Order Code RS22981
November 5, 2008
The Special Inspector General for the
Troubled Asset Relief Program (SIG TARP)
Vanessa K. Burrows
American Law Division
This report discusses the Special Inspector General provisions in the Emergency
Economic Stabilization Act of 2008, H.R. 1424, which was enacted as P.L. 110-343 on
October 3, 2008. This Act created a Special Inspector General (SIG) for the Troubled
Asset Relief Program (TARP). This report will compare the duties and authorities of
the SIG TARP to those of the Special Inspector General for Iraq Reconstruction (SIGIR)
and the Special Inspector General for Afghanistan Reconstruction (SIGAR), as well as
statutory IGs under the Inspector General Act of 1978, as amended (IG Act).
Congress has established statutory offices of inspectors general (IGs) in many
executive and legislative branch agencies, as well as two special IGs for programs and
operations funded with amounts appropriated for the reconstruction of Iraq and
Afghanistan.1 The four principal responsibilities of IGs are: (1) conducting and
supervising audits and investigations; (2) providing coordination and recommending
policies for activities designed to promote economy and efficiency in agency programs
and operations; (3) preventing and detecting fraud, waste, and abuse; and (4) keeping the
agency head and Congress fully and currently informed about problems and deficiencies
relating to such programs and recommending corrective actions.2 P.L. 110-343 established
an additional special IG for the Troubled Asset Relief Program (SIG TARP), which will
address the purchase and insurance of troubled assets.
The provisions in P.L. 110-343 establishing the SIG TARP are similar to the IG
provisions for SIGIR and SIGAR in many respects. However, there are important
substantive distinctions between these three IGs, which this report will refer to
collectively as the “special IGs,” as well as between the SIG TARP and statutory IGs
Provisions establishing SIGIR and SIGAR are located at 5 U.S.C. App. § 8G note. Provisions
establishing statutory IGs are codified at 5 U.S.C. App.
5 U.S.C. App. § 4(a).
created under the IG Act.3 Due to the ambiguous nature of the statutory language in P.L.
110-343, the scope of the powers and authorities of the SIG TARP is not clear, as
Appointment and Removal. The SIG TARP will be a presidentially appointed
and Senate confirmed IG, selected “on the basis of integrity and demonstrated ability in
accounting, auditing, financial analysis, law, management analysis, public administration,
or investigations.”4 Unlike statutory IGs under § 3 of the IG Act, who are also
presidentially appointed and Senate confirmed, there is no provision in P.L. 110-343 that
requires the SIG TARP to be appointed “without regard to political affiliation and solely”
on the basis of the skills listed above. Although the absence of the additional IG Act
language regarding political affiliation and appointment based only on job qualification
skills does not change the legal protections that the IG Act and P.L. 110-343 afford to the
SIG TARP, the SIG TARP may be less independent than other IGs as a practical matter,
given that the SIG TARP is not subject to the same appointment constraints.
The nomination of a SIG TARP is required “as soon as practicable” after the
establishment of the TARP and the Troubled Assets Insurance Financing Fund.5 Like
other presidentially appointed and Senate-confirmed IGs, the SIG TARP can be removed
only by the President, and the President must notify Congress of the reasons for the IG’s
removal.6 The President’s reasons need not be given in writing and no time limit is set.
Supervision. Unlike IGs in other agencies, who “shall report to and be under the
general supervision” of the agency head,7 the SIG TARP will not be required to report to,
or be supervised by, the head of any agency, including the Secretary of the Treasury. The
IG Act does not explicitly define the meaning of “general supervision” and its legislative
history does not appear to address the scope of the agency head’s supervisory role. A
court case relying on the legislative history of the IG Act described the agency head’s
supervisory authority over the IG as “nominal.”8 Instead, under one interpretation of the
SIG TARP’s duties and responsibilities, discussed below, the SIG TARP will report only
to Congress and not the agency head, as specified in § 121(f)(1). This reporting
arrangement would be unique among statutory IGs. Additionally, the SIG TARP will
The Treasury Inspector General for Tax Administration (TIGTA), which was carved out of the
Treasury IG and covers a distinct entity within the Treasury Department — the Internal Revenue
Service (IRS) — is another comparable, though not identical, IG. TIGTA is currently the only
statutory IG that exists within an establishment or entity that also has an agency-wide IG in place.
