The Office of the Attorney General was established by the Judiciary Act of 1789. Act of September 24, 1789, 1 Stat. 73. Section 35 of that Act vested the Attorney General (AG) with plenary authority to "prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned" and to give advice and opinions upon questions of law when requested by the President or the heads of various Departments.

The AG's statutory authority to conduct litigation to which the United States, its departments or agencies is a party was expanded and more fully developed by Congress in 1870 in the same legislation that provided for the creation of the Department of Justice. Act of June 22, 1870, 16 Stat. 162. Among other things, the Act forbade the Secretaries of the Executive Departments to employ other attorneys or outside counsel at government expense, and required them to call upon the Department of Justice ... and no counsel or attorney fees shall hereafter be allowed to any person ... besides the respective district attorneys. . . for services in such capacity to the United States ... unless hereafter authorized by law, and then only on the certificate of the Attorney-General that such services could not be performed by the Attorney-General ... or the officers of the Department of Justice.... Section 17, 16 Stat. 164.

The initial motivation for this legislation was the desire to centralize the conduct and supervision of all litigation in which the government was involved, as well as to eliminate the need for highly-paid outside counsel when government-trained attorneys could perform the same function. Other objectives of the legislation advanced in the congressional debates were to ensure the presentation of uniform positions with respect to the laws of the United States ("a unity of decision, a unity of jurisprudence in the executive law of the United States"), and to provide the AG with authority over lower court proceedings involving the United States so that litigation would be better handled on appeal, and before the Supreme Court. See Cong. Globe, 41st Cong., 2d Sess. 3035-39, 3065-66 (1870). See generally Bell, "The Attorney General: The Federal Government's Chief Lawyer and Chief Litigator, Or One Among Many?", 46 Fordham L. Rev. 1049 (1978); Key, "The Legal Work of the Federal Government," 25 Va. L. Rev. 165 (1938). See also United States v. San Jacinto Tin Co., 125 U.S. 273, 279 (1888) (Attorney General "undoubtedly the officer who has charge of the institution and conduct of the pleas of the United States, and of the litigation which is necessary to establish the rights of the government"); Perry v. United States, 28 Ct. Cl. 483, 491 (1893); Sutherland v. International Insurance Co., 43 F.2d 969, 970-71 (2d Cir. 1930), cert. denied, 282 U.S. 890 (1930).

The present statutory authority vesting plenary litigating authority with the Attorney General, including 28 U.S.C. §§ 516, 519 and 5 U.S.C. § 3106, parallels that found in the 1870 Act. Except as otherwise authorized by law, only attorneys of the Department of Justice under the supervision of the Attorney General may represent the United States or its agencies or officers in litigation. Counsel for other government agencies may not be heard in opposition to the United States. See In re Confiscation Cases, 74 U.S. 454, 458 (1868); The Gray Jacket, 72 U.S. 370, 371 (1866). Nor, in the absence of statutes to the contrary, may any suit be brought on behalf of the United States except by the Attorney General or an attorney under his/her superintendence. Sutherland v. International Ins. Co., supra; F.T.C. v. Guignon, 390 F.2d 323 (8th Cir. 1968); I.C.C. v. Southern Railway Co., 543 F.2d 534 (5th Cir. 1976), reh. en banc denied, 551 F.2d 95 (5th Cir. 1977). The completeness of the Attorney General's authority is further illustrated by the fact that once a matter has been referred to the Department of Justice, the referring agency ceases to have control over it. See United States v. Sandstrom, 22 F. Supp. 190, 191 (N.D. Okla. 1938).

See JM 4-3.000 for additional authorities with respect to the Attorney General's inherent authority to compromise and close civil cases. Presidential Reorganization Plan No. 2 of 1950, 64 Stat. 1261, effected a Hoover Commission type reorganization whereby all functions of other employees and units in the Department, including Presidential appointees, were placed in the Attorney General to be redelegated by him/her. Section 509 of Title 28, which is of continuing effectiveness, parallels the language of Reorganization Plan No. 2 and provides that "[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General …."

[updated April 2018]