Presidential Removal of IGs Under the Inspector General Act

Presidential Removal of IGs Under the Inspector General Act

Legal Sidebari
Presidential Removal of IGs Under the
Inspector General Act
May 22, 2020
President Trump has recently removed or replaced a number of acting and permanent Inspectors General
(IGs), including the Intel igence Community IG, the State Department IG, and acting IGs at the
Department of Transportation and Department of Defense. These actions have stirred both immediate
concern by some within Congress and a larger conversation on IG independence. While governing
statutes provide that IGs are intended to be “independent and objective units” tasked with auditing and
investigating agency programs, they are not entirely insulated from presidential influence. In most cases it
is the President that both selects and removes IGs, subject to checks on that authority discussed below.
With respect to his replacement of the acting IGs, President Trump appears to have taken action permitted
by the Vacancies Act, which general y provides the President with discretion to fil temporarily vacancies
in positions requiring Senate confirmation. That law does not appear expressly to restrict the President’s
authority to replace acting officials. With respect to the permanent IGs, who had been confirmed to their
position by the Senate, the governing statute is principal y the Inspector General Act of 1978 (IG Act).
That law requires the President to notify Congress of the reasons for the removal of an IG not later than
30 days before taking action. In each recent instance where President Trump removed a permanent IG, he
gave advanced notice to Congress, and in each case justified the action on the ground that he “no longer”
had “confidence” in the official to be removed. Some Members of Congress expressed concern about the
articulated reasons for these removals, including a bipartisan group of Senators who concluded that “an
expression of lost confidence, without further explanation, is not sufficient to fulfil the requirements” of
the IG Act. The House-passed Heroes Act includes several provisions that seek to provide IGs with
further independence from presidential influence, and the bil would also amend the IG Act’s notification
requirements to extend to situations where an IG is placed on administrative leave This Sidebar addresses
the removal notification provision of the IG Act and the requirements it may impose upon the President.
Notification of Removal Under the IG Act
Under the IG Act, most executive agency IGs (known as “establishment IGs”) are appointed by the
President with the advice and consent of the Senate, while IGs for other entities, including most
government corporations (known as “DFE IGs”), are appointed by the head of a designated federal entity
(DFE). As to removal, the IG Act provides that “[a]n Inspector General may be removed from office” by
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the appointing authority. However, “[i]f an Inspector General is removed from office or is transferred to
another position or location within an establishment,” the President or the DFE head, “shal communicate
in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days
before the removal or transfer.” (The Intel igence Community IG is also governed by 50 U.S.C. § 3033,
which largely mirrors the IG Act’s language but specifical y requires notice to the Intel igence
Committees.)
The IG Act’s text does not, by its terms, substantively limit the reasons for which the President can
exercise his removal power. As a purely textual matter, the notification requirement appears to be
primarily procedural. According to one federal appel ate court, the provision was intended to give
Congress “an opportunity for a more expansive discussion of the President’s reasons for removing an
inspector general.” In short, if Congress believes an IG removal to be unwarranted, the provision gives
Congress a 30-day period to dissuade the President—through the use of its not inconsiderable legislative
powers and levers of influence—from taking his announced course of action.
The evolution of the IG Act’s removal provision reflects Congress’s intent to strike a delicate balance
between autonomy and supervision: to give IGs enough independence to be effective, but not so much as
to create an adversarial relation to the executive branch. An early House version of the IG Act would have
required the President to notify both Houses of Congress of the reasons for any removal. The Department
of Justice (DOJ) objected to that provision on constitutional grounds, arguing that such a provision would
constitute “an improper restriction on the President’s exclusive power to remove Presidential y appointed
executive officers.” The committee which reported out the bil disagreed with the DOJ’s position, but the
House nevertheless removed the presidential notification requirement, instead adding language that would
have mandated that the Comptroller General promptly investigate and report to Congress on the
“circumstances” of any removal of an IG. The House bil was then taken up in the Senate, which
reinstituted the original House approach by requiring that the President “communicate the reasons for any
[] removal to both Houses of Congress.” The Senate report acknowledged and rejected the DOJ’s
constitutional objections, determining that the notification requirement was “justified and permissible.”
The report also elaborated on the effect of the provision, stating that the intent was to provide IGs with a
“measure of independence” and noting the Senate’s intent that the provision act as something more than a
procedural notice requirement:
[w]hile the committee has not required the President to have “cause” before removing an Inspector
and Auditor General, the committee expects that there would be some justification —other than the
desire to remove an Inspector and Auditor General who is performing his duties in a way which
embarrasses the executive—to warrant the removal action.
The House ultimately acceded to the Senate version.
Congress amended the IG Act notification provision in 2008 to “strengthen” and “safeguard” IG
independence by requiring notification prior to the removal of an IG, rather than at the time of removal, as
original y directed under the statute. The 2008 reforms added the current time limitation, which requires
the President communicate his reasons for any “removal or transfer to both Houses of Congress, not later
than 30 days before the removal or transfer.” The legislative history of the 2008 amendment suggests that
the purpose of this change was to alter the after the fact nature of the notification requirement and instead
“al ow for an appropriate dialogue with Congress in the event that the planned transfer or removal is
viewed as an inappropriate or political y motivated attempt to terminate an effective Inspector General.”
While the Senate report accompanying the amendment expressed “hope” that the provision would
“encourage useful communication between Congress and the Executive Branch on IG performance and
serve as an effective deterrent against improper terminations,” it also stated that “the provision does not
alter the President's ultimate authorities with respect to Executive Branch employees.” As in 1978, the
legislative history suggests that Congress viewed the notification requirement as not only imposing a
procedural requirements, but also as a mechanism to deter unwarranted Presidential removals:

