Congress’s Authority to Limit the Removal of Inspectors General

Congress’s Authority to Limit the Removal of Inspectors General

Congress’s Authority to Limit the Removal
April 16, 2021
of Inspectors General
Todd Garvey
Federal law establishes a variety of inspectors general (IGs), each of whom is generally
Legislative Attorney
tasked with detecting waste, fraud, and abuse through independent and objective

investigations, audits, and reviews of the agency or program for which they are
responsible. In 2020, the level of independence that IGs possess received significant
For a copy of the full report,
public and congressional attention after President Donald Trump removed or replaced
please call 7-5700 or visit
www.crs.gov.
two permanent and two acting IGs in the span of two months.
Although IGs are independent and objective units, they are not completely insulated from executive branch
influence. Under the Inspector General Act of 1978 (IG Act), IGs are appointed, supervised, and removed by
either the President or agency leadership.
Various legislative proposals recently have been introduced to modify the statutory IG framework. Some of these
proposals have chosen to strike the IG Act’s current balance between autonomy, accountability, and supervision
differently. Increasing IG independence and decreasing executive branch influence could be achieved in various
ways, but restricting the ability of the President (or agency head) to remove IGs would perhaps be the most direct
approach. Because the IG Act does not appear to limit substantively the reasons for which the President can
exercise his removal power, Congress could look to protect IGs from what it may view as unwarranted removals
by prohibiting termination of an IG except “for cause.” Congress’s constitutional authority in this area, however,
is fraught with uncertainty and directly implicates the President’s removal power and the constitutional separation
of powers.
While Congress’s power to use removal restrictions to encourage independence for some offices is established,
the Supreme Court has recently characterized these past decisions as narrow exceptions to the President’s
otherwise broad removal power. Nevertheless, the typical IG exercises a unique mixture of powers that, as a
matter of current constitutional law, appear to fall within the existing judicial carve-out. As such, for cause
removal restrictions would appear to be a constitutionally permissible means of encouraging independence for
most IGs. This conclusion is subject to two important caveats. First, because the Court’s removal jurisprudence
continues to evolve, Congress’s authority to use for cause protections to promote independence remains the
subject of significant uncertainty. And second, Congress’s power to provide for cause protections may not extend
to IGs who are currently removable not by the President, but by an independent agency board or commission
whose members also possess for cause protections.

Congressional Research Service

link to page 5 link to page 7 link to page 8 link to page 12 link to page 13 link to page 14 link to page 16 link to page 18 link to page 24 link to page 26 link to page 28 link to page 31 link to page 32 link to page 35 link to page 39 link to page 41 link to page 41 Congress’s Authority to Limit the Removal of Inspectors General

Contents
The Inspector General Act and IG Independence ............................................................................ 2
IG Features of Independence .................................................................................................... 4
Existing IG Removal Restrictions ............................................................................................. 5
Legal Principles of Removal: Constitutional Parameters of Statutory Controls ............................. 9
Statutory Removal Restrictions ............................................................................................... 10
The Removal Power ................................................................................................................. 11
The Relationship Between Appointment and Removal .................................................... 13
The Supreme Court’s Removal Jurisprudence: Myers Through Seila Law ............................ 15
Summary of the Supreme Court’s Removal Principles ........................................................... 21
Providing For Cause Protections to IGs ........................................................................................ 23
Assessing the IG Function ...................................................................................................... 25
Application of the Supreme Court’s Existing Removal Holdings to IGs ............................... 28
Are IGs Officers of the United States? ............................................................................. 29
Principal or Inferior Officer? ............................................................................................ 32
Free Enterprise Fund and Dual Layers of For Cause Protections .................................... 36
Conclusion ..................................................................................................................................... 38

Contacts
Author Information ........................................................................................................................ 38

Congressional Research Service

Congress’s Authority to Limit the Removal of Inspectors General

ederal law establishes a variety of inspectors general (IGs), who are generally tasked with
detecting waste, fraud, and abuse in the agency or program for which they are responsible
F through independent and objective investigations, audits, and reviews.1 In 2020, the level
of independence that IGs in fact possess received significant public and congressional attention
after President Donald Trump removed or replaced two permanent and two acting Inspectors
General in the span of two months.2 The removals prompted investigations from various
congressional committees;3 a letter from a bipartisan group of Senators asking President Trump
for a more detailed explanation of the reasons for his actions;4 and the introduction of legislation
to strengthen statutory protections for all IGs by, among other measures, explicitly restricting the
President’s authority to remove IGs in the future.5 The House, for example, adopted the HEROES
Act, which would have made alterations to the existing IG framework, including by allowing the
removal of IGs only for enumerated reasons such as inefficiency, malfeasance, gross
mismanagement, or abuse of authority.6
The events of 2020 have prompted heightened congressional interest in the independence
provided to IGs under the Inspector General Act (IG Act) and other statutory provisions.
Although IGs are “independent and objective units” charged with improving executive branch
efficiency and accountability through oversight, they are not insulated from presidential
influence, for the President has the power to select and—perhaps more importantly—remove
many IGs.7 Removal is “a powerful tool for control,”8 the Supreme Court once observed, as it is
that authority that a subordinate official “must fear and, in the performance of his functions,
obey.”9
But it is precisely because removal is such an effective tool of presidential control that protecting
an official from removal is perhaps Congress’s most effective means of encouraging autonomy,
especially when Congress has determined that a given function should be carried out with limited

1 For a general discussion of inspectors general in the federal government, see CRS Report R45450, Statutory
Inspectors General in the Federal Government: A Primer, by Ben Wilhelm.
2 See Letter from Donald Trump, President of the United States, to Richard Burr, Chairman, Senate Select Committee
on Intelligence (Apr. 3, 2020), available at https://www.politico.com/f/?id=00000171-4308-d6b1-a3f1-
c7d8ee3f0000h=; Kyle Cheney and Connor O’Brien, Trump Removes Independent Watchdog for Coronavirus Funds,
Upending Oversight Panel, POLITICO (Apr. 7, 2020, 12:03 PM EDT); Letter from Donald Trump, President of the
United States, to Nancy Pelosi, Speaker, House of Representatives (May 15, 2020), available at
https://thehill.com/homenews/ administration /498115-read-trump-letter-on-removing-state-dept-inspector-general; Ian
Duncan and Michael Laris, Democrats Open Investigation into Trump’s Replacement of Acting Transportation
Department Inspector General, WASH. POST (May, 19, 2020, 6:06 p.m. EDT).
3 See Press Release, H. Comm. on Foreign Affairs, Engel and Menendez Launch Probe into Removal of State
Department Inspector General, (May 16, 2020).
4 See Letter from Senator Charles Grassley et al, to Donald Trump, President of the United States (Apr. 8, 2020),
https://www.grassley.senate.gov/news/news-releases/grassley-leads-bipartisan-call-safeguard-inspector-general-
independence-following.
5 See CRS In Focus IF11698, Legislative Proposals Related to the Removal of Inspectors General in the 116th
Congress, by Ben Wilhelm. See also S. 587, 117th Cong. (2021); H.R. 23, 117th Cong. (2021) (as passed by the House,
Jan. 5, 2021).
6 H.R. 6800, 116th Cong., Div. G, § 70104 (2020) (as passed by the House, May 15, 2020).
7 5 U.S.C. App. §§ 2-3. Even when the power to remove an IG is conferred to an agency head, the President may still
be able to exert significant influence over that official’s personnel decisions. See Elana Kagan, Presidential
Administration, 114 HARV. L. REV. 2245, 2246 (2001) (“We live today in an era of presidential administration.”).
8 Edmond v. United States, 520 U.S. 651, 664 (1997) (“The power to remove officers, we have recognized, is a
powerful tool for control.”).
9 Bowsher v. Synar, 478 U.S. 714, 726 (1986) (citation omitted).
Congressional Research Service
1

Congress’s Authority to Limit the Removal of Inspectors General

presidential oversight or political influence.10 An official who serves at the President’s pleasure
generally must comply with the President’s wishes and conform to the President’s priorities, but
one who cannot be removed at will is more likely to discharge their statutory obligations with “an
attitude of independence.”11
Recognizing the significant role that removal plays in the independence of a given office, this
report addresses the extent to which Congress could, as a constitutional matter, alter the existing
IG framework by further protecting IGs from removal.12 The Supreme Court’s recent removal
jurisprudence suggests that it has adopted only limited exceptions to the President’s otherwise
broad power to remove executive branch officers.13 Nevertheless, IGs would appear to fall within
this narrow judicial carve-out as they do not seem to hold the type of office or exercise the type of
powers that the Constitution requires be discharged by an official subject to unrestricted removal
by the President. As such, prohibiting the President or another executive branch officer from
removing IGs except “for cause” would likely be a constitutionally permissible means of
encouraging independence for most, but perhaps not all IGs. Still, because the Court’s removal
jurisprudence continues to evolve, Congress’s authority to use for cause protections to promote
independence remains the subject of significant debate.
The Inspector General Act and IG Independence
Congress has statutorily established a variety of IGs in the executive branch, the vast majority of
whom are governed by the IG Act.14 The IG Act set up15 a series of IG offices as “independent
and objective units” located within various federal agencies.16 Originally establishing a handful of
IG offices, the IG Act now governs the operation of more than 70 IGs.17 These include two
slightly different classes of IG: (1) “establishment” IGs, positioned in typical executive
departments and agencies, who are appointed by the President with the advice and consent of the
Senate;18 and (2) “designated federal entity” (DFE) IGs, positioned in other federal entities
(including many government corporations and independent agencies), who are appointed by the
identified head of the DFE.19 “Special” IGs represent a third category of IG established outside of

10 See Collins v. Mnuchin, 896 F.3d 640, 660 (5th Cir. 2018), reh’g en banc, 938 F.3d 553 (2019), cert. granted, 141 S.
Ct. 193 (2020) (“The quintessential independence-promoting mechanism is restricting the Executive Branch’s ability to
remove agency leaders at will.”).
11 Humphrey's Ex’r v. United States, 295 U.S. 602, 629 (1935) (“[I]t is quite evident that one who holds his office only
during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's
will.”).
12 For testimony relating to the possible advantages and disadvantages of providing IGs with removal protections, see
Inspectors General: Independence and Integrity, Hearing Before the Subcomm. On Govt., Mgmt., Org. and
Procurement of the H. Comm. on Oversight and Govt. Reform, 110th Cong., at 48 (2007).
13 See Seila Law, LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2192 (2020) (noting that “[o]ur precedents have
recognized only two exceptions to the President’s unrestricted removal power”).
14 5 U.S.C. App. §§ 1-13.
15 The IG Act built on a handful of existing IGs and internal auditing offices in individual agencies. See Wilhelm, supra
note 1, at 1-2.
16 5 U.S.C. App. § 2.
17 Wilhelm, supra note 1, at 27-30.
18 5 U.S.C. App. §§ 3, 12.
19 Id. § 8G(a)(2). Although their method of appointment and removal may differ, establishment and DFE IGs exercise
similar powers. See id. § 8G(g)(1) (“Sections 4, 5, 6 (other than subsections (a)(7) and (a)(8) thereof), and 7 of this Act
shall apply to each Inspector General and Office of Inspector General of a designated Federal entity”). “Special” IGs
Congressional Research Service
2

