{"database": "openregs", "table": "crs_reports", "rows": [["LSB11486", "Appointing the Comptroller General: Law and History", "2026-10-07T04:00:00Z", "2026-10-08T16:23:26Z", "Active", "Posts", "Todd Garvey", null, "The Government Accountability Office\u2019s (GAO\u2019s) structure is unique. The agency is part of the legislative branch, but has a leader\u2014the Comptroller General (Comptroller)\u2014who 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. \nThere are historical reasons for this arrangement. Created as an \u201cestablishment . . . independent of the executive departments\u201d 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\u2019s power of the purse that were legislative in nature. While GAO\u2019s 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.\nThose 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 \u201cexecutive\u201d 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.\nHistorical Development of the GAO and Comptroller\nFrom 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 \u201cstrong reasons\u201d why these officers \u201cshould not hold [their] office at the pleasure of the Executive branch of government.\u201d 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 \u201cpartak[ing]\u201d of a judicial function requiring impartiality and independence. \nAlthough 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 \u201cfinal and conclusive\u201d on the rest of the executive branch. Thomas Jefferson, for example, asserted that as President, he had \u201cno right to interfere in the least\u201d with the Treasury Comptroller\u2019s \u201csettlement of the accounts at Treasury.\u201d President Andrew Jackson also viewed himself as possessing \u201cno power, except by removal\u201d over the Treasury Comptroller\u2019s decisions, and President Polk similarly stated that such decisions were \u201csubject to revision only by Congress or the proper courts.\u201d 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 \u201cunwilling to be guided by [the President\u2019s] advice,\u201d endangering the traditional view of the Treasury Comptroller\u2019s independence.\nCongress 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 \u201can establishment of the Government . . . which shall be independent of the executive departments.\u201d The GAO\u2019s powers over federal accounts, vested in the newly created Comptroller, were vast and comprised  \u201call powers and duties\u201d 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 \u201csettle and adjust . . . [a]ll claims and demands whatever by the Government of the United States or against it\u201d and issue regulations establishing the \u201cprocedure for administrative appropriation, and fund accounting\u201d within the executive branch. On the legislative side, the Comptroller would \u201cmake such investigations and reports as shall be ordered by either House of Congress\u201d or by \u201cany committee of either House having jurisdiction over revenue, appropriations, or expenditures.\u201d The GAO stated in 1924 that a \u201cmore comprehensive\u201d delegation of jurisdiction over \u201cclaims or accounts in which the United States is concerned could hardly be drafted.\u201d  \nUnder 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\u2019s \u201csemijudicial\u201d functions. The House, the sponsor of the Act stated, \u201cwas guided by a single thought\u201d\u2014that the Comptroller \u201cshould be placed on a plane somewhat comparable to the position occupied by Federal judges.\u201d Given the office\u2019s 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 \u201cofficer\u201d (and apparently a \u201cprincipal officer\u201d) whom, under the Appointments Clause, could not be appointed by Congress.  \nCongress also expressed its desire that the Comptroller be \u201cabsolutely independent of the Executive in [his] decisions,\u201d 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. \nFrom 1921 to the 1980s, the Comptroller\u2019s 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\u2019s access to information. As of 1964, courts were still describing the GAO as \u201coccupying a dual position\u201d and performing a \u201ctwo-fold function\u201d: investigating and reporting on behalf of Congress and acting as the nation\u2019s chief accounting officer \u201cas a member of the executive branch.\u201d Even so, Congress had by then expressed its view\u2014through various enactments\u2014that despite certain obligations to the executive branch, the GAO was an \u201cagent of Congress.\u201d \nConsistent 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 \u201cshall\u201d nominate a Comptroller \u201cfrom a list of persons\u201d provided to him by a congressional commission consisting of House and Senate leadership. DOJ objected to this change. It acknowledged that \u201cthe [Comptroller] may be appointed\u201d with direct congressional involvement \u201cto the extent he performs legislative duties.\u201d Still, DOJ continued, it objected to the proposed method of appointment \u201cto the extent that the [Comptroller] performs certain functions beyond this legislative sphere\u201d that could be carried out only by an officer nominated by the President without congressional involvement, including the Comptroller\u2019s authority to settle all claims and accounts of the United States. The House passed the bill despite these objections, with its sponsor noting that \u201cnotwithstanding the fact that the Justice Department thinks most things are unconstitutional, we ought to adopt this legislation.\u201d The Senate did not do so.  \nA new version of the bill, introduced the next Congress, responded to the DOJ objections, but its sponsors still intended it to implement \u201cthe special interest of both Houses in the choice of an individual whose primary function is to provide assistance to the Congress.\u201d This 1980 version, which ultimately became law, did not include the 1978 proposal\u2019s 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 \u201crecommend\u201d at least three potential nominees to the President. The law further provided that \u201c[t]he President may ask the commission to recommend additional individuals.\u201d This law continues to govern the process for appointing the Comptroller. \nThe 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 \u201crecommendations\u201d are generally advisory, Congress\u2019s decision to authorize the President to \u201cask the commission to recommend additional individuals,\u201d 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. \nThe 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,\nthe bill\u2019s appointment procedure preserves the President\u2019s 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\u2019s recommendations.