When Congress established the federal courts in the Judiciary Act of 1789, it also provided for executive branch officers to represent the interests of the United States in court. Section 35 of the Act required the appointment of “a meet person, learned in the law, to act as attorney-general for the United States.” The attorney general, the government’s chief legal officer, was to represent the federal government in any suit before the Supreme Court as well as provide legal advice to the president and members of the cabinet. The Act further provided for “a meet person learned in the law to act as attorney for the United States” in each judicial district. These officials were not titled in the statute but were commonly referred to as “district attorneys.” In 1948, Congress officially adopted the term “United States attorneys.” The U.S. attorneys were to prosecute crimes and represent the government in civil litigation in the U.S. circuit and district courts. An initial draft of the 1789 Act provided for the district courts to appoint the U.S. attorneys, but the Act as passed omitted that provision, leaving these appointments to the president.

The attorney general was the only member of the president’s cabinet with no department to oversee and no staff. Holders of the office would write all necessary documents in longhand or else hire staff at their own expense. Early attorneys general spent much of their time away from the nation’s capital, Congress not having provided them with regular office space. In addition, for several decades the attorney general had no supervisory authority over the U.S. attorneys. Attorneys general occasionally worked with U.S. attorneys on particular matters, but such instances were rare. Edmund Randolph, the first attorney general, asked Congress, via President George Washington, for legislation that would permit him to supervise the U.S. attorneys as well as to appear in the lower courts in particularly important cases. Randolph and several of his successors failed in this effort, however, despite the support of Presidents Washington, Andrew Jackson, James Polk, and Franklin Pierce. Some scholars have attributed congressional intransigence on the issue to a general antipathy toward a strong centralized mechanism for federal law enforcement.

Beginning in 1820, U.S. attorneys were subject to formal supervision for the first time, but not by the attorney general. Congress established an agent of the comptroller of the Treasury to oversee the enforcement of tax and revenue laws. Although the job required no legal training, it came with the power to direct the U.S. attorneys in cases within the agent’s remit. Ten years later, Congress authorized a legal officer, the solicitor of the Treasury, to assume this role. In the 1850s, Congress added two more executive branch legal officers: an assistant attorney general and a solicitor of the Court of Claims (a federal court handling monetary claims against the United States). After the Civil War, Congress established solicitors of the Navy, the War Department, the Post Office, Internal Revenue, and the Department of State, as well an assistant solicitor of the Treasury. As a result, authority over the nation’s legal affairs was diffuse.

The Civil War greatly increased the volume of litigation involving the federal government, creating a dire need for more attorneys. In response, Congress passed a statute in 1861 which finally gave the attorney general supervisory authority over the U.S. attorneys and permitted, at the attorney general’s discretion, the hiring of additional counsel to assist them. Some of the attorneys hired under the 1861 law were, in essence, assistant U.S. attorneys, while others were more appropriately termed “outside counsel.” The fees paid to these outside lawyers became a considerable expense for the government.

The creation of department-specific legal officers caused confusion, particularly because of the conflicting legal opinions those officers sometimes issued. By the late 1860s, the legal work of the federal government had become highly disorganized and expensive, leading to calls for reform. In 1870, President Ulysses S. Grant signed into law the statute creating the Department of Justice, with the attorney general at its head, to act as the law department for the entire federal government. The law was intended to consolidate the legal functions of the government by transferring the solicitors of the various departments to the Department of Justice, placing them at least nominally under the authority of the attorney general.

Some scholars have also viewed the Justice Department’s creation as a means to bolster Reconstruction by increasing the government’s ability to protect African Americans in the South through enforcing the civil rights legislation then being passed by Congress. Alternative interpretations have cast the statute creating the department mainly as an effort to reduce expenses, in that it outlawed hiring of outside counsel by all government departments and mandated that attorney fees be paid only to the U.S. attorneys and assistant U.S. attorneys. In addition to cutting costs, the significant reduction in the number of attorneys employed by the federal government was a step toward making the practice of law more professionalized and exclusive and less subject to the influence of patronage appointments.

The statute creating the department also established the position of solicitor general of the United States, who was to be “an officer learned in the law, to assist the Attorney-General in the performance of his duties.” At the same time, the law eliminated the requirement that the attorney general be “learned in the law.” The solicitor general began to argue cases in the Supreme Court, although the attorney general and assistant attorneys general continued to do so as well into the 1920s. Among the requirements of the position were that the solicitor general would substitute for the attorney general in that officer’s absence and would provide legal opinions to the president, the attorney general, other cabinet members, and U.S. attorneys. Although the solicitor general was authorized to handle important cases in the lower courts throughout the nation, the job’s extensive duties in Washington, D.C., made this a rarity. From early on, however, the solicitor general reviewed decisions against the government in the lower courts to determine which should be appealed.  

Over time, the litigation duties of the solicitor general grew, while other duties were diminished. In modern times, the Office of the Solicitor General has handled nearly all of the government’s litigation before the Supreme Court, made decisions about which cases should be appealed from lower courts, and chosen whether to appear as an intervenor or amicus in other cases. In 1933, Congress created a new position, the assistant solicitor general (later made the assistant attorney general for legal counsel), to assume the solicitor general’s duty of providing legal opinions to the president and other government officers. In 1950, Congress established the deputy attorney general position. The deputy attorney general soon took over the solicitor general’s remaining nonlitigation responsibilities, helping the attorney general to establish and implement departmental policies and programs.