Congress’s Authority to Limit the Removal of Inspectors General

the IG Act.20 Special IGs, who are generally vested with cross-cutting jurisdiction rather than
confined to the operations of a single agency, are typically appointed by the President with the
advice and consent of the Senate.21
The overriding purpose of the IG office is to promote “economy, efficiency, and effectiveness” in
agency operations, mainly by rooting out waste, fraud, and abuse.22 Each IG is charged with the
relatively unique obligation of keeping both the head of the agency and Congress “fully and
currently informed about problems and deficiencies” that may require “corrective action.”23
Different IGs have slightly different authorities,24 but as a general matter, most IG powers
typically relate to investigating and auditing the “programs and operations” of the agency for
which they are given responsibility and then reporting findings and recommendations to the
agency head, Congress, and the public.25 While an IG can recommend that an agency implement
specific “policies” or “corrective action” following an investigation or audit, IGs can neither
compel nor prohibit agency activity.26 Nor can they be delegated any “program operating
responsibilities” or conduct “regulatory compliance” activities, both of which Congress has
entrusted only to the agency’s responsibility.27
Each IG has a variety of information-gathering tools to carry out his or her investigative and
informing functions. Central to the toolbox is a statutory right of “timely access to all records . . .
or other materials available to” their agency and “direct and prompt access” to the agency head
and agency personnel.28 In addition, IGs may request “information or assistance…from any
Federal, State, or local governmental agency,” administer oaths, and issue judicially enforceable
subpoenas for the production of all necessary and relevant information.29 IGs may not, however,
use subpoenas to obtain information from federal agencies and are instead instructed to use other

represent a third category.
20 Statutory provisions creating special IGs and other freestanding IGs not established within the IG Act nevertheless
tend to cross-reference many of the authorities and restrictions of the IG Act. See, e.g., 12 U.S.C. § 5231 (Special
Inspector General for the Troubled Asset Relief Program). Thus, the IG Act operates as a generally applicable law and
is the central law cited for the authorities of IGs in this report.
21 See Wilhelm, supra note 1, at 30. Special IGs are generally vested with cross-cutting jurisdiction, untethered to a
specific agency. Typically appointed by the President with the advice and consent of the Senate, statutory provisions
creating Special IGs and other freestanding IGs not established within the IG Act nevertheless tend to cross-reference
many of the authorities and restrictions of the IG Act. See, e.g., 12 U.S.C. § 5231 (Special Inspector General for the
Troubled Asset Relief Program). For a catalogue of all existing IGs, see generally Wilhelm, supra note 1.
22 5 U.S.C. App. § 2.
23 Id. §§ 2, 4.
24 Some IG’s are governed exclusively by the general provisions of the IG Act. See, e.g., id. §§ 4-6 (governing typical
agency IGs). Others are governed by their own specific provisions of the IG Act. See, e.g. id. §§ 8-8H (governing IGS
for the Department of Defense, Nuclear Regulatory Commission, and others). Still others are governed by freestanding
provisions. See, e.g., 50 U.S.C. §§ 3033, 3517 (governing the IG of the Intelligence Community and the Central
Intelligence Agency).
25 5 U.S.C. App. §§ 2-5.
26 Id. § 4.
27 Id. § 9(a)(2); Burlington N. R. Co. v. Off. of Inspector Gen., R. Ret. Bd., 983 F.2d 631, 642 (5th Cir. 1993) (“If an
Inspector General were to assume an agency's regulatory compliance function, his independence and objectiveness—
qualities that Congress has expressly recognized are essential to the function of combatting fraud, abuse, waste, and
mismanagement—would, in our view, be compromised.”).
28 5 U.S.C. App. § 6(a). Despite this language, IGs are not always given access to requested agency information. See
generally Obstructing Oversight: Concerns from Inspectors General: Hearing before the House Committee on
Oversight and Government Reform, 113th Cong. (2014) (hearing concerning IG access to agency information).
29 5 U.S.C. App. § 6(a).
Congressional Research Service
3

Congress’s Authority to Limit the Removal of Inspectors General

“procedures.”30 Notably, the IG Act also provides IGs and their employees with an avenue to
exercise certain law enforcement authorities, including the power to make arrests while “engaged
in official duties” and execute warrants upon probable cause, subject to supervision by the
Attorney General.31
IG Features of Independence
Both Congress and the Supreme Court have recognized the unique nature of IGs and the
centrality of independence, autonomy, impartiality, and objectivity to effective oversight of
agency programs. The legislative history of the IG Act reflects lawmakers’ calculation that
because agency officials will “not always identify or come forward with evidence of failings” in
their own programs, internal investigative functions should be assigned to an “outsider” with “no
vested interest in the programs…they are evaluating” and “an unusual degree of independence.”32
The Supreme Court has similarly recognized that IG autonomy is “vital to effectuating Congress’
intent and maintaining an opportunity for objective inquiries into bureaucratic waste, fraud,
abuse, and mismanagement.”33
The IG Act seeks to provide that independence in various ways, including by
 requiring appointment of IGs “solely on the basis of integrity” and “without
regard to political affiliation;”34
 subjecting establishment IG appointments to Senate confirmation;35
 prohibiting (with some exceptions) the agency head from blocking an
investigation or audit;36
 requiring IGs to comply with generally accepted government auditing standards
(GAGAS);37
 providing IGs with a direct line of communication to Congress;38

30 Id. § 6(a)(4) (“[P]rocedures other than subpoenas shall be used by the Inspector General to obtain documents and
information from Federal agencies.”).
31 Id. § 6(f).
32 S. REP. NO. 95-1071, at 7, 9. (1978). See also S. REP. NO. 110-262, at 1 (2008) (in report of Senate Committee on
Homeland Security and Government Affairs accompanying the Senate version of the IG Reform Act of 2008,
observing that “[i]t is essential that Inspectors General operate with sufficient independence,” at least from their
agency, in order “to do their jobs well”).
33 See NASA v. Fed. Labor Rels. Auth., 527 U.S. 229, 240 (1999) (“In conducting their work, Congress certainly
intended that the various OIGs would enjoy a great deal of autonomy. . . .”).
34 5 U.S.C. App. §§ 3(a), 8G(c). S. REP. NO. 95-1071, at 25 (1978) (“[T]he committee intends to safeguard against the
appointment of an Inspector and Auditor General that is motivated by any considerations other than merit.”).
35 5 U.S.C. App. § 3.
36 Id. §§ 3(a), 8G(d)(1).
37 See U.S. GOV’T ACCOUNTABILITY OFF., GAO-20-639R 8-751, INSPECTORS GENERAL INDEPENDENCE 3 (2020) (noting
that GAGAS “helps protect IG independence” by emphasizing the “need for auditors to identify any threats to their
independence and to put in place any appropriate safeguards needed to mitigate them.”).
38 Agency heads may comment on but not alter IG reports to Congress. 5 U.S.C. App. § 5(b). See also The Inspector
General Act: 20 Years Later: Hearings before the Senate Committee on Governmental Affairs, 105th Cong., 2d Sess., 2
(1998) at 45 (statement of June Gibbs Brown, Inspector General of the U.S. Dept. of Health and Human Services) (“A
key component of OIG independence is our direct communication with the Members and staff of the
Congress….Information can and must go directly from the Inspectors General to the Hill, without prior agency and
administration clearance.”). Some IGs have greater reporting obligations to Congress. See 50 U.S.C. § 3517(d)(3)
(Central Intelligence Agency IG reporting requirements).
Congressional Research Service
4

Congress’s Authority to Limit the Removal of Inspectors General

 detailing a process by which IG budget estimates are provided to Congress;39 and
 requiring that the President (or, in the case of DFE IGs, the DFE head) provide
written communication for any IG removal or transfer to both houses of Congress
“not later than 30 days before the removal.”40
These various statutory features highlight the anatomy of independence. While restrictions on
removal are the dominant consideration, they are not the only means by which Congress creates
semi-autonomous entities.41 Independence can arguably be achieved through a variety of features,
each contributing to the overall reduction in the level of influence and control the executive
branch wields over a given office.42
But as previously noted, IGs are by no means insulated from executive oversight. In addition to
the fact that IGs are removable either by the President or the DFE head, the IG Act explicitly
provides that IGs “report to” and are “under the general supervision” of the head of the agency
they oversee.43 This supervision has at times been described as “nominal” by reviewing courts.44
But it nonetheless gives an agency head enough influence for the Supreme Court to deem the
agency head to be one of the IGs supervising authorities.45 The Court has also noted that IGs
function as part of the agency they oversee, reasoning that they are “employed by, act on behalf
of, and operate for the benefit of” the agency of which they are “a part.”46
The current IG framework, therefore, gives IGs freedom in carrying out their duties, but also puts
the officials in a unique position—one in which they are responsible to different masters.
Establishment IGs, for example, are simultaneously removable by the President, subject to
supervision by the agency head, and required to keep Congress fully and currently informed.47
Existing IG Removal Restrictions
The IG Act currently provides that an IG may be removed from office by the President or, in the
case of a DFE IG, the DFE head.48 However, if the IG is removed or transferred to another
position, the President or the DFE head “shall communicate in writing the reasons for any such

39 See 5 U.S.C. App. § 6(g); Wilhelm, supra note 1, at 13-14 (discussing IG budget proposals).
40 5 U.S.C. App. §§ 3(b), 8G(e)(2). In the case of a DFE that is run by a board, the IG Act provides that “a removal
under this subsection may only be made upon the written concurrence of a 2/3 majority of the board….” Id. § 8G(e)(1).
41 See Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 CORNELL
L. REV. 769, 825 (2013) (“Congress often structures agencies to be independent from the Executive Branch in hopes
that a measure of political insulation will enable the agencies to pursue policy objectives that (hopefully) yield long-
term benefits. To do so, Congress selects from a ‘menu of options’ in order ‘to structure the agency to be more or less
insulated from presidential control.’”).
42 See id. at 784-812 (describing various “indicia of independence traditionally associated with independent agencies”).
43 5 U.S.C. App § 3(a).
44 Nuclear Regul. Comm’n v. Fed. Labor Rel. Auth., 25 F.3d 229, 235 (4th Cir. 1994).
45 NASA v. Fed. Labor Rel. Auth., 527 U.S. 229, 240-41 (1999) (stating that “each Inspector General has no
supervising authority—except the head of the agency of which the OIG is a part”).
46 Id. at 241.
47 Id. at 240 (“Other than congressional committees (which are the recipients of the reports prepared by each Inspector
General) and the President (who has the power to remove an Inspector General), each Inspector General has no
supervising authority—except the head of the agency of which the OIG is a part.”); S. REP. NO. 95-1071, at 7 (1978)
(describing the IG as “an individual whose independence is clear and whose responsibility runs directly to the agency
head and ultimately to the Congress.”).
48 5 U.S.C. App § 3(b).
Congressional Research Service
5

Congress’s Authority to Limit the Removal of Inspectors General

removal or transfer to both Houses of Congress, not later than 30 days before the removal or
transfer.”49
The IG Act’s text does not, by its terms, substantively limit the reasons for which the President or
DFE head can remove an IG.50 As a purely textual matter, the notification requirement appears to
be primarily procedural. According to one federal appellate court, the provision is akin to a
report-and-wait provision that was intended to give Congress “an opportunity for a more
expansive discussion of the President’s reasons for removing an inspector general.”51 In short, if
Congress believes an IG removal to be unwarranted, the provision gives Congress a 30-day
period to dissuade the President or a DFE head—through the use of Congress’s legislative powers
and other levers of influence—from taking the announced course of action.52
The current 30-day notification in the IG Act was not in the original version of the legislation.
The historical 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 relationship to the executive branch.53 An
early House version of the IG Act would have required the President to notify both houses of
Congress of the reasons for any IG removal, but did not require this notification to occur prior to
the removal or transfer of the IG. 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 presidentially-appointed executive officers.”54 The
House committee that reported out the bill 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.55
The House bill 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.”56 The Senate committee report accompanying the Senate’s competing version of the
IG Act acknowledged and rejected the DOJ’s constitutional objections, determining that the
notification requirement was “justified and permissible.”57 The Senate report also elaborated on
the effect of the provision, stating that the intent was to provide IGs with a “measure of

