to overrule these cases and to make as drastic a change in our constitutional system." Instead, the Ninth Circuit summarized Bowsher as determining
improper congressional action to be the exercise of ultimate authority over an executive official, or a final disposition of the rights of persons outside the legislative branch. Put another way, the critical issue is whether Congress or its agent seeks to control (not merely to 'affect') the execution of its enactments without respect to the Article I legislative process.
Both courts of appeals held that the arrangement did not violate the separation of powers. As the Ninth Circuit reasoned, the stay provision in CICA did not give the Comptroller "control or ultimate authority in the disposition of a particular issue" (e.g., a contract award).
In 1995 and 1996, legislation transferred a number of GAO functions to executive branch agencies. It is not entirely clear whether these amendments were a delayed reaction to the holding in Bowsher or were instead motivated by a congressional desire to reduce GAO functions alongside a significant reduction in GAO funding. Legislative history, however, does suggest the House's view that the transferred functions were "not legislative activities and detract from the essential purposes of the agency." Whatever the motivation, a notable aspect of these laws was the transfer of GAO's claims settlement authority—along with related powers, such as GAO's mandate to certify payments from the Judgment Fund—to OMB, Treasury, and other executive branch agencies. (As noted above, the claims settlement authority had been one of the Comptroller's original delegations under the 1921 Act.)
GAO today primarily serves a legislative function, aiding Congress in the exercise of its legislative, oversight, and appropriations powers. The Comptroller's audit, investigatory, and reporting powers, for example, are the type of "investigative and informative" powers that the Supreme Court has viewed as legislative in nature. The Comptroller also possesses some powers that could arguably be classified as executive, including, for example, long-standing authority to settle federal accounts; initiate lawsuits to enforce the release of impounded funds; relieve disbursing officers of legal liability; and assess civil penalties under the Energy Policy and Conservation Act. While a court has not directly opined on whether these types of powers are executive, the Supreme Court recently clarified its view of what constitutes executive power—as well as the consequences of such a categorization—in Trump v. Slaughter. There, the Court held that promulgating "substantive rules that carry the force of law," enforcing compliance with the law through in-house adjudications, and filing civil suits "on behalf of the United States" are the types of functions that "fall within the heartland of executive power" and that must be carried out by an official subject to presidential control. The Court contrasted these powers with powers "of an investigative and informative nature" exercised "merely in aid of the legislative function of Congress." With respect to the Comptroller, then, the exercise of what some may view as executive functions by an agent of Congress may result in continued questions under both Bowsher and Slaughter.