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The Committee intends that Inspectors General who fail to perform their duties properly whether
through malfeasance or nonfeasance, or whose personal actions bring discredit upon the office, be
removed. The requirement to notify the Congress in advance of th e reasons for the removal should
serve to ensure that Inspectors General are not removed for political reasons or because they are
doing their jobs of ferreting out fraud, waste and abuse.
Although the idea of imposing explicit statutory restrictions on the reasons for which a President could
remove an IG was considered at this time (such a provision was approved by the House), Congress opted
not to take that step. As described by the Government Accountability Office, the general debate over
further strengthening IG removal protections related to the proper balancing of autonomy, supervision,
and accountability, with some arguing that limiting the President to “removal for cause could help relieve
immediate pressures of removal, but such independence could also lead to an IG who is isolated from the
agency head and the rest of the agency,” thereby threatening the “IG concept.” Nevertheless, given the
relative infrequency of IG removals since 1978, the notification provision (in combination with other
provisions of the IG Act that support IG independence) has arguably had success in deterring Presidents
from treating IGs like officials who serve at the President’s pleasure.
Recent Presidents have treated the notice provision narrowly, interpreting it as imposing neither
substantive restrictions on removal, nor requiring any significant explanation or discussion of the reason
for removal, nor barring the President from taking employment action against the IG short of removal
within the 30-day waiting period. For example, both President Obama and President Trump have removed
IGs due to a “lack of confidence” and placed IGs on administrative leave during the 30-day waiting
period. The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) appears to have
endorsed this vision of the statute, at least in the context of a mandamus suit. In Walpin v. Corporation for
National and Community Services, a former IG argued that President Obama had violated the IG Act by
placing him on administrative leave during the waiting period and providing Congress with an inadequate
justification for his removal. President Obama’s explanation for the IG’s removal stated only that he had
lost “fullest confidence” in the IG. Both the D.C. Circuit and the district court below rejected the IG’s
arguments, holding that the President’s “explanation satisfies the minimal statutory mandate” as the IG
Act notification provision “imposes no ‘clear duty’ to explain the reasons in any greater detail.” The D.C.
Circuit also suggested that placing the IG on administrative leave during the 30-day waiting period did
not appear to amount to a removal or transfer without notice in violation of the IG Act, reasoning that the
Act “provides no right to continued duty performance but only to deferral of ‘removal’ until thirty days
after notice is given.”
Although the D.C. Circuit’s interpretation of the statutory text suggests a narrow construction of the
notification provision, there is evidence that Congress’s intent was that the provision would work as more
than a procedural waiting period before formal removal. As previously discussed, the legislative history of
the IG Act—both when initial y enacted in 1978 and later when amended in 2008—suggests that
Congress believed that the notification should at least provide Congress with enough information to
assess whether a planned IG removal is based on grounds it deemed concerning. For instance, it seems
that Congress wanted to have an opportunity to assess whether a removal was motivated by an
inappropriate desire to remove an IG for “political reasons,” because an IG investigation risked
“embarrass[ment],” or because the IG was “doing their job[] of ferreting out fraud, waste and abuse.”
Thus, while recent presidential actions may be in compliance with the strict requirements of the
IG Act, placing an IG on administrative leave prior to removal and articulating only that the
removal is based on a lack of confidence does not appear to be consistent with Congress’
aspirational intent for how the law would work in practice. The legislative history of the IG Act
seems to indicate Congress’s aim that the advanced notification requirement would not only
deter removals motivated by either political disagreement or a desire to avoid the embarrassment
inherent in IGs exposing waste, fraud, or abuse, but also provide Congress with the information

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necessary to make an informed response to the presidential action. Congress’s constitutional
authority to alter the IG framework, for example to provide directly and explicitly IGs with
statutory removal protections, is to be discussed in a CRS product in preparation.

Author Information

Todd Garvey

Legislative Attorney

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