49 Id.
50 The Supreme Court recently suggested that a similar removal provision that requires the President to “communicate”
his “reasons” for removing the Comptroller of the Currency” did not prevent the President from removing “the
Comptroller for any reason.” Seila Law, LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2201 n. 5 (2020).
51 Walpin v. Corp. For Nat'l & Cmty. Servs., 630 F.3d 184, 188 (D.C. Cir. 2011).
52 See Walpin v. Corp. for Nat'l, & Cmty. Serv., 718 F. Supp. 2d 18, 23 (D.D.C. 2010) (describing the IG Act as
“giving Congress a mechanism by which it receives advance notice that the President would be removing an Inspector
General, allowing Congress, not the Inspector General himself, to act by communicating with the President”).
53 As the Senate report accompanying the IG Act legislation observed, an IG’s “efforts will be significantly impaired if
he does not have a smooth working relationship with the [agency] head….” S. REP. NO. 95-1071, at 9 (1978).
54 Memorandum Opinion for the Attorney General: Inspector General Legislation, 1 Op. Off. Legal Counsel 16, 18
(1977).
55 H.R. REP. NO. 95-584, at 2 (1977) (noting that the notification requirement did not restrict the President’s removal
power but “specifically allow[ed] the President to remove any Inspector General at any time”).
56 S. REP. NO. 95-1071, at 45 (1978).
57 Id. at 26 (“[T]he committee believes that unlike a provision which permitted the President to remove an official only
for cause, requiring communication by the President to Congress, after the fact of removal, does not impair the
President’s right to remove an executive official. But even if the requirement does place some constraint on the
President’s removal power, the committee believes the requirement is justified and permissible.”).
Congressional Research Service
6

Congress’s Authority to Limit the Removal of Inspectors General

independence” and noting the Senate’s intent that the provision act as something more than a
procedural notice requirement:
While 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. 58
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 originally directed under the statute.59 The 2008 reforms added the current time
limitation, which now requires the President to communicate his reasons for any “removal or
transfer to both Houses of Congress, not later than 30 days before the removal or transfer.”60 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 “allow for an appropriate
dialogue with Congress in the event that the planned transfer or removal is viewed as an
inappropriate or politically motivated attempt to terminate an effective Inspector General.”61
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.”62 As in 1978, the legislative history for the 2008 amendments suggests that Congress
viewed the notification requirement as not only a procedural requirement, but also a mechanism
to deter unwarranted presidential removals:
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 the
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.63
Although Congress considered imposing explicit statutory restrictions on the reasons for which a
President could remove an IG in 2008 (indeed, the House initially approved such a provision),
Congress opted not to do so.64 As described by the Government Accountability Office, the general

58 Id. See also U.S. GOV'T ACCOUNTABILITY OFF., GAO-06-931SP, HIGHLIGHTS OF THE COMPTROLLER GENERAL'S
PANEL ON FEDERAL OVERSIGHT AND THE INSPECTORS GENERAL 5 (2006) (“The removal authority of the President is
intended to permit the President to make changes when the performance of an IG is unsatisfactory or when it appears
that appointment of another individual might result in more effective performance. Removal of IGs without cause could
give the appearance of political maneuvering to control these important offices.”).
59 S. REP. NO. 110-262, at 1-2 (2008) (Senate committee report for legislation eventually incorporated into the enacted
version of the IG Reform Act of 2008).
60 5 U.S.C. App. § 3(b).
61 S. REP. NO. 110-262, at 4 (2008).
62 Id. at 5.
63 Id. at 8-9.
64 See H.R. 928, 110th Cong. § 3 (2007); S. REP. NO 110-262, at 5 (2008) (“This advance notice provision was widely
endorsed by the IG community as a useful deterrent against improper intimidation or dismissal. By contrast, the
Inspectors General were divided over proposals to create fixed terms for IGs with dismissal only ‘for cause.’”).
Congressional Research Service
7

Congress’s Authority to Limit the Removal of Inspectors 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” and the need for the IG to maintain a working relationship with the
agency.65 Nevertheless, given the relative infrequency of IG removals since 1978, the notification
provision (in combination with other IG Act provisions that support IG independence) has, as a
historical matter, arguably deterred Presidents from treating IGs like officials who serve at the
President’s pleasure.66
Recent Presidents have construed 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.67 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 which a removed IG asked the court to restore him to
his position.68 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.69 President Obama’s explanation for the IG’s removal stated only that he had lost
“fullest confidence” in the IG.70 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.”71 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.”72
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 initially enacted in 1978 and later when amended
in 2008—suggests that Congress believed that the notification should at least provide Congress

65 U.S. GOV'T ACCOUNTABILITY OFF., GAO-06-931SP, HIGHLIGHTS OF THE COMPTROLLER GENERAL'S PANEL ON
FEDERAL OVERSIGHT AND THE INSPECTORS GENERAL 6 (2006).
66 See CRS In Focus IF11546, Removal of Inspectors General: Rules, Practice, and Considerations for Congress, by
Ben Wilhelm.
67 See Letter from Donald Trump, President of the United States, to Nancy Pelosi, Speaker, House of Representatives
(May 15, 2020); Joint Staff Report, Sen. Fin. Comm., The Firing of the Inspector General for the Corporation for
National and Community Service, 111th Cong. (2009) at 47.
68 Walpin v. Corp. For Nat'l & Cmty. Servs., 630 F.3d 184, 187 (D.C. Cir. 2011). In a mandamus suit, a party must
show a “’clear and indisputable right to relief’ based on a ‘clear and compelling duty’ to act….” Id.
69 Id. at 185.
70 Id.
71 Id. at 187.
72 Id.
Congressional Research Service
8

link to page 32 Congress’s Authority to Limit the Removal of Inspectors General

with enough information to assess whether a planned IG removal is based on grounds that
Congress would deem concerning.73
Thus, while recent presidential actions may comply with IG Act requirements, the President’s
placing an IG on administrative leave prior to removal and articulating only that the removal is
based on a lack of confidence appears to be inconsistent with Congress’s aspirational intent for
how the notification requirements would work in practice. The legislative history of the IG Act
seems to indicate Congress’s hope 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
necessary to make an informed response to the presidential action.74
To give force and effect to its aspirational intent, but mindful of the possible operational
implications to IGs, Congress could choose to strike the balance between autonomy,
accountability, and supervision differently. Increasing IG independence and decreasing executive
branch influence could be achieved in various ways, but restricting the President’s (or a DFE’s)
ability to remove IGs would perhaps be the most direct approach. Congress could, therefore, look
to protect IGs from what it may view as unwarranted removals by prohibiting termination of an
IG except “for cause.”75 Yet, Congress’s constitutional authority in this area is fraught with
uncertainty and directly implicates the constitutional separation of powers and the President’s
Article II powers. Altering the removal of IGs would accordingly be subject to certain
constitutional constraints and considerations addressed below.
Legal Principles of Removal: Constitutional
Parameters of Statutory Controls
Congress has the constitutional authority to create executive branch offices; empower those
offices through the delegation of authority; select (subject to the constraints of the Appointments
Clause) the method by which an office is filled; and when necessary, design an office in a way

73 For instance, the legislative history accompanying the IG Act and its subsequent amendments reflect a view that
Congress should 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.” S. REP. NO. 110-262, at 9 (2008). See also S. REP. NO. 95-1071, at 26
(1978) (“While 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.”).
74 S. REP. NO. 95-1071, at 26 (1978); S. REP. NO. 110-262, at 8-9 (2008).
75 In the 116th Congress, the House approved legislation that would do just that. H.R. 6800, 116th Cong. Div. G, §
70104 (2020) (as passed by the House, May 15, 2020). Moreover, federal law already extends “for cause” protections
to the Postal Service IG. See 39 U.S.C. § 202(e) (providing that the Postal Service IG shall be “at any time be removed
upon the written concurrence of at least 7 Governors, but only for cause.”). The constitutionality of that provision,
however, may be in question as a result of the Supreme Court’s ruling in Free Enterprise Fund v. Public Company
Accounting Oversight Board, 561 U.S. 477 (2010), holding that Congress cannot insulate an officer from presidential
control with dual layers of for cause protections. See infra notes 166-68. The Postal Service IG may only be removed
for cause by the Postal Service Board of Governors, who in turn, are only removable by the President “for cause.” As
described below, however, that may depend on whether the Postal Service IG is an “Officer of the United States.” See
infra “Are IGs Officers of the United States?”
Congressional Research Service
9

Congress’s Authority to Limit the Removal of Inspectors General

that encourages operational independence from the political influence of the executive branch or
(much less frequently) Congress itself.76
In practice, the independence enjoyed by a given office is not easily quantifiable, nor even
sometimes readily discernible.77 And rather than representing a binary choice, independence
arguably rests on a sliding scale that Congress can calibrate (within constitutional limits) to
achieve the desired level of autonomy through the use of various statutory characteristics.78
Typical “independence-promoting features” provided in statute include options such as fixed-
length terms for officeholders, apolitical or bipartisan appointment requirements, reduced day-to-
day supervision, exemption from centralized executive branch rulemaking or appropriations
review, independent litigating authority, and most importantly, removal restrictions.79
Statutory Removal Restrictions
Removal restrictions are creatures of statute, meaning they can vary by legislative enactment.
Restrictions can be primarily procedural, as with the existing IG Act provision that requires only
that the President provide advance notice prior to a removal.80 Or they can impose substantive
limitations on the reasons for which the President can remove an official. These substantive
restrictions often take the form of a provision that permits the President to remove an official only
“for cause.” These “for cause” removal provisions do not completely deny the President the
power of removal,81 but instead cabin that power by explicitly articulating the permissible
justifications for its exercise.
There is no uniform “for cause” statutory template to be applied to every IG. However, the typical
provision prevents the President, or another executive branch officer, from removing an identified
official except in cases of “inefficiency, neglect of duty, or malfeasance in office.”82 Congress,
however, can adjust this language to make a given provision either more or less restrictive.83 Yet,

76 See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 500 (2010) (“Congress has plenary
control over the salary, duties, and even existence of executive offices.”); Myers v. United States, 272 U.S. 52, 129
(1926) (“To Congress under its legislative power is given the establishment of offices, the determination of their
functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of
appointees, and the fixing of the term for which they are to be appointed and their compensation.”). See generally CRS
Report R45442, Congress’s Authority to Influence and Control Executive Branch Agencies, by Todd Garvey and
Daniel J. Sheffner.
77 Seila Law, LLC, v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2237 (2020) (Kagan, J. dissenting in part) (“A
given agency’s independence (or lack of it) depends on a wealth of features, relating not just to removal standards, but
also to appointments practices, procedural rules, internal organization, oversight regimes, historical traditions, cultural
norms, and (inevitably) personal relationships. It is hard to pinpoint how those factors work individually, much less in
concert, to influence the distance between an agency and a President.”).
78 See Datla and Revesz, supra note 39, at 784 (noting that “the binary distinction between independent and executive
agencies is false.”).
79 See, e.g., Collins v. Mnuchin, 896 F.3d 640, 660-61 (5th Cir. 2018), reh’g en banc, 938 F.3d 553 (2019), cert.
granted, 141 S. Ct. 193 (2020).
80 5 U.S.C. App. § 3(b).
81 Morrison v. Olson, 487 U.S. 654, 692 (1988) (noting that for cause removal protections do not create “a case in
which the power to remove an executive official has been completely stripped from the President, thus providing no
means for the President to ensure the ‘faithful execution’ of the laws”).
82 See Bowsher v. Synar, 478 U.S. 714, 725 n.4 (1986) (noting that “statutes establishing independent agencies
typically specify that an official is removable only “for inefficiency, neglect of duty, or malfeasance in office’”).
83 See Free Enter. Fund, 561 U.S. at 503 (describing the removal provision limiting PCAOB members’ removal to
willful violations of certain laws as an “unusually high standard”).
Congressional Research Service
10

Congress’s Authority to Limit the Removal of Inspectors General

because “it appears that no President has ever actually sought to” directly test “the scope of a ‘for
cause’ provision,” the courts have never clearly defined what type of misconduct falls within the
meaning of the typical language.84
The Supreme Court has suggested that “inefficiency,” “neglect of duty,” and “malfeasance” are
“very broad” terms and could “sustain removal . . . for any number of actual or perceived
transgressions….”85 The D.C. Circuit has similarly described the usual for cause formulation as a
“modest” limitation, requiring only that the official may not be removed for “personal or partisan
reasons, or for no reason at all.”86 But most recently, in Seila Law v. Consumer Financial
Protection Bureau (CFPB), the Supreme Court viewed the for cause provision protecting the
Director of the CFPB as “impos[ing] a meaningful restriction on the President’s removal
authority,” at least when read in the context of the statute creating the CFPB.87 As such, despite
the relative prevalence of “for cause” restrictions in federal law, there is significant uncertainty as
to the degree of protection the provisions actually provide. However interpreted, Congress’s
authority to provide executive branch officials with removal restrictions is subject to important,
though ambiguous, constitutional limits.
The Removal Power
Congress’s exercise of its broad power to create and structure the executive branch bureaucracy at
times comes into tension with other constitutional principles, including the separation of powers.
For example, congressional attempts to design agencies or offices in a way that encourages
independence can collide with the President’s implied constitutional power to exercise “general
administrative control” over the executive branch and its officials.88 This presidential power over
executive branch personnel derives from Article II of the Constitution.89 It is founded in the
proposition that the Constitution—by vesting “the executive Power” solely in the President and
making it his personal responsibility to “take Care that the Laws be faithfully executed”—confers
upon the President both the power and the duty to supervise and control those who exercise
executive power.90 The doctrine also serves to protect the Constitution’s interest in accountability:
those who execute the law must be accountable to the President who, in turn, is accountable to the
voting public. Absent that “clear and effective chain of command,” accountability is diffused, and
“the public cannot determine where the blame for a pernicious measure should fall.”91 As such,
statutory features that excessively insulate an official from the President, such that he no longer
exercises the “meaningful” or “adequate” control necessary to ensure accountability, violate the
separation of powers.

