Removal of Inspectors General: Rules, Practice, and Considerations for Congress

Removal of Inspectors General: Rules, Practice, and Considerations for Congress

Updated May 22, 2024
Removal of Inspectors General: Rules, Practice, and
Considerations for Congress
In 1978, Congress passed the Inspector General Act (IG
with agreement of seven of nine postal governors and three
Act; P.L. 95-452) with the intent to improve oversight
of five Postal Regulatory Commission commissioners.
within certain executive branch agencies. During the floor
debate on the legislation, Senator Thomas Eagleton
The 30-day notice requirement was established under the
described independence as the “most important”
Inspector General Reform Act of 2008 (P.L. 110-409), and
characteristic of the inspectors general (Congressional
the requirement that notice include a “substantive rationale”
Record, vol. 124, part 29, October 22, 1978, p. 30952).
was added by the Securing Inspector General Independence
While this independence has been considered essential, it is
Act of 2022 (Title LII, Subtitle A, of P.L. 117-263).
also weighed against the fact that inspectors general (IGs)
are situated within the agencies and that their dual mission
Further, in most cases, the President must provide Congress
is to report to both agency leaders and Congress. This calls
with written notice 15 days before placing an IG on non-
for consideration of the balance between independence
duty status and cannot do so at all during the 30-day notice
from and general supervision by agencies.
period before removal of an IG without a specific finding
regarding the potential threat posed by the IG to employees
The removal procedures for IGs fall between removal
or the interest of the government.
without limitations and removal only for cause and have
been considered an integral element of IG independence
Additional protection for ongoing investigations is provided
since 1978. Nonetheless, Presidents have removed IGs,
by a requirement that when an IG is removed or placed on
creating concerns in Congress regarding the independence
non-duty status, the acting IG must report to Congress
of IGs, which have led to both oversight of and changes to
within 15 days on the office’s projects at the time the IG
statutory removal requirements.
was removed (5 U.S.C. 405(f)).
This In Focus provides an overview of the current removal
When an IG position is vacant, the “first assistant” is the
procedure for IGs, identifies past presidential removals, and
designated acting IG. However, the President may appoint
discusses potential issues for Congress.
another official working in an IG office to serve as an
acting IG instead. Such an appointment also requires 30-
Removal Procedure
day advance notice to Congress including a substantive
The removal procedure for presidentially appointed IGs is
rationale for the action.
found in Title 5, Section 403(b), of the U.S. Code. The
section reads in part:
Removal Practice
There are several examples of Presidents removing IGs. A
An Inspector General may be removed from office
common theme across those examples, which are outlined
by the President. If an Inspector General is removed
below, is concern from Congress that removals have the
from office or is transferred to another position or
potential to undermine the actual and perceived
location within an establishment, the President shall
independence of IGs.
communicate in writing the substantive rationale,
including detailed and case-specific reasons for any
President Reagan’s Removal of All Inspectors
General
such removal or transfer to both Houses of
Congress (including the appropriate congressional
During presidential transitions, turnover of most political
appointees is the norm. New Presidents have the authority
committees), not later than 30 days before the
to remove IGs at the start of their Administrations and make
removal or transfer. Nothing in this subsection shall
their own nominations. However, following such action at
prohibit a personnel action otherwise authorized by
the start of the Reagan Administration, practice has
law, other than transfer or removal.
disfavored removal of IGs during presidential transitions.
For the IGs appointed by agency heads under Title 5,
Section 415, the same notice rule applies, except that the
One of President Ronald Reagan’s first official acts upon
head of the agency, rather than President, appoints and
his inauguration on January 20, 1981, was to remove all 15
removes the IG. For agencies headed by boards,
confirmed and acting IGs then working across the executive
committees, or commissions, removal requires the written
branch. This action appears to have caused bipartisan
concurrence of two-thirds of the members. The IG of the
concern in Congress. On February 3, 1981, an article in the
U.S. Postal Service may be removed only “for cause” and
New York Times quoted Representatives L. H. Fountain and
Frank Horton—the chair and ranking member of the House
Committee on Government Operations, respectively—as
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Removal of Inspectors General: Rules, Practice, and Considerations for Congress
saying that the move had the potential to politicize, and
Replacing an acting IG with another official is another