As the volume of federal regulation increased in the twentieth century, the Justice Department became larger and more administratively complex. Over the years, attorneys general created divisions to handle specific types of litigation, beginning with the Division of Public Lands in 1909 and the Criminal Division in 1919. The number of divisions, each headed by an assistant attorney general, multiplied throughout the century; as of 2020, the department maintained criminal, civil, antitrust, tax, national security, civil rights, environment and natural resources, and justice management divisions. The establishment of sections and subsections within the divisions has further contributed to the specialization of executive branch legal officers.    

While the creation of the Justice Department was clearly aimed at consolidating the government’s legal business, this goal proved to be elusive in practice. For the first two decades of the department’s existence, the precise nature of the attorney general’s authority over federal government litigation remained unclear. The statute creating the department failed to specify the duties of the attorney general. Moreover, although the departmental solicitors had been transferred to the Justice Department and were in theory subordinate to the attorney general, several statutes vesting authority over certain suits in the solicitors remained on the books. The solicitor of the Treasury was one of several officers who asserted that their authority had not been circumscribed by the 1870 act.

Congress muddied the waters further in 1872 by creating new legal positions in the Interior and Post Office Departments. Although the officers in question were called assistant attorneys general, they were not appointed by the attorney general and remained outside the Justice Department. The Supreme Court resolved the confusion regarding authority over litigation in 1888 when it decided U.S. v. San Jacinto Tin Company. The Court held that the statutes concerning the Justice Department, although they did not contain a statement of specific duties, made clear that the attorney general “has the authority, and it is made his duty, to supervise the conduct of all suits brought by or against the United States.” The decision helped to harmonize federal litigation, ensuring that the government maintained consistent positions in cases throughout the country.

In response to complaints from successive attorneys general, Congress moved the assistant attorneys general of the Interior and Post Office Departments into the Justice Department (retitling them “solicitors”) in 1914. In subsequent years, however, Congress created new legal positions throughout the government and expanded the authority of others. In 1920–1921, for example, Congress gave attorneys for the Interstate Commerce Commission, the U.S. Shipping Board, and the new Veterans Bureau the right to appear in federal court. In 1928, Attorney General John Sargent urged Congress to reconsolidate all legal business within the Justice Department, comparing the current circumstances with the chaos that existed before the department’s creation. Of more than 900 lawyers in the federal government, only 115 worked under the authority of the attorney general. By 1930, nine legal staffs outside of the Justice Department were conducting litigation in the federal courts.

In 1933, President Franklin D. Roosevelt attempted reconsolidation, issuing an executive order transferring to the Justice Department all responsibility for federal litigation as well as exclusive supervision of the U.S. attorneys. In the same order, Roosevelt transferred the solicitors for the Commerce, Labor, and Treasury Departments out of the Justice Department. While the transfers may have seemed counterintuitive, they reflected the consolidation of litigation authority by facilitating the solicitors’ duties in providing legal advice and oversight to their own departments. The transfers continued a process that had already begun. Between 1929 and 1934, the solicitors of the Navy and Internal Revenue were abolished and those of the State Department and the Post Office were moved to their respective departments. When the solicitor of the Interior Department was transferred out in 1946, the Justice Department no longer had any departmental solicitors in its employ.

Roosevelt’s attempt at consolidation did not last, however. As the federal government continued to expand over the second half of the twentieth century, a multiplicity of new cabinet departments and agencies came into existence. Congress granted each department its own general counsel’s office (only the Labor and Interior Departments continued to have chief legal officers called solicitors) and authorized independent agencies such as the Environmental Protection Agency, the Federal Trade Commission, the Federal Communications Commission, the Securities and Exchange Commission, and the Central Intelligence Agency to employ general counsels as well. The default practice was that general counsels oversaw legal affairs in their own departments and agencies and handled proceedings before administrative bodies, while the Justice Department remained responsible for federal court litigation.

Despite the general practice of keeping government litigation within the purview of the Justice Department, attorneys outside the department have conducted a great deal of litigation. Congress has continually made exceptions to the general rule, granting agency lawyers the right to appear in federal court in civil matters, also known as independent litigating authority. Attorney General Griffin Bell noted with concern in 1978 that thirty-one separate governmental units had such authority. That number continued to grow in subsequent years. In recent times, the Labor Department has exercised significant independent litigating authority, as have many independent agencies such as the Securities and Exchange Commission and Federal Trade Commission. Grants of independent litigating authority have been inconsistent in scope; some have extended to all matters, while others have included only some types of cases before certain courts. Litigation before the Supreme Court remains almost exclusively the province of the Justice Department, however. The solicitor general handles nearly all such litigation, with exceptions typically requiring the solicitor general’s authorization.

Further Reading:
Bell, Griffin B. “The Attorney General: The Federal Government’s Chief Lawyer and Chief Litigator, or One Among Many?” Fordham Law Review 46, no. 6 (May 1978): 1049–1070.

Devins, Neal, and Michael Herz. “The Uneasy Case for Department of Justice Control of Federal Litigation.” University of Pennsylvania Journal of Constitutional Law 5, no. 3 (April 2003): 558–606.

Key, Sewall. “The Legal Work of the Federal Government.” Virginia Law Review 25, no. 2 (Dec. 1938): 165–201.

Shugerman, Jed Handelsman. “The Creation of the Department of Justice: Professionalization without Civil Rights or Civil Service.” Stanford Law Review 66, no. 1 (Jan. 2014): 121–172.

Waxman, Seth P. “‘Presenting the Case of the United States As It Should Be’: The Solicitor General in Historical Context.” Journal of Supreme Court History 23, no. 2 (Dec. 1998): 3–25. Available online.