84 Id. at 524 (Breyer, J., dissenting). See also Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause
Removal, 52 U. RICH. L. REV. 691, 691-737 (2018) (describing President Taft’s removal of an official after providing
notice and a hearing).
85 This statement was made in connection to a provision that protected the Comptroller General from at will removal by
Congress. Bowsher, 478 U.S. at 729.
86 PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 90 (D.C. Cir. 2018), abrogated by Seila Law LLC v.
Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020).
87 Seila Law, 140 S. Ct. at 2207. The court was “not persuaded” that the provision left the President with “substantial
discretion” to remove the Director. Id. at 2206.
88 See Free Enter. Fund, 561 U.S. at 492-93 (“Article II confers on the President “the general administrative control of
those executing the laws.”) (citing Myers v. United States, 272 U.S. 52, 164 (1926)).
89 Id.
90 U.S. CONST. art. II, §§ 1, 2.
91 Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 479 (2010).
Congressional Research Service
11

Congress’s Authority to Limit the Removal of Inspectors General

While a President can control executive officials in various ways, such as through leveraging the
influence of his office, the Supreme Court has observed that the “‘bureaucratic minutiae’ a
President might use to corral agency personnel is no substitute for at will removal.”92 Thus, a key
mechanism by which the President supervises his subordinates’ enforcement and execution of the
law, and thereby ensures their accountability to him, is the power of removal.93 As previously
noted, the Supreme Court has recognized that the power to remove an official is “a powerful tool
for control,” for it is that authority that the subordinate official “must fear and, in the performance
of his functions, obey.”94 The mere threat of removal thereby acts as a “Damocles’ sword,”
hanging over an official and deterring (but not prohibiting) action inconsistent with presidential
priorities.95
Removal is not only an effective tool of control, it is also one that the President possesses by
virtue of the Constitution.96 Although the Constitution does not speak directly on the matter, the
Supreme Court has made clear that “the Constitution has been understood to empower the
President to keep [his] officers accountable—by removing them from office, if necessary.”97 It is
a power that “has long been confirmed by history and precedent” and one that ensures that the
President remain responsible for exercises of “[t]he executive Power.”98
The removal power also derives from the practical nature of governing. Although “[t]he executive
Power” is vested in the President alone, it has been described as too great for “one man” to
perform on his own.99 As such, lesser executive branch offices have and may be created by
Congress to assist the President. But, if it is the President’s responsibility to “take care that the
laws be faithfully executed,” then the President “must have some ‘power of removing those for
whom he cannot continue to be responsible.’”100 Thus, the Constitution generally confers the
President with “the authority to remove those who assist him in carrying out his duties.”101
The question is what authority Congress has to limit this constitutional power of removal. On that
front, the Court’s removal jurisprudence continues to shift and develop. For some time, the
Supreme Court sought to balance the powers of Congress and the President by asking whether the
independence created by a given removal restriction impermissibly interfered with the President’s
ability to carry out his constitutional function, including his responsibility to “take care” that his
subordinates faithfully execute the law.102 This analytical framework established few clear lines,
and as a result, judicial assessment of statutory removal limitations often plunged courts into “a

92 Seila Law, 140 S. Ct. at 2207 (citing Free Enter. Fund, 561 U.S. at 500).
93 Free Enter. Fund, 561 U.S. at 501 (“A key ‘constitutional means’ vested in the President—perhaps the key means—
was ‘the power of appointing, overseeing, and controlling those who execute the laws.’”) (citations omitted).
94 Edmond v. United States, 520 U.S. 651, 664 (1997); Bowsher v. Synar, 478 U.S. 714, 726 (1986). Or, as Justice
Kavanaugh put it while serving on the D.C. Circuit: “the power to remove is the power to control.” In re Aiken Cty.,
645 F.3d 428, 442 (D.C. Cir. 2011).
95 Wiener v. United States, 357 U.S. 349, 356 (1958).
96 See Seila Law, 140 S. Ct. at 2206 (“[T]ext, first principles, the First Congress’s decision in 1789, Myers, and Free
Enterprise Fund all establish that the President’s removal power is the rule, not the exception.”).
97 1 ANNALS OF CONG. 463 (1789) (“If any power whatsoever is in its nature Executive, it is the power of appointing,
overseeing, and controlling those who execute the law.”).
98 Seila Law, 140 S. Ct. at 2197.
99 Id.
100 Free Enter. Fund, 561 U.S. at 493. But those subordinate officers “must remain accountable to the President, whose
authority they wield.” Seila Law, 140 S. Ct. at 2197.
101 Seila Law, 140 S. Ct. at 2198 (citing Free Enter. Fund, 561 U.S. at 513-14).
102 U.S. CONST. art. II, § 2.
Congressional Research Service
12

Congress’s Authority to Limit the Removal of Inspectors General

vast ‘field of doubt,’” where they were left to wrestle with the question of how much
independence is too much?103 But, as discussed below, the Court now appears to be settling on a
more explicit conception of the removal power, including a default constitutional principle that
the President must retain the power to remove executive branch officers, subject to at least two
identified exceptions: one for “multi-member expert agencies that do not wield substantial
executive power” and another for individual “inferior officers with limited duties and no
policymaking or administrative authority.”104
The Relationship Between Appointment and Removal
Before addressing the Court’s removal jurisprudence, it is important to note that removal cases
often involve issues arising from the Appointments Clause. The constitutional principles applying
to appointments and removals are intimately related: one governs the start of an official’s tenure,
while the other governs the end. By ensuring that those executing the laws are responsible and
accountable to the President, each principle acts as a guardrail to Congress’s authority to structure
executive offices, and they ensure that the President may staff the highest levels of the executive
bureaucracy with officials of his own choosing.
The Appointments Clause limits Congress’s involvement in the appointment of “Officers of the
United States” and ensures the President’s role in selecting the most powerful executive branch
officials.105 Under the Clause, principal officers must be appointed by the President, “with the
Advice and Consent of the Senate,” while Congress may vest the appointment of “inferior
Officers” “in the President alone, in the Courts of Law, or in the Heads of Departments.”106 Non-
officers—that is, “mere employees”—are not subject to any constitutionally required method of
appointment.107 As the Supreme Court recently put it, “the Appointments Clause cares not a whit
about who name[s]” employees.”108
An executive branch official’s classification for Appointments Clause purposes typically depends
both on the amount of authority the official exercises and the discretion with which they wield
that authority.109 Generally, if an executive official110 holds a “continuing position established by
law” and has “significant authority pursuant to the laws of the United States,” he is an “Officer of

103 Collins v. Mnuchin, 896 F.3d 640, 661 (5th Cir. 2018), reh’g en banc, 938 F.3d 553 (2019), cert. granted, 141 S. Ct.
193 (2020) (citing Humphrey's Ex’r v. United States, 295 U.S. 602, 632 (1935)). See also Bowsher v. Synar, 478 U.S.
714, 762-763 (1986) (White, J., dissenting) (“This inquiry is, to be sure, not one that will beget easy answers; it
provides nothing approaching a bright-line rule or set of rules.”).
104 Seila Law, 140 S. Ct. at 2200.
105 U.S. CONST. art. II, § 2, cl. 2.
106 Id.; Freytag v. Comm’r, 501 U.S. 868, 878 (1991) (“Thus, the Constitution limits congressional discretion to vest
power to appoint ‘inferior Officers’ to three sources: ‘the President alone,’ ‘the Heads of Departments,’ and ‘the Courts
of Law.’”).
107 Lucia v. SEC, 138 S. Ct. 2044, 2049 (2018) (explaining that officers constitute “a class of government officials
distinct from mere employees”); Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976) (per curiam) (stating that
“[e]mployees are lesser functionaries subordinate to officers of the United States”).
108 Lucia, 138 S. Ct. at 2051.
109 See, e.g., Edmond v. United States, 520 U.S. 651, 662 (1997) (acknowledging that military appellate judges exercise
“significant authority”); Freytag, 501 U.S. at 881–82 (holding that special trial judges of an Article I tax court are
“Officers of the United States” based on the degree of authority they exercise); Buckley, 424 U.S. at 138 (concluding
that members of the Federal Election Commission exercised “significant authority”).
110 An officer also generally must hold a position that is “continuing position established by law.” Lucia, 138 S. Ct. at
2051 (citing United States v. Germaine, 99 U.S. 508, 511 (1879)).
Congressional Research Service
13

link to page 32 link to page 32 Congress’s Authority to Limit the Removal of Inspectors General

the United States.”111 So with respect to most statutorily established offices, the judicially created
dividing line between “officers” and “employees” is the easily stated, but highly malleable
standard of “significant authority.”112 The Supreme Court has provided no clear definition of what
constitutes “significant authority,” and as such, “virtually every court and commentator begins”
an Appointments Clause analysis “by conceding that the case law, and hence, the doctrine . . . is
unclear.”113 Yet finding that a position within the executive branch exercises “significant
authority” triggers a series of important constitutional requirements. If a power is significant, it
may be exercised only by an “Officer,” and an Officer (either inferior or principal) must be
appointed in the manner prescribed by the Appointments Clause.114
If it is established that the “significant authority” threshold is crossed, the applicable standard for
then distinguishing between principal officers—who must be appointed with the advice and
consent of the Senate—and inferior officers—whose appointment Congress may vest
elsewhere—is also subject to some debate.115 The Supreme Court has “not set forth an exclusive
criterion for distinguishing between principal and inferior officers.”116 Indeed, in Seila Law the
Court explained that although it had never “set forth an exclusive criterion for distinguishing
between principal and inferior officers,” it had considered previously “factors such as the nature,
scope, and duration of an officer’s duties. More recently, we have focused on whether the
officer’s work is ‘directed and supervised’ by a principal officer.”117 The Court’s more recent
focus on whether the officer’s work is directed and supervised by another suggests that the
distinction between an inferior and principal officer hinges mainly on whether the officer is
subject to supervision by some higher official.118 Under this approach, principal officers are
generally subject only to supervision by the President, while inferior officers are generally subject
to supervision by a higher-ranking, Senate-confirmed official.119
An executive branch official’s classification as employee, inferior officer, or principal officer
largely governs the method by which they may be appointed under the Appointment Clause. That
same classification also has a role in determining Congress’ freedom to impose removal
restrictions, but it is not necessarily a dispositive one.120 The Supreme Court has in the past