\nThe House was more circumspect in its interpretation of the appointment provision. It described the provision as a \u201crestriction\u201d on the President\u2019s appointment power, but one that \u201cavoids the constitutional objections to legislative participation in the appointment process that have been raised by the executive branch\u201d (presumably a reference to DOJ\u2019s objections to the 1978 proposal). According to the House report: \nThe 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\u2019s original submissions unacceptable, no absolute limitation is placed on his freedom of choice.\nThis language could suggest the House\u2019s 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. \nAs a matter of practice, all three Comptrollers nominated by the President since the enactment of the 1980 law were recommended by Congress. \nJudicial and Legislative Narrowing of the Comptroller\u2019s Powers\nCongress 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\u2019s powers by the Supreme Court. \nThe 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\u2019s annual limit. With \u201cdue regard\u201d for that report but still exercising his own \u201cindependent judgment and evaluation,\u201d the Comptroller was then to submit a report to the President directing program-specific spending reductions to be made. \nIn 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\u2019s 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 \u201ccontrolled by\u201d and \u201csubservient to\u201d the Congress. Second, according to the Court, the Comptroller\u2019s powers under the Balanced Budget Act to \u201cinterpret\u201d and \u201cimplement\u201d the statute, and his \u201cultimate authority to determine the budget cuts to be made,\u201d constituted \u201cexecution of the law\u201d\u2014an executive function. \u201cBy placing the responsibility for execution of the [Balanced Budget Act] in the hands of an officer who is subject to removal only by itself,\u201d the Court concluded, \u201cCongress, in effect, has retained control over the execution of the Act, and has intruded into the executive function.\u201d Rather than invalidating the 1921 Act\u2019s removal provision, the Court instead severed and invalidated the offending deficit reduction powers of the Balanced Budget Act. \nBowsher only invalidated the Balanced Budget Act provisions, but its reasoning cast doubt on the Comptroller\u2019s ability to exercise other powers that could be said to be of an \u201cexecutive nature\u201d or that could be viewed as \u201cexecution of the law.\u201d While the Bowsher majority determined that it did not need to evaluate GAO\u2019s non-Balanced Budget Act statutory functions, labeling that analysis a \u201cthicket we need not enter,\u201d the dissent warned that the Court\u2019s holding would reach more broadly. \u201cMany\u201d of the Comptroller\u2019s other duties, the dissent asserted, \u201cappear to meet the majority\u2019s test for plainly executive\u2019 functions,\u201d including \u201csome 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.\u201d\nAcknowledging these concerns, the Senate identified around 45 statutory provisions that delegated authority to the Comptroller that could be \u201caffected\u201d by the Bowsher holding, presumably because they could qualify as \u201cexecutive in nature\u201d or entail \u201cexecution of the law.\u201d These authorities included the Comptroller\u2019s claims settlement authority, accountment settlement authority, and authority to promulgate accounting standards and procedures for executive branch agencies.\nDespite 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\u2019s decision, however, held that Bowsher\u2019s limitations on GAO are perhaps not as extensive as the apparently broad language in that case may suggest. In constitutional challenges to CICA\u2019s 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. \u201cMany laws,\u201d the Third Circuit reasoned, \u201cspecifically 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.\u201d Instead, the Ninth Circuit summarized Bowsher as determining  \nimproper 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\u2019) the execution of its enactments without respect to the Article I legislative process.\nBoth 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 \u201ccontrol or ultimate authority in the disposition of a particular issue\u201d (e.g., a contract award).\nIn 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\u2019s view that the transferred functions were \u201cnot legislative activities and detract from the essential purposes of the agency.\u201d Whatever the motivation, a notable aspect of these laws was the transfer of GAO\u2019s claims settlement authority\u2014along with related powers, such as GAO\u2019s mandate to certify payments from the Judgment Fund\u2014to OMB, Treasury, and other executive branch agencies. (As noted above, the claims settlement authority had been one of the Comptroller\u2019s original delegations under the 1921 Act.)\nGAO today primarily serves a legislative function, aiding Congress in the exercise of its legislative, oversight, and appropriations powers. The Comptroller\u2019s audit, investigatory, and reporting powers, for example, are the type of \u201cinvestigative and informative\u201d 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\u2014as well as the consequences of such a categorization\u2014in Trump v. Slaughter. There, the Court held that promulgating \u201csubstantive rules that carry the force of law,\u201d enforcing compliance with the law through in-house adjudications, and filing civil suits \u201con behalf of the United States\u201d are the types of functions that \u201cfall within the heartland of executive power\u201d and that must be carried out by an official subject to presidential control. The Court contrasted these powers with powers \u201cof an investigative and informative nature\u201d exercised \u201cmerely in aid of the legislative function of Congress.\u201d 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.", "https://www.congress.gov/crs_external_products/LSB/PDF/LSB11486/LSB11486.1.pdf", "https://www.congress.gov/crs_external_products/LSB/HTML/LSB11486.html"]], "columns": ["id", "title", "publish_date", "update_date", "status", "content_type", "authors", "topics", "summary", "pdf_url", "html_url"], "primary_keys": ["id"], "primary_key_values": ["LSB11486"], "units": {}, "query_ms": 0.32280595041811466, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}