Role of Attorney General in Advising Administrative Agencies

According to 28 USCS § 512, an attorney general can advise an administrative agency when the head of that executive department requires him/her to do so.  This advice will be confined to questions of law and s/he cannot advice the agency on factual matters.[i]  To make an opinion the attorney general cannot investigate into the matter and find evidence related to facts.  While making a request for advice, the head of the administrative department must clearly state the following things:

  • The important facts and issues and the preferred advice;[ii]
  • The facts from which the question of law arises are true;[iii]
  • The question of law to be answered along with the facts involved;[iv]
  • That the U.S. has some interest in the requested matter and the opinion.[v]

The attorney general is not permitted to give advice on the following matters or situations:

  • At the instance of the parties where no further action is to be taken;[vi]
  • To review the decisions of the executive department;[vii]
  • Opinion as to sufficiency of grounds upon which a decision is based;[viii]
  • Opinion as to the jurisdiction of the court;[ix]
  • On the convenience of bringing to court an appeal pending before another department;[x]
  • To interpret departmental regulations;[xi]
  • Authorization to render opinions upon judicial questions;[xii]
  • Where a conclusion is already reached and only a confirmation is needed;[xiii]
  • On a matter which is already considered and decided by the concerned department;[xiv]
  • If the questions are hypothetical;[xv]
  • To advise on the opinions of predecessors;[xvi]
  • If the issue or the case is no longer pending.[xvii]

The question to be answered by an attorney general must arise from the administration of the department.  The attorney general should only give opinion on request by the departmental head and only regarding matters concerning official powers and duties.[xviii]  The question to be answered must be pending and for which the head of the department was unable to reach a conclusion.[xix]

In United States Bedding Co. v. United States, 55 Ct. Cl. 459, 460 (Ct. Cl. 1920), it was held that the advice and opinion of the attorney general will have a controlling effect.  But it is the discretion of the head of the department whether or not to accept it.[xx]  Further, the courts are also not bound by the opinion of the attorney general and can rule on the same matter.[xxi]

[i] 25 U.S. Op. Atty Gen. 584 (1906)

[ii] 16 Op. Atty Gen. 94

[iii] 10 Op. Atty Gen. 267

[iv] 39 Op. Atty Gen. 425

[v] 19 Op. Atty Gen. 556

[vi] 3 Op. Atty Gen. 39

[vii] Id.

[viii] 10 Op. Atty Gen. 347

[ix] 11 Op. Atty Gen. 407

[x] 15 Op. Atty Gen. 574

[xi] 20 Op. Atty Gen. 649

[xii] 38 Op. Atty Gen. 1

[xiii] 38 Op. Atty Gen. 149

[xiv] 39 Op. Atty Gen. 67

[xv] 26 Op. Atty Gen. 609

[xvi] 26 Op. Atty Gen. 609

[xvii] 27 Op. Atty Gen. 37

[xviii] 11 Op. Atty Gen. 431

[xix] 37 Op. Atty Gen. 261; 39 Op. Atty Gen. 67

[xx] 32 Op. Atty Gen. 270

[xxi] Pueblo of Taos v. Andrus, 475 F. Supp. 359, 364 (D.D.C. 1979)


Inside Role of Attorney General in Advising Administrative Agencies