111 Id.; Buckley, 424 U.S. at 126 (internal quotation marks omitted)).
112 The powers and functions that may constitute “significant authority” are discussed in greater detail infra, “Are IGs
Officers of the United States?”
113 John T. Plecnik, Officers Under the Appointments Clause, 11 PITT. TAX REV. 201, 204 (2014).
114 Buckley, 424 U.S. at 126 (“Any appointee exercising significant authority pursuant to the laws of the United States
is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of [Article
II].”).
115 Edmond, 520 U.S. at 661 (“Our cases have not set forth an exclusive criterion for distinguishing between principal
and inferior officers for Appointment Clause purposes.”).
116 Seila Law, LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2199 n.3 (2020) (citing Edmond, 520 U.S. at 661).
In Morrison, for example, the Court employed a functional analysis that would suggest that the principal/inferior
distinction is governed by evaluating the degree of authority exercised by a particular officer. See Morrison v. Olson,
487 U.S. 654, 671-72 (1988) (deciding that “[s]everal factors lead to th[e] conclusion” that the independent counsel is
an inferior officer).
117 Seila Law, 140 S. Ct. at 2199 n. 3.
118 Edmond, 520 U.S. at 663; Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 510 (2010); Seila
Law, 140 S. Ct. at 2199 n.3.
119 Edmond, 520 U.S. at 663.
120 Seila Law, 140 S. Ct. at 2192 (describing different standards for removal restrictions on principal and inferior
officers); PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 96 n.2 (D.C. Cir. 2018) (“While that distinction is
constitutionally relevant to the President's appointments power, it is not determinative of the removal.”).
Congressional Research Service
14

Congress’s Authority to Limit the Removal of Inspectors General

upheld “for cause” removal protections for both inferior officers and principal officers (when part
of a certain type of multimember commission).
This report now turns to the Court’s attempt to reconcile Congress’s authority to create
independent offices with the President’s power of removal.
The Supreme Court’s Removal Jurisprudence: Myers Through
Seila Law
The Supreme Court’s removal jurisprudence has evolved over time. That progression is evident in
six seminal cases, including Seila Law, issued by the Supreme Court in 2020. After initially
adopting a relatively broad view of the President’s removal power in Myers, the Court
subsequently narrowed that holding by recognizing Congress’ authority to limit the removal of
executive branch officials in cases like Humphrey’s Executor v. United States, Wiener v. United
States, and Morrison v. Olson. More recently, however, the Court has adjusted course and
rebuffed congressional attempts to create novel structural arrangements that include for cause
protections in favor of protecting the President’s power to hold his subordinates accountable
through an unrestricted removal power.
The 1926 decision of Myers v. United States invalidated a statutory provision that prohibited the
President from removing an executive official—a postmaster—without first obtaining the advice
and consent of the Senate.121 Myers recognized that “the executive power” vested in the President
by Article II includes “the power of appointment and removal of executive officers.”122 “To hold
otherwise,” and permit Congress to control effectively the removal of an executive branch
official, the Court concluded, “would make it impossible for the President…to take care that the
laws be faithfully executed.”123
But the Court’s holding in Myers extended beyond removal, also laying the foundation for the
broader presidential power to exercise “general administrative control of those executing the
laws….”124 The various duties assigned to executive branch officers by law, the Court reasoned,
“come under the general administrative control of the President by virtue of the general grant to
him of the executive power, and he may properly supervise and guide their construction of the
statutes under which they act in order to secure that unitary and uniform execution of the
laws….”125
The Court began a long process of chipping away at Myers’ broad conception of presidential
power shortly thereafter in Humphrey’s Executor v. United States.126 In Humphrey’s, the Court

121 Myers v. United States, 272 U.S. 52 (1926).
122 Id. at 164.
123 Id.
124 Id. at 163-64 (“Article II grants to the President the executive power of the Government, i.e., the general
administrative control of those executing the laws, including the power of appointment and removal of executive
officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed.”).
125 Id. at 135. This statement is in some tension with the Court’s earlier statement in Kendall v. United States, 37 U.S.
524, 610 (1838) (“There are certain political duties imposed upon many officers in the executive department, the
discharge of which is under the direction of the President. But it would be an alarming doctrine, that congress cannot
impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and
protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of
the law, and not to the direction of the President.”).
126 295 U.S. 602 (1935). See Wiener v. United States, 357 U.S. 349, 352 (1958) (“The assumption was short-lived that
the Myers case recognized the President's inherent constitutional power to remove officials no matter what the relation
Congressional Research Service
15

Congress’s Authority to Limit the Removal of Inspectors General

made clear that the President’s removal power was not “illimitable,” and the Court gave its
explicit consent to the use of “for cause” removal restrictions, at least as applied to officers (in
this case principal officers) whose function necessitates some degree of political independence.127
The Humphrey’s opinion held that Congress could limit the President’s ability to remove
members of the Federal Trade Commission (FTC)—a multimember independent agency—
primarily because of what the Humphrey’s Court characterized as the “quasi-legislative and
quasi-judicial” function of the agency.128 In this manner Humphrey’s distinguished Myers, and
instead balanced the powers of Congress and the President differently depending on whether the
“character of the office” could be deemed to be “purely executive.”129 Unlike a postmaster, the
Court found the FTC was clearly not “purely executive.” Its authority to make “investigations and
reports [] for the information of Congress” suggested that it operated “in aid of the legislative
power,” and indeed was acting in that capacity as “a legislative agency.”130 The Court reasoned
that when creating such an office, Congress’s authority “to require” the official “to act in
discharge of their duties independently of executive control… and to forbid their removal except
for cause” could not be “doubted.”131
In reaching its decision, the Humphrey’s Court recognized the practical importance of the
removal protections to Congress’s goal of FTC independence. The Court noted that the FTC was
“to be non-partisan” and “act with entire impartiality.”132 “Its duties,” the Court noted, “are
neither political nor executive, but predominantly quasi-judicial and quasi-legislative.”133 The
necessity of removal protections in designing such an office was “evident” to the Court as “one
who holds his office only during the pleasure of another, cannot be depended upon to maintain an
attitude of independence against the latter’s will.”134
If Humphrey’s began the narrowing of Myers, then Wiener v. United States continued it with
vigor.135 In Wiener, a member of a federal commission established to adjudicate war claims
arising from World War II challenged President Eisenhower’s authority to remove him without
cause. Cutting straight to the scope of the President’s constitutional power, Wiener held that even
in the absence of statutory removal protections, the President had no “inherent power” to remove
a member of a quasi-judicial body “merely because he wanted his own appointees” in the
position.136 Distinguishing Myers, the Court stated:
[t]he assumption was short-lived that the Myers case recognized the President's inherent
constitutional power to remove officials no matter what the relation of the executive to the

of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding
the nature of their tenure.”).
127 Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935). The statute at issues in Humphrey’s provided that
individual commissioners could only be removed during their seven-year term for “inefficiency, neglect of duty, or
malfeasance in office.” Id. at 621-22.
128 Id.
129 Id. at 631.
130 Id. at 628
131 Id. at 629.
132 Id. at 624.
133 Id.
134 Id. 629.
135 Wiener v. United States, 357 U.S. 349 (1958).
136 Id. at 356 (“[W]e are compelled to conclude that no such power is given to the President directly by the
Constitution, and none is impliedly confirmed upon him by statute. . . .”).
Congressional Research Service
16

Congress’s Authority to Limit the Removal of Inspectors General

discharge of their duties and no matter what restrictions Congress may have imposed
regarding the nature of their tenure.137
Instead, like Humphrey’s, the Court looked to the function of the Commission, and drew a “sharp
differentiation” between those who were “part of the Executive establishment and were thus
removable by virtue of the President’s constitutional powers,” and those “whose tasks require
absolute freedom from Executive interference” who were not.138 As such, the Weiner opinion held
that even in the absence of explicit removal protections, the Constitution grants the President no
power to remove a member of the commission “merely because he wanted his own appointees” to
serve.139
The Court’s march away from Myers’ broad formulation of the President’s removal power
culminated in Morrison v. Olson.140 In Morrison, the Court again approved of statutorily imposed
for cause removal protections, this time as applied to an Independent Counsel (IC). The IC was an
inferior officer authorized to conduct independent investigations and prosecutions of high-level
government officials.141 The Court upheld a statutory framework that prevented the Attorney
General from removing the IC except “for cause,”142 but only after determining that Congress had
afforded the President adequate authority to oversee the IC and ensure that the official faithfully
executed and enforced the law. This oversight was primarily exercised through the Attorney
General, who controlled whether an IC was appointed, played a significant role in initially
limiting the ICs jurisdiction, established DOJ policies and regulations to which the IC was
subject, and could remove the IC for cause.143
As in Humphrey’s, the Court acknowledged that the removal restrictions were “essential…to
establish the necessary independence of the office.”144 But notably, the Morrison opinion
explicitly departed from Humphrey’s and its distinction between quasi-legislative or quasi-
judicial functions and purely executive functions.145 Instead, the Court noted that its prior removal
jurisprudence was “designed not to define rigid categories of those officials who may or may not

137 Id. at 352.
138 Id. at 353. The Court viewed the claims commission as having a “judicial character” because “[t]he claims were to
be ‘adjudicated according to law,’ that is, on the merits of each claim, supported by evidence and governing legal
considerations, by a body that was ‘entirely free from the control or coercive influence, direct or indirect,’, of either the
Executive or the Congress.” Id. at 355-56 (citing Humphrey's Ex’r v. United States, 295 U.S. 602, 629 (1935).
139 Id. at 356 (“Judging the matter in all the nakedness in which it is presented, namely, the claim that the President
could remove a member of an adjudicatory body like the War Claims Commission merely because he wanted his own
appointees on such a Commission, we are compelled to conclude that no such power is given to the President directly
by the Constitution, and none is impliedly conferred upon him by statute simply because Congress said nothing about
it.”).
140 Morrison v. Olson, 487 U.S. 654 (1988).
141 Id. at 671.
142 The IC was removable by the Attorney General “only for good cause, physical or mental disability . . . or any other
condition that substantially impairs the performance of such independent counsel's duties.” 28 U.S.C. § 596. The IC
provisions have since sunset. See id. § 599.
143 Morrison, 487 U.S. at 692 (“[T]he Executive, through the Attorney General, retains ample authority to assure that
the counsel is competently performing his or her statutory responsibilities in a manner that comports with the
provisions of the Act.”). The Attorney General was vested with the authority to trigger the appointment of an IC, but
the actual selection was at the discretion of the special division. 28 U.S.C. §§ 592, 593.
144 Morrison, 487 U.S. at 693.
145 Id. at 689 (“We undoubtedly did rely on the terms ‘quasi-legislative’ and ‘quasi-judicial’ to distinguish the officials
involved in Humphrey's Executor and Wiener from those in Myers, but our present considered view is that the
determination of whether the Constitution allows Congress to impose a ‘good cause’-type restriction on the President's
power to remove an official cannot be made to turn on whether or not that official is classified as ‘purely executive.’”).
Congressional Research Service
17

Congress’s Authority to Limit the Removal of Inspectors General

be removed at will by the President, but to ensure that Congress does not interfere with the
President’s exercise of the “executive power” and his constitutionally appointed duty to “take
care that the laws be faithfully executed” under Article II.”146 Thus, the appropriate standard to be
applied was whether “the removal restrictions are of such a nature that they impede the
President’s ability to perform his constitutional duty.”147
Engaging in that assessment, the Court considered both the IC’s function and the degree to which
the statutory for cause protection undermined the President’s ability to control the IC. With regard
to the IC’s function, the Court acknowledged that there was “no real dispute” that “functions
performed by the independent counsel are ‘executive.’”148 However, because the IC was “an
inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking
policymaking or significant administrative authority,” the Court concluded that “we simply do not
see how the President’s need to control the exercise of that discretion is so central to the
functioning of the Executive Branch as to require as a matter of constitutional law that the
counsel be terminable at will by the President.”149
As to the President’s actual control, the Morrison opinion acknowledged that the IC exercised
“no small amount of discretion and judgment in deciding how to carry out his or her duties” and
that it was “undeniable that the Act reduces the amount of control or supervision that the Attorney
General and, through him, the President exercises over the” IC.150 The Court nevertheless held
that “because the independent counsel may be terminated for ‘good cause,’ (including removal for
“misconduct”) the Executive, through the Attorney General, retains ample authority to assure that
the counsel is competently performing his or her statutory responsibilities in a manner that
comports with the provisions of the Act.”151 Congress, the court concluded, had not “sufficiently
deprive[d] the President of control over the independent counsel to interfere impermissibly with
his constitutional obligation to ensure the faithful execution of the laws.”152
The Court altered course toward a more Myers-centric and restrained view of Congress’s
authority to limit the President’s removal power in the 2010 case of Free Enterprise Fund v.
Public Company Accounting Oversight Board (PCAOB).153 There, the Court invalidated statutory
provisions providing that members of the PCAOB could be removed only for cause by the
Securities and Exchange Commission (SEC), whose members were, in turn, also protected from
removal by for cause removal protections.154 By insulating PCAOB members (who were deemed
to be inferior officers) from presidential control with two layers of for cause removal protections,