P.L. 110-343, § 121(b)(2). For comparison, SIGAR is the only presidentially appointed, but not
Senate confirmed, IG, while SIGIR is “appointed by the Secretary of Defense, in consultation
with the Secretary of State.” 5 U.S.C. App. § 8G note. However, “[t]he President may appoint
the [SIGIR] to serve as the [SIGAR], in which case the [SIGAR] shall have all of the duties,
responsibilities, and authorities set forth ... with respect to such appointed position.” Id.
P.L. 110-343, § 121(b)(3). SIGIR and SIGAR were required to be appointed “not later than 30
days after the date of the enactment” of their respective acts. See, e.g., P.L. 110-181, § 1229(c).
P.L. 110-343, § 121(b)(4).
IG Act, §§ 3(a), 8G(d).
United States Nuclear Regulatory Commission v. Federal Labor Relations Authority, 25 F.3d
229, 235 (4th Cir. 1994).
have complete discretion in pursuing audits and investigations, and in issuing subpoenas.9
The absence of such supervision provisions does not mean that the TARP itself will be
without an administrator — the Treasury Secretary will be responsible for implementing
the TARP through a newly created Office of Financial Stability.10
The SIG TARP appears to possess greater latitude in pursuing audits and
investigations than the Treasury IG, as the Treasury IG is one of six IGs that may be
prevented by an agency head from initiating, carrying out, or completing an audit or
investigation, or from issuing a subpoena, for specified reasons such as preventing
disclosure of national security matters.11
In contrast to the SIG TARP, the other special IGs report to, and are supervised by,
the Secretary of State and the Secretary of Defense. SIGIR and SIGAR are also required
to keep the Secretaries of State and Defense “fully and currently informed about problems
and deficiencies” in program administration and the need for and progress on corrective
action.12 Additionally, SIGIR and SIGAR must coordinate with the IGs for the
Departments of State and Defense, and the United States Agency for International
Development IG “in carrying out the duties, responsibilities, and authorities of the
Inspector General.” The provisions for the SIG TARP do not require coordination with
the Treasury IG or other IGs.
Duties and Responsibilities. Section 121(c)(3) of P.L. 110-343 provides that
the SIG TARP “shall also have the duties and responsibilities of inspectors general under
the Inspector General Act of 1978.” On one hand, this provision could mean that the SIG
TARP would be responsible for all of the IG duties outlined in the IG Act, presumably
as amended, even those that reference interaction with the head of an establishment or
those that reference responsibilities not specifically delineated in P.L. 110-343. However,
it appears more likely that § 121(c)(3)’s reference to duties and responsibilities may be
limited to those under § 4 of the IG Act, which is entitled “Duties and responsibilities;
report of criminal violations to Attorney General.”
It is conceivable that the executive branch would raise constitutional objections to the direct
reporting requirement for the Inspector General. However, Congress has imposed direct
reporting requirements on executive branch officials since the first Congress. CRS Report RL
33667, Presidential Signing Statements: Constitutional and Institutional Implications, by T.J.
Halstead. Additionally, in Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court
established a two-step balancing test for addressing separation of powers concerns in such
situations. First, the President must establish that the congressional action interferes with a core
power. If so, Congress must show a necessity for its action to overcome the interference.
Ultimately, given that removal power remains within the executive branch, the President will be
able to perform its constitutional duty to “take care that the laws be faithfully executed.”
Morrison, 487 U.S. at 686, 694-95; U.S. CONST. art. II, § 3. In the IG context, the executive
branch would “retain ample authority to assure that the [IG] is competently performing his or
her statutory responsibilities.” Morrison, 487 U.S. at 692.
P.L. 110-343, § 101(a)(3).
IG Act § 8D. If the Treasury Secretary were to exercise this power over the Treasury IG, the
Secretary must notify the Treasury IG in writing of the reasons for exercising such power. The
Treasury IG, in turn, must send this notification to congressional committees within 30 days.
See, e.g., P.L. 110-181, § 1229(a)(3).