thereby undermine, the position of IG (Robert Pear, “Ouster
personnel action that Congress has determined raises
of All Inspectors General by Reagan Called Political
similar independence concerns to the removal of a
Move,” New York Times, February 3, 1981, p. B14).
confirmed IG. There are at least three examples of such
actions:
The controversy dissipated after President Reagan’s
nominees (including many of the previously removed IGs)
1. On April 7, 2020, President Trump
were well received by Congress. The Subcommittee on
replaced Glenn Fine as acting Department
Intergovernmental Relations and Human Resources of the
of Defense IG with Environmental
House Committee on Government Operations held a
Protection Agency IG Sean O’Donnell.
hearing on April 1, 1981, at which Chairman Fountain
2. On May 15, 2020, President Trump
stated that his concerns had been eased by the renomination
replaced Mitch Behm as acting
of five of the former IGs. Chairman Fountain also described
Department of Transportation IG with
the impact of the removals:
Howard Elliot, who also served as the
director of the Pipeline and Hazardous
This action undoubtedly had an adverse effect on
Materials Safety Administration.
the operations of the offices whose directors were
3. On May 1, 2024, President Biden notified
abruptly removed. Much more serious damage was
Congress of his intent to replace the
done, however, by the perception that Inspectors
Acting IG of the Department of
General were being viewed in the same light as
Commerce, Roderick Anderson, with a
political appointees, who expect to be removed with
senior official in the Department of the
each change in administrations.
Interior’s IG Office, Jill Baisinger.
Following the actions at the beginning of the Reagan
It has sometimes been suggested that other IGs have
Administration, some Members of Congress have pushed
resigned under threat of removal since 1978. Because it is
new Administrations to retain IGs. Since 1981, IGs have
not possible to describe these cases with certainty from the
remained in their positions during each presidential
publicly available materials, they are not discussed here.
transition.
Nonetheless, because such actions may impact the
independence of IGs, Congress may monitor or investigate
Recent Presidential Removals of Inspectors
reports of such incidents.
General
There are also at least four instances of a President acting to
Considerations for Congress
remove an IG since 2008, when the congressional notice
The removal of IGs has remained a topic of interest for
requirement was added to the IG Act:
Congress since 1978. Below are some aspects of the issue
that Congress may wish to keep in mind when conducting
1. On June 11, 2009, President Barack
oversight regarding the IG community.
Obama notified Congress of his intent to
remove the IG of the Corporation for
Effectiveness of New Procedures
National Community Service, Gerald
Congress now has examples of presidential removal of an
Walpin.
IG and replacement of an acting IG under the new notice
2. On April 3, 2020, President Donald
requirements enacted in 2022. While the Biden
Administration’s
Trump notified Congress of his intent to
notices under the revised statute provided
remove the IG of the Intelligence
more information than previous notices did, Congress may
Community, Michael Atkinson.
wish to evaluate their legal sufficiency and usefulness.
3. On May 15, 2020, President Trump
Additional Removal Protections
notified Congress of his intent to remove
Congress might also consider additional actions that would
the IG of the State Department, Steven
limit IG removal. The most frequently discussed of these
Linick.
options has been to allow removal of IGs only for reasons
4. On March 29, 2024, President Joe Biden
that fall within a provided definition of good cause. The
notified Congress of his intent to remove
version of the Inspector General Reform Act of 2008 that
the IG of the Railroad Retirement Board,
initially passed the House (H.R. 928, 110th Congress, as
Martin Dickman.
engrossed by the House), for instance, provided that IGs
In each case, some Members of Congress objected to the
would serve for fixed seven-year terms and could be
lack of specificity in these notices. The “substantive
removed only for specified reasons.
rationale” requirement added to the IG Act in 2022 applied
Constitutional Limits on Congress’s Policy Options
to President Biden’s removal of IG Dickman and is
Some policy options that limit the removal of executive
intended to provide Congress more detail on removal
branch officials could raise separation of powers concerns.
actions. While President Biden provided more information
Congress may explore those issues before enacting
to Congress regarding an ongoing misconduct investigation
legislation that could later be challenged in the courts.
involving the IG than past notices did, at least one Member
(Senator Chuck Grassley) has argued that the information
Ben Wilhelm, Analyst in Government Organization and
provided in this notice was still inadequate.
Management
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Removal of Inspectors General: Rules, Practice, and Considerations for Congress

IF11546

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