146 Id. at 689-90.
147 Id. at 693–96 (“Although the counsel exercises no small amount of discretion and judgment in deciding how to carry
out his or her duties under the Act, we simply do not see how the President's need to control the exercise of that
discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the
counsel be terminable at will by the President.”).
148 Id. at 691.
149 Id. at 691-92.
150 Id. at 695.
151 Id. at 692.
152 Id. at 693.
153 Between Morrison (1988) and Free Enterprise Fund (2010) the Court considered other Appointments Clause cases
that, though not directly addressing the removal of federal officers, might be relevant to an analysis of that issue. See
e.g, Edmond v. United States, 520 U.S. 651 (1997) (classifying a Coast Guard Court of Criminal Appeals judge as an
inferior officer) Freytag v. Comm’r, 501 U.S. 868 (1991) (classifying a U.S. Tax Court special trial judge as an inferior
officer).
154 561 U.S. 477, 491–98 (2010).
Congressional Research Service
18

Congress’s Authority to Limit the Removal of Inspectors General

the law had “impaired” the President’s necessary authority to “hold[] his subordinates
accountable for their conduct” and “subvert[ed] the President’s ability to ensure that the laws are
faithfully executed.”155
Free Enterprise Fund clearly affirmed Myers’ principal holding that Article II vests the President
with “general administrative control of those executing the laws.”156 “The President cannot ‘take
Care that the Laws be faithfully executed,’” the Court held, “if he cannot oversee the faithfulness
of the officers who execute them.”157 In short, “Officers of the United States” exercising
significant executive power must be accountable to the President. But, by leaving the removal
protections provided to the SEC commissioners undisturbed, the Court also implicitly affirmed
Congress’s authority to use for-cause removal restrictions to promote independence of officers in
certain circumstances. The opinion also explicitly left open the question of how much control, if
any, the President must exercise over non-officers.158 It did not decide “whether ‘lesser
functionaries subordinate to officers of the United States’ must be subject to the same sort of
control as those who exercise ‘significant authority pursuant to the laws.’”159
Free Enterprise Fund indicated the Court’s renewed resistance to extending Congress’s authority
to insulate executive officers from presidential removal beyond those configurations already
approved in prior precedents. In its most recent removal opinion, Seila Law v. CFPB, the Court
reaffirmed that same approach by again invalidating the use of for cause removal restrictions in
another “novel context”—this time with respect to an independent agency with significant
executive power and led by a single Director.160
Seila Law involved a challenge to the structure of the CFPB, which as created by the Dodd Frank
Act, is led by a single director with a five-year term. That Director was a principal officer
exercising significant and extensive executive power, but removable by the President only for
cause.161 The Director was authorized to issue rules and regulations, conduct investigations, file
lawsuits in federal court, bring enforcement actions, and impose civil penalties for violations of
consumer finance law.162 He was also authorized to request funding directly from the Federal
Reserve, rather than through the annual congressional appropriations process, which gives the
CFPB added independence from Congress.163
Ultimately the Court held in Seila Law that Congress cannot vest a principal officer with
“significant executive power,” place that officer in sole charge of an agency, and then protect that
individual from presidential removal except for cause.164 In doing so, the opinion solidified the

155 Id. at 495–98 (concluding that the “[a]dded layer of tenure protection…not only protects Board members from
removal except for good cause, but withdraws from the President any decision on whether that good cause exists”).
156 Id. at 492 (citing Myers, 272 U.S. at 164).
157 Id. at 484.
158 Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam).
159 Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 506 (2010) (noting that, in theory, the
constitutional defect could be avoided if the Court could “blue-pencil a sufficient number of the Board's responsibilities
so that its members would no longer be ‘Officers of the United States’”).
160 Seila Law, LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2192 (2020).
161 12 U.S.C. § 5491(c)(3). Seila Law, 140 S. Ct. at 2191 (“The CFPB Director has no boss, peers, or voters to report to.
Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U. S.
economy.”).
162 12 U.S.C. §§ 5512, 5562-64.
163 Id. § 5497.
164 Seila Law, 140 S. Ct. at 2192.
Congressional Research Service
19

Congress’s Authority to Limit the Removal of Inspectors General

beachhead against further expansion of Congress’s authority to restrict the removal of executive
branch officers that was started in Free Enterprise.
The Court also averred that it had “recognized only two exceptions to the President’s
unrestricted” power to remove “those who assist him in carrying out his duties.”165 First, under
Humphrey’s, Congress can “create expert agencies led by a group of principal officers removable
by the President only for good cause.”166 And second, under cases like Morrison, Congress can
“provide tenure protections to certain inferior officers with narrowly defined duties.”167 The
CFPB Director was not analogous to either exception because the Director was neither a member
of a multimember commission nor an inferior officer, but instead unilaterally wielded “significant
governmental power” while being “accountable to no one.”168 Upholding this “almost wholly
unprecedented” configuration would thus require the Court to “extend” the existing exceptions to
the President’s “unrestricted removal power,” something the Court was not willing to do.169
The Seila Law opinion is notable for a variety of reasons. First, the opinion establishes that
“principal officers who, acting alone, wield significant executive power,” must be removable by
the President at will.170 It appears then, that Congress may not structure agencies (at least those
that wield significant governmental power) so as to be led by a single official protected by for
cause removal protections. Such an arrangement is not only a “historical anomaly” supported
only by “modern and contested” examples, but also “incompatible” with the Constitution’s
penchant for dividing power to “avoid[] concentrating power in the hands of any single
individual.”171 Whether distributing authority between the federal government and the states, the
three branches, or even between the House and the Senate, the Framers diffused power in order to
combat its abuse.172 Allowing Congress to create an agency that concentrated significant amounts
of executive power in a single individual not directly accountable to the President, the Court
reasoned, “contravenes this carefully calibrated system.”173
But perhaps of greater significance, the opinion also clarified the scope of the “exceptions” to
presidential removal established in Humphrey’s and Morrison. The Court reiterated that
Humphrey’s and Morrison mark the “outermost constitutional limits of permissible congressional
restrictions on the President’s removal power” and characterized both cases as narrow exceptions
to the President’s otherwise “unrestricted removal power.”174 The Court arguably narrowed both
decisions: describing Humphrey’s as approving for cause protections for principal officers when
they are part of a “multimember body of experts, balanced along partisan lines, that performed
legislative and judicial functions and was said not to exercise any executive power,”175 while
Morrison approved only of for cause protections for “inferior officers with limited duties and no

165 Id.
166 Id.
167 Id.
168 Id. at 2203.
169 Id. at 2192, 2201.
170 Id. at 2211.
171 Id. at 2202.
172 Id. at 2202-203.
173 Id. at 2203.
174 Id. at 2200, 2189.
175 Id. at 2199 (emphasis added).
Congressional Research Service
20

Congress’s Authority to Limit the Removal of Inspectors General

policymaking or administrative authority.” Notably, however, the Court stated that it saw no need
to “revisit” either precedent.176
But in arguably narrowing the application of both Humphrey’s and Morrison cases, the Seila Law
opinion underscored the importance of an official’s status as either an inferior or principal officer
to the permissibility of removal restrictions.177 Seila Law’s chief impact, especially with regard to
removal protections for sole officials, may therefore be to enlarge the role Appointments Clause
principles will play in future removal cases. Under Seila Law, Congress is generally restricted
from providing a sole principal officer with for cause removal protections—though the case
appears to leave open the question of whether Congress can limit the President’s authority to
remove a principal officer who is not “vested with significant executive power.”178 Inferior
officers are treated differently. Unlike a principal officer, an inferior officer who wields power
unilaterally may be made removable for cause, so long as the officer’s function is analogous to
that of the IC—namely that the inferior officer is charged with “limited duties” and has “no
policymaking or administrative authority.”179
Summary of the Supreme Court’s Removal Principles
Although Congress’s authority to limit the President’s power of removal is somewhat opaque,
certain basic principles appear at this point to be well established:
 As a default rule, the Constitution implicitly provides the President with the
authority to remove executive branch officers who assist him in carrying out the
“Executive power.”180
 This necessarily includes the power to freely remove principal officers who
unilaterally (i.e., not as part of a multimember body) exercise substantial amounts
of executive power, such as cabinet officials and the sole heads of most federal
agencies.181
 The Constitution does not give the President absolute authority to remove all
executive branch officials for any reason and at any time. In exercising its
legislative power to create and design federal offices, Congress has constitutional

176 Id. at 2206.
177 Seila Law described the Morrison and Humphrey’s exceptions with reference to an official’s status as either a
principal or inferior officer. See Seila Law, 140 S. Ct. at 2192 (“Our precedents have recognized only two exceptions to
the President’s unrestricted removal power. In Humphrey’s Executor v. United States, we held that Congress could
create expert agencies led by a group of principal officers removable by the President only for good cause. And in . . .
Morrison v. Olson, we held that Congress could provide tenure protections to certain inferior officers with narrowly
defined duties.”) (citations omitted).
178 Seila Law stressed the breadth of the CFPB’s power—including the agency’s substantial rulemaking authority,
“potent enforcement powers,” and “extensive adjudicatory authority”—and distinguished it from other agencies led by
a sole official like the Social Security Administration and the Office of Special Counsel. Seila Law, 140 S. Ct. at 2193-
94, 2201-02. This discussion of the CFPB Director’s authority will likely inform future understanding of what qualifies
as the type of “significant executive power” that may be exercised only by an official removable by the President at
will. Id. at 2192. The discussion also implicitly suggests that whether a lone official possesses “significant executive
power” in the context of removal is a different, higher standard than whether an official possesses “significant
authority” for purposes of the Appointments Clause.
179 Id. at 2200.
180 Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 496-97 (2010).
181 Seila Law, 140 S. Ct. at 2192. (rejecting Congress’s authority to create an “independent agency that wields
significant executive power and is run by a single individual who cannot be removed by the President unless certain
statutory criteria are met”).
Congressional Research Service
21

Congress’s Authority to Limit the Removal of Inspectors General

authority to use statutory removal restrictions to encourage independence under
certain circumstances.182
 The Court has explicitly approved the use of for cause removal restrictions under
two scenarios. First, for a principal officer who is part of a multimember board or
commission that is designed to be “balanced along partisan lines” and which is
not vested with executive power.183 Second, for an inferior officer who
unilaterally wields executive power so long as that officer has “limited duties and
no policymaking or administrative authority.”184
 The precise scope of these exceptions remains unresolved, but wherever the
limits to these exceptions may lie, for cause removal restrictions for an executive
branch officer whose function is neither analogous to the IC or the typical
multimember independent agency would appear to be of questionable validity. As
such, historical precedent clearly plays a role. A removal restriction with no clear
historical analogue is less likely to survive judicial scrutiny than one applied to a
function that Congress has historically determined requires some degree of
independence from political influence in order to be implemented effectively.185
 Even if an officer may otherwise be eligible for removal protections, there are
additional limitations. Congress may not completely deprive the President of his
ability to remove those who execute the law or reserve for itself the power to
remove executive branch officials except through the power of impeachment.186
Nor may Congress restrict the President’s power to remove an officer in a way
that excessively and impermissibly interferes with the President’s ability to
“oversee the faithfulness of the officers who execute” the law.187 This final
limitation includes a prohibition on insulating an executive branch officer from
the President with dual layers of for cause protections.188
Although much ambiguity remains in the Court’s removal jurisprudence, it would appear that
other principles, though not clearly established, may nonetheless be gleaned from the above
caselaw.
 The two approved uses of removal restrictions are not necessarily the only
scenarios in which Congress can use for cause removal restrictions. Instead, the
multimember commission and inferior officer “exceptions” represent the
“outermost constitutional limits of permissible congressional restrictions on the
President’s removal power….”189 As such, other uses of for cause removal