The provision that grants the SIG TARP the same duties and responsibilities as those
of IGs under the IG Act also appears in the acts that created SIGIR and SIGAR. This
provision seems to bridge some, but not all, of the differences between the authorities of
the special IGs and IGs created under the IG Act. If interpreted broadly, this provision
will likely encompass the powers, duties, and responsibilities in certain sections of the IG
Act, including, but not limited to
§§ 4(a)(2) - (a)(5), which encompass general IG duties and the
responsibility to “keep the head of such establishment and the Congress
fully and currently informed, by means of the reports required by section
5 and otherwise, concerning fraud and other serious problems, abuses,
and deficiencies relating to the administration of programs and
§ 4(d), which requires IGs to report expeditiously to the Attorney General
when there exist “reasonable grounds to believe there has been a
violation of Federal criminal law.”
The “and otherwise” language in the requirement that IGs keep Congress “fully and
currently informed” has come to be understood in practice to include testifying at
congressional hearings, direct communications with Members and staff, various selective
or specialized reporting techniques, and responses to congressional inquiries for
information, audits, and reports (both verbal and written).
Depending on how § 121(c)(3) is interpreted, it is possible that the SIG TARP’s
responsibilities will not encompass § 4(a)(1) of the IG Act. That section provides that IGs
are “to provide policy direction for and to conduct, supervise, and coordinate audits and
investigations relating to the programs and operations of such establishment.” Since the
provisions creating the SIG TARP contain specific language with regard to conducting,
supervising, and coordinating audits and investigations, and this specific language does
not mention “policy direction,” this provision of the IG Act would not seem to be
included in the duties mentioned in § 121(c)(3).
Also, § 121(c)(3) of P.L. 110-343 will not necessarily encompass the whistleblower
protections in § 7 of the IG Act. These provisions address complaints or information
provided by a whistleblowing employee, the disclosure of a whistleblower’s identity, and
reprisals threatened or taken against a whistleblower. Under the IG Act, not every
complaint must be investigated, and the IG has discretion in accepting complaints from
individuals other than employees. However, it appears that IGs are willing to accept
complaints from anyone, not just employees, and the legislative history of the IG Act does
not prohibit IGs from receiving and acting on information or complaints from any source.
On a related note, P.L. 110-343 provides that the Financial Stability Oversight Board, as
established by the legislation, will be responsible for “reporting any suspected fraud,
misrepresentation, or malfeasance” to the SIG TARP or the Attorney General.13
P.L. 110-343, § 104(a)(3). Additionally, the Comptroller General must submit reports on “the
activities and performance of the TARP and of any agents or representatives of the TARP” to the
SIG TARP at least every 60 days. P.L. 110-343, § 116(a)(3).
However, a whistleblower with information concerning the possible existence of
illegal activities or mismanagement regarding the purchase or insurance of troubled assets
could conceivably be covered by the IG Act § 7 protections if he or she reported the
information to the Treasury IG, as opposed to the SIG TARP. The acts that created SIGIR
and SIGAR do not contain whistleblower protections either.
SIG TARP Reports. If the SIG TARP’s duties and responsibilities are interpreted
to be confined to those in § 4 of the IG Act, the above cross reference to “the reports
required by section 5” in § 4(a)(5) of the IG Act appears to subject the SIG TARP to the
IG Act § 5 reporting requirements as well. However, it is not clear as to whether the SIG
TARP would need to submit the reports in § 5 of the IG Act in addition to the reports
required in P.L. 110-343 or whether the SIG TARP would only be responsible for the
required reports set forth in P.L. 110-343.
For example, § 5(d) of the IG Act requires establishment IGs to immediately report
“particularly serious or flagrant problems, abuses, or deficiencies” to the head of the
establishment whenever the IG becomes aware of such issues. The head of the
establishment then must send the report to the appropriate congressional committees
within seven days, along with the establishment head’s comments in his or her own
report. Since P.L. 110-343 requires the SIG TARP to report to Congress only, and not to
an establishment head, it is not clear if the SIG TARP would be required to comply with
those reporting requirements in § 5(d) of the IG Act. If P.L. 110-343 is interpreted to
include the reporting requirements in § 5 of the IG Act, then the SIG TARP could be
required to submit certain reports to the establishment head, which would appear to be the
Secretary of the Treasury, as TARP itself has not been designated an establishment.
Section 121(f) of P.L. 110-343 specifies certain reporting requirements for the SIG
TARP, including a report 60 days after the SIG’s confirmation by the Senate and every
quarter thereafter. The report must include “a detailed statement of all purchases,
obligations, expenditures, and revenues associated with” the TARP. The specificity of
the language of this report provision could be interpreted to imply that the “duties and
responsibilities” provision in § 121(c)(3) would not extend to the reporting requirements
set out in § 5 of the IG Act, which provides that the IG office must prepare semiannual
reports and submit them to the head of the establishment, who in turn must transmit them
to appropriate congressional committees with his or her own report.14 Alternatively, the
IG Act § 5 reports could be required in addition to the reports set out in P.L. 110-343.
There is no explicit requirement in P.L. 110-343 that the Treasury Secretary (or
anyone else) be allowed to comment on the reports that the SIG TARP submits to
Congress. Although there may be other reporting requirements with respect to TARP,
they would not be intended to respond to SIG concerns or criticisms. SIGAR and SIGIR
have such requirements enabling the Secretaries of State and Defense to submit comments
to the appropriate congressional committees, as well as requirements that the reports be
made public, and even published on a website.15 The IG Act also provides that the head
of the establishment must make the semiannual IG reports and the semiannual
5 U.S.C. §§ 5(a)-(b).
See, e.g., P.L. 110-181, §§ 1229(i)-(k). The President can waive the public availability
requirement of the SIGIR and SIGAR reports for national security reasons.
establishment head reports available to the public, on request, within 60 days of the
establishment head’s transmission of the reports to the appropriate congressional
Resources. Section 121(d) of P.L. 110-343 states that the SIG TARP will have
the authorities of § 6 of the IG Act, which provides in subsection (c) that the head of an
establishment must give the IG office within the establishment adequate office space,
equipment, supplies, and other services. It could be argued that the Secretary of the
Treasury is the head of the establishment in which the TARP is located, as § 11(2) of the
IG Act defines “establishment” to include the Treasury. In addition, § 6(a)(3) of the IG
Act provides that the IG is authorized “to request information or assistance as may be
necessary for carrying out the duties and responsibilities provided by the IG Act from any
Federal, State, or local government agency or unit thereof.” It is not clear if “assistance”
would cover office space, however, if it does, the SIG TARP would appear to be able to
request facilities and resources from the Treasury Department. In contrast, P.L. 110-343
specifically provides that “[t]he Secretary shall provide the Comptroller General with
appropriate space and facilities in the Department of the Treasury as necessary to facilitate
oversight of the TARP until the termination date established in section 120.”17
The provisions in the act creating SIGAR enabled that special IG to rely on the
personnel, facilities, and resources of another special IG, SIGIR.18 SIGIR, in turn, could
rely on the Department of State or the Department of Defense for equipment, office
supplies, and communications facilities and services within either agency, including at
appropriate locations of the Department of State in Iraq.19
Termination. Section 121(h) establishes that the office of the SIG TARP “shall
terminate on the later of — (1) the date that the last troubled asset acquired by the
Secretary under section 101 has been sold or transferred out of ownership or control of
the Federal Government; or (2) the date of expiration of the last insurance contract issued
under section 102.”20 In contrast, SIGIR and SIGAR “shall terminate 180 days after the
date on which amounts appropriated or otherwise made available for the reconstruction
of Iraq [or Afghanistan] that are unexpended are less than $250,000,000.”21 The
continuation of the SIG TARP appears fundamentally different than that of the other
special IGs, as the reconstruction of Iraq and Afghanistan accounts are expected to be
limited in time and amount. The SIG TARP may be a continuing necessity to audit the
purchase, transfer, sale, and insurance of troubled assets.
5 U.S.C. App. § 5(c).
P.L. 110-343, § 116(a)(2)(A).
P.L. 110-181, §§ 1229(h)(4), (6).
See, e.g., P.L. 108-106, § 3001(h)(5).
P.L. 110-343, § 121(h).
P.L. 110-181, § 1221(h), § 1229(o).