182 See, e.g., Humphrey's Ex’r v. United States, 295 U.S. 602, 627-29 (1935); Morrison v. Olson, 487 U.S. 654, 689-92
(1988); United States v. Perkins, 116 U.S. 483, 485 (1886).
183 Seila Law, 140 S. Ct. at 2199 (citing Humphrey’s, 295 U.S. at 632).
184 Id. at 2200 (citing Morrison, 497 U.S. at 691).
185 Id. at 2201 (“‘Perhaps the most telling indication of [a] severe constitutional problem’ with an executive entity ‘is
[a] lack of historical precedent’ to support it.”) (citing Free Enter. Fund, 561 U. S., at 505).
186 See Bowsher v. Synar, 478 U.S. 714, 732 (1986); Myers, 272 U.S. at 176.
187 See Free Enter. Fund, 561 U.S. at 484.
188 See id. at 514. It is unclear whether having two layers of removal protection between an inferior officer and the
President is unconstitutional in all circumstances. As noted, the PCAOB removal provision was particularly restrictive
and presented “an even more serious threat to executive control than an ‘ordinary’ dual for-cause standard.” 561 U.S. at
502–03.
189 See Seila Law, 140 S. Ct. at 2200 (citing PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F. 3d 75, 196 (D.C. Cir.
2018) (Kavanaugh, J., dissenting)) (emphasis added).
Congressional Research Service
22

Congress’s Authority to Limit the Removal of Inspectors General

provisions (or other less restrictive removal protections such as notification
requirements) that impose less of a burden on the President’s ability to supervise
the exercise of executive power by subordinate officials would appear to remain
permissible.
 It appears that the more “executive” and the more significant the power exercised
by an official the more constitutionally worrisome a direct lack of accountability
to the President becomes.190 But the inverse may also be true: the less significant
and the less executive the authority, the less concern for accountability, and the
less need for the President to control an official through removal. This principle
is reflected in two aspects of the Court’s jurisprudence: First, the Court has
shown reluctance to approve removal restrictions on “purely executive” offices,
those that wield “significant executive power,” or those with “policymaking or
administrative authority.”191 Second, the Court seems to have concluded that
Congress has greater flexibility to impose for cause restrictions on inferior
officers than it does on principal officers, while leaving open the question of
what power of removal the President must be accorded over non-officer
employees.192
Providing For Cause Protections to IGs
Providing officials with removal restrictions can be a useful tool for encouraging independence
from the President and possibly greater responsiveness to Congress. But, as noted, the Court’s
removal cases impose significant, if somewhat undefined, limitations on Congress’s authority to
do so. In the absence of explicit constitutional text and in light of the Court’s historically evolving
jurisprudence, the executive branch has adopted a rather broad view of the President’s implied
removal power. Indeed, the executive branch has previously voiced constitutional concerns with
statutory restrictions that inhibit the President’s power to remove IGs.193 This includes the IG
Act’s notification requirement, as well as past proposals to provide IGs with for cause removal
protections.194 In both instances, the executive branch suggested that the proposed provision

190 See Free Enter. Fund, 561 U.S. at 513- 514 (concluding that without the power to “remove those who assist him in
carrying out his duties…the President could not be held fully accountable for discharging his own responsibilities”).
Both Free Enterprise Fund and Seila Law explicitly articulate concerns with removal protections for those that exercise
“significant executive power.” Id. at 514 (“While we have sustained in certain cases limits on the President's removal
power, the Act before us imposes a new type of restriction—two levels of protection from removal for those who
nonetheless exercise significant executive power.”) See Seila Law, 140 S. Ct. at 2201 (“The question instead is whether
to extend those precedents to the ‘new situation’ before us, namely an independent agency led by a single Director and
vested with significant executive power.”).
191 See Seila Law, 140 S. Ct. at 2199 (citing Humphrey's Ex’r v. United States, 295 U.S. 602, 632 (1935) and Morrison
v. Olson, 487 U.S. 654, 691 (1988)).
192 Free Enter. Fund, 561 U.S. at 506.
193 See, e.g., Letter from Pat Cipollone, Counsel to President Donald J. Trump, to Hon. Charles E. Grassley (May 26,
2020), available at https://assets.documentcloud.org/documents/6929203/2020-05-26-White-House-Counsel-to-CEG-
IC-IG-and.pdf; Memorandum Opinion for the Attorney General: Inspector General Legislation, 1 Op. O.L.C. 16, 18
(1977) (concluding that a “requirement that the President notify both Houses of Congress of the reasons for his removal
of an Inspector General constitutes an improper restriction on the President’s exclusive power to remove Presidentially
appointed executive officers.”).
194 Statement of Administration Policy: H.R. 928 (Statement of Administration Policy: H.R. 928 (objecting to
legislation providing IGs with for cause removal protections as an “intrusion on the President's removal authority and
his ability to hold IGs accountable for their performance”); Statement by President George Bush Upon Signing H.R.
2748, 1989 U.S.C.C.A.N. 1222, 1224 ( Nov. 30, 1989) (concluding that the IG Act imposes a “burden” on the
Congressional Research Service
23

link to page 39 Congress’s Authority to Limit the Removal of Inspectors General

impermissibly burdened the President’s prerogative to remove subordinate executive branch
officials.195
This position was reiterated in a 2020 letter from the Trump Administration to Congress
following a bipartisan request for further explanation of the earlier IG removals. The letter noted
that because “[t]he Constitution vests the executive power in the President and charges him with
the supervision of all executive officers, including inspectors general...Executive Branch officials
of both parties have long believed that the [IG Act’s] notification requirement raises serious
constitutional concerns.”196 As with past administrations, the Trump Administration expressed
concern with the “burden” the existing 30-day notification provision in the IG Act places on the
President’s removal power, and as such, concluded that the President complied with the provision
not out of a sense of legal requirement, but “as a matter of accommodation and presidential
prerogative.”197
As the previously discussed caselaw makes clear, not all burdens on the President’s removal
power are unconstitutional. Nevertheless, in light of the Executive’s objections to the notification
requirement, it seems that the executive branch could object to any new amendment to the IG Act
that would impose more significant restrictions on IG removal, including one that would
explicitly prevent the President or DFE leadership from removing an IG except for cause.
Notwithstanding possible objections, neither the Supreme Court’s existing removal holdings nor
the general principles discussed above appear to clearly bar Congress from enacting removal
restrictions to encourage IG independence, at least in most cases. There are, however, important
caveats to be made. First, IGs do not fit neatly into the molds previously used by the Court in
addressing appointment and removal questions. IGs not only serve a somewhat unique function in
our governmental structure, but the powers, duties, and degree of supervision applicable to IGs
can vary. Second, Free Enterprise Fund may cast doubt on the use of for cause protections for a
limited number of DFE IGs whose designated agency leadership is also protected by a for cause
provision.198 Third, the fact that IGs do not serve a fixed term and that the IG Act indirectly
delegates law enforcement authorities to IGs add a layer of complexity to the constitutional
question.
As the Supreme Court has stated, “the nature of the function” performed, or the “character of the
office” are generally important factors in assessing the burden removal restrictions impose on
presidential power.199 Before specifically applying the Court’s removal jurisprudence to IGs, it
may be useful to first address the unique nature of the IG function—a function that combines
aspects of both executive and legislative power.

President’s removal power); Memorandum Opinion for the Attorney General: Inspector General Legislation, 1 Op.
O.L.C. 16, 18 (1977).
195 Id.
196 Letter from Pat Cipollone, Counsel to President Donald J. Trump, to Hon. Charles E. Grassley (May 26, 2020).
197 Id. The White House noted the existence of a “burden” despite asserting that the legislative history behind the IG
Act suggests that the law “specifically allow[s] the President to remove any Inspector General at any time.” Id.
198 See infra “Free Enterprise Fund and Dual Layers of For Cause Protections.”
199 Seila Law, 140 S. Ct. at 2198 (“Congress’s ability to impose such removal restrictions ‘will depend upon the
character of the office.’”) (citing Humphrey's Ex’r v. United States, 295 U.S. 602, 629 (1931); Wiener, 357 U.S. at 353.
Congressional Research Service
24

Congress’s Authority to Limit the Removal of Inspectors General

Assessing the IG Function
As noted above, the Supreme Court’s removal jurisprudence seems to suggest that the more
centrally executive the powers and functions of an office, the more control the President likely
needs to exercise and the less likely that for cause restrictions can be used to insulate the official
from presidential supervision and oversight. In Humphrey’s, this principle was evident in the
Courts now-discarded conclusion that the FTC exercised “no part of the executive power.”200 In
Morrison, the same principle took a new form, with the court asking whether “the President's
need to control the exercise” of certain powers and functions “is so central to the functioning of
the Executive Branch as to require as a matter of constitutional law that the counsel be terminable
at will by the President.”201 And in Seila Law the principle was apparent in the Court’s conclusion
that principal officers who “wield significant executive power” and inferior officers who wield
“policymaking or administrative authority” must do so “dependent on the President.”202
The argument that the IG function is far removed from typical executive power finds support in
the Supreme Court’s opinion in Buckley v. Valeo. In Buckley, the Court invalidated an
appointment scheme that allowed congressional leadership to appoint commissioners of the
Federal Election Commission (Commission).203 In doing so, however, the Court reasoned in what
may be dicta that “investigative” powers relating to the “flow of necessary information” such as
“receipt, dissemination, and investigation,” are not executive in nature.204 This included
Commission powers that arguably parallel those discharged by IGs, including the Commission’s
authority to conduct “audits and field investigations”; “report apparent violations of law to the
appropriate law enforcement authorities”; and contract for the completion of “independent studies
of the administration of elections” to be “published by the Commission and . . .made available to
the general public.”205 The Court viewed these powers as legislative, reasoning that a delegation
of powers akin to those that “Congress might delegate to one of its own committees” is made
“merely in aid of congressional authority to legislate” when “sufficiently removed from the
administration and enforcement of public law.”206
As such, it appears that Buckley would suggest that many IG powers could be viewed as
connected to the legislative rather than the executive function. Congress and its committees
clearly have the authority to investigate and report. That “power of inquiry” is an essential
auxiliary to the legislative powers vested in Congress under Article I.207 Moreover, at least one of
the main purposes of the IG Act is to keep Congress informed and assist Congress in its oversight
function.208 As one dissenting opinion of the Supreme Court has put it, IGs serve “more than just

200 Humphrey’s 295 U.S. at 628. In Seila Law, the Court stated that “[t]he Court’s conclusion that the FTC did not
exercise executive power has not withstood the test of time.” 140 S. Ct. 2198 n.2.
201 Morrison v. Olson, 487 U.S. 654, 691-92 (1988).
202 Seila Law, 140 S. Ct. at 2207, 2211.
203 Buckley v. Valeo, 424 U.S. 1, 140 (1976) (per curiam).
204 Buckley, 424 U.S. at 137.
205 2 U.S.C. § 438 (1970).
206 Buckley, 424 U.S. at 139.
207 McGrain v. Daugherty, 273 U.S. 135, 174 (1927) (“[T]he power of inquiry—with process to enforce it—is an
essential and appropriate auxiliary to the legislative function.”).
208 5 U.S.C. App § 4(a)(5). The DOJ has acknowledged, but challenged the IGs’ role in assisting Congress in oversight
of the executive branch. See Inspector General Legislation, 1 Op. O.L.C. 16, 17 (1977) (“As a threshold matter, the
Justice Department has repeatedly taken the position that continuous oversight of the functioning of executive agencies,
such as that contemplated by the requirement that the Inspector General keep Congress fully and currently informed, is
not a proper legislative function. In our opinion, such continuing supervision amounts to an assumption of the
Congressional Research Service
25

Congress’s Authority to Limit the Removal of Inspectors General

agency concerns,” but also perform “the separate function of keeping Congress aware of agency
developments, a function that is of substantial assistance to the congressional oversight
function.”209
The argument that much of the authority exercised by IGs is not executive in nature finds further
support in Bowsher v. Synar.210 There, the Court held that Congress could not vest an official
subject to removal by Congress—in that case, the Comptroller General—with “executive
powers.”211 In determining whether Congress had acted impermissibly, the Court was persuaded
by the fact that under the challenged law the Comptroller General had “the ultimate authority to
determine” budget cuts that must be made by the President.212 Indeed, the law authorized the
Comptroller General to direct presidential action.213 This authority to interpret “a law enacted by
Congress to implement the legislative mandate is the very essence of ‘execution’ of the law,” and
thus constituted executive power.214
Unlike the Comptroller General in Bowsher, IGs have not been entrusted with authority to
execute or implement the law. They do not have “ultimate authority” over agency activities or
decisions. Indeed, they generally do not command agency action in any way.215 The limited
nature of the IG function is supported by the fact that IGs generally serve an advisory role. For
example, the executive branch has previously recognized that IGs “merely report[] and
recommend[] action” to the agency and that “[i]t is for the agency head, not the IG, to direct and
supervise an agency’s officials.”216 And while some advisory functions, such as those exercised
by close presidential aids, may nonetheless implicate core executive functions and powers, that
does not appear to be the case for most IGs.217
This is not to say that IGs discharge their duties only to aid Congress in its legislative function. As
previously noted, IGs are relatively unique in that they are located within the executive branch,
but serve the interests of, and are responsible to, both the legislative and executive branches. An
IG’s obligations to his or her agency are substantial. They are generally required to “provide
leadership and coordination and recommend policies” to their agency while also keeping the
agency head “fully and currently informed about problems and deficiencies” in agency

Executive's role of administering or executing the laws. However, at the same time it must be acknowledged that
Congress has enacted numerous statutes with similar requirements, many of which are currently in force.”).
209 NASA v. Fed. Labor Rels. Auth., 527 U.S. 229, 260 (1999) (Thomas J. dissenting).
210 Bowsher v. Synar, 478 U.S. 714 (1986).
211 Id. at 732.
212 Id. at 733.
213 Id. (“Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation
. . . the directive of the Comptroller General as to the budget reductions. . . .”).
214 Id. at 732-733.
215 See NASA, 527 U.S. at 253 (Thomas, J., dissenting) (“OIG has no authority over persons employed within the
agency outside of its Office and similarly has no authority to direct agency personnel outside of the Office. Inspectors
General, moreover, have no authority under the Inspector General Act to punish agency employees, to take corrective
action with respect to agency programs, or to implement any reforms in agency programs that they might recommend
on their own.”).
216 Application of the Appointments Clause to a Statutory Provision concerning the Inspector General Position at the
Chemical Safety and Hazard Investigation Board, 30 Op. O.L.C. 92, 102 (2006).
217 Moreover, executive privilege has a role to play in IG investigations. While IGs are required to keep Congress
informed, the legislative history of the IG Act suggests that Congress’s intent was to “preserve for the President the
opportunity to assert privilege where he deems it necessary.” S. REP. NO. 95-1071, at 32 (1978). Congress intended that
privilege disputes “should be left for resolution on a case-by-case basis as they arise in the course of implementing this
legislation” through, for example, “alterations or deletions” made by the agency head but indicated to Congress. Id.
Congressional Research Service
26

Congress’s Authority to Limit the Removal of Inspectors General

programs.218 IGs also are required to provide various reports to their agency head.219 Moreover,
the Supreme Court has suggested that for purposes of federal labor law, the IGs “act on behalf of,
and operate for the benefit of” the agency of which they are a part.220 The Supreme Court has at
times viewed an IG as a “representative” of the agency working in “concert” with its agency
head.221
IGs also exercise limited “law enforcement” powers that are of a type that is generally considered
executive in nature. These powers may require a more significant degree of presidential
supervision, though how much more is not clear.222 Most strikingly, the IG Act provides IGs with
limited and conditional law enforcement authorities to be exercised pursuant to guidelines
established by the Attorney General. Under § 6(f) of the IG Act, the Attorney General “may”
(upon a finding that certain criteria are met) authorize an IG and certain employees of an IG
office to
 “carry a firearm”;
 “make an arrest without a warrant while engaged in official duties . . . for any
offense against the United States committed in the presence of” the authorized IG
official or for “any felony” so long as the official has “reasonable grounds to
believe” the felony was committed; and
 “seek and execute warrants for arrest, search of a premises, or seizure of
evidence issued under the authority of the United States upon probable cause to
believe that a violation has been committed.”223
Once delegated, these law enforcement authorities may be “rescinded or suspended” if the
Attorney General determines that the criteria underlying the delegation are no longer met, or if
the IG office or official violates the Attorney General’s guidelines.224 Exercise of these powers,
and the IGs’ larger role in executive branch criminal investigations and prosecutions, appear to be
substantial. According to the Council of the Inspectors General on Integrity and Efficiency
(CIGIE), IG investigations led to 4,749 indictments or informations and over 4,000 successful
criminal prosecutions in FY2017.225 Still, IGs have no power to prosecute and can only refer

218 5 U.S.C. App. §§ 2, 4.
219 Id. § 5.
220 NASA, 527 U.S. at 240-41.
221 Id. at 242 n.7.
222 The IG Act provides IGs with authority to issue subpoenas and if not complied with, those subpoenas “shall be
enforceable by order of any appropriate United States district court.” 5 U.S.C. App. § 6(a)(4). Pursuant to this
provision, IGs may initiate civil lawsuits in federal court to obtain a court order directing compliance with a subpoena.
Though arguably constituting enforcement power, the power to issue subpoenas to private parties and enforce those
demands in federal court is one that is also possessed by Congress. See, e.g., Sen. Permanent Subcomm. on
Investigations v. Ferrer, 199 F. Supp. 3d 125, 133 (D.D.C. 2016).
223 5 U.S.C. App. § 6(f)(1). The Attorney General’s “initial determination” includes a finding that “(A) the affected
Office of Inspector General is significantly hampered in the performance of responsibilities established by this Act as a
result of the lack of such powers; (B) available assistance from other law enforcement agencies is insufficient to meet
the need for such powers; and (C) adequate internal safeguards and management procedures exist to ensure proper
exercise of such powers.” Id. § 6(f)(2). Some agency IGs are exempt from this initial determination. Id. § 6(f)(3).
224 Id. § (6)(f)(5). See Attorney General Guidelines for Offices of Inspector General with Statutory Law Enforcement
Authority (Dec. 8, 2003) available at https://www.ignet.gov/sites/default/files/files/agleguidelines.pdf. While it may be
that the constitutional concerns are somewhat mitigated by the degree of control the President wields, through the
Attorney General, over the exercise of those law enforcement powers, the Supreme Court has suggested that other
means of supervision are no “substitute” for at will removal. Seila Law, 140 S. Ct. at 2207.
225 Council of the Inspectors General on Integrity and Efficiency, Annual Report to the President and Congress, fiscal
Congressional Research Service
27

Congress’s Authority to Limit the Removal of Inspectors General

violations of federal criminal law to the DOJ, which must ultimately decide whether to pursue
criminal charges.
Congress provided general law enforcement authorities to establishment IGs (those appointed by
the President with advice and consent of the Senate) through an amendment to the IG Act in 2002
and extended them to DFE IGs in 2008.226 Prior to the IG Act amendments, criminal investigators
in IG offices had exercised similar limited law enforcement powers either pursuant to
designations as Special Deputy U.S. Marshals, or in limited circumstances, pursuant to statutory
authorizations outside of the IG Act.227 Originally made on a case-by-case basis, deputations later
evolved into blanket deputations to entire IG offices.228 Seeing a lack of oversight over the use of
these powers, the administrative burdens on the Marshalls Service, and administrative delays in
the renewal of designations, Congress found it necessary to regularize and codify the process.229
There are, therefore, some aspects of typical IG powers that can be viewed as aiding legislative
functions, and some that appear more quintessentially executive. For purposes of removal,
however, the question is not simply whether the IG function is legislative or executive—though
that determination could have a substantial impact on how a court views the need for presidential
supervision and control. The question is instead whether IGs hold an office that can be protected
from removal except for cause.
Application of the Supreme Court’s Existing Removal Holdings
to IGs
The permissibility of for cause removal protections for IGs would appear to be governed by the
standards set forth by the Supreme Court in Morrison and Seila Law, rather than Humphrey’s.230
The power IGs possess is wielded unilaterally (like the IC in Morrison and CFPB Director in
Seila Law), not as part of a multimember board with fixed and staggered terms and partisan
balance (like the FTC in Humphrey’s).231 Taken together, Morrison and Seila Law suggest that
Congress cannot provide for cause protections to a sole principal officer “vested with significant
executive power,” but can provide such protections to a sole inferior officer “with limited duties
and no policymaking or administrative authority.”232 The permissibility of removal protections for
IGs would therefore appear to turn on how IGs are classified under the Appointments Clause

Year 2017, at 19.
226 See generally CRS Report R43722, Offices of Inspectors General and Law Enforcement Authority: In Brief, by
Kathryn A. Francis.
227 See U.S. GOV’T ACCOUNTABILITY OFF., GAO-02-437, INSPECTORS GENERAL: COMPARISON OF WAYS LAW
ENFORCEMENT AUTHORITY IS GRANTED 4-5 (2002); Vicky L. Powell, Why Isn’t Law Enforcement authority in the
Inspector General Act? J. OF PUB. INQUIRY (Spring/summer 1998).
228 S. REP. NO. 107-176, at 2 (2002) (“Criminal investigators for the Offices of Inspectors General…have been
exercising law enforcement authorities for many years.”). At that time, IGs were not viewed as either “an investigative
or law enforcement officer.” Art Metal-U.S.A., Inc. v. United States, 577 F. Supp. 182, 185-86 (D.D.C. 1983)
229 S. REP. NO. 107-176, at 2-3 (2002).
230 At least under the Myers and Humphrey’s framework, it appears that because IGs discharge a blend of executive and
legislative functions, they likely do not serve the type of “purely executive” function that “must be performed by
officers subject to removal at will by the President.” Bowsher v. Synar, 478 U.S. 714, 762 (1986) (White, J.,
dissenting).
231 Though IGs are “objective,” and the appointment of an IG is to be made “without regard to political affiliation” and
based on “demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public
administration, or investigations.” 5 U.S.C. App. §§ 2-3.
232 Seila Law, 140 S. Ct. at 2200, 2201.
Congressional Research Service
28

Congress’s Authority to Limit the Removal of Inspectors General

(principal officer, inferior officer, or employee) and the type of power they wield. It is to those
questions that this report now turns.
Are IGs Officers of the United States?
As previously discussed, the Supreme Court has distinguished between “Officers of the United
States,” who exercise “significant authority” and “employees,” who do not.233 The unique
functions and discretion provided to IGs under the IG Act do not appear to fit neatly into the
typical Appointments Clause classifications, and as a result, whether IGs in fact exercise
“significant authority” is an open question that no court has addressed.234
With no clear definition, “significant authority” is best understood with reference to the general
categories of powers and functions the Court has previously viewed as either significant or not.
For example, Supreme Court jurisprudence on the Appointments Clause suggests that powers
directly relevant to the execution of law, such as the “administration and enforcement of public
law,” are likely significant and generally may be exercised only by “Officers of the United
States.”235 The authority to issue legally binding, final decisions is also likely to be deemed
“significant,” but the Court recently made clear in Lucia v. Securities and Exchange Commission
(SEC) that while final decisionmaking authority may be sufficient to establish officer status, it is
not necessary.236 Instead, an official who lacks final decisionmaking authority, like the SEC
Administrative Law Judges (ALJs) at issue in Lucia, may still be deemed an Officer if they
exercise “significant discretion” in carrying out “important functions.”237
At the other end of the spectrum, investigative and informational powers do not appear to be
“significant.” In Buckley, the Court reasoned that unlike the regulatory and enforcement powers
given to the Commission, powers “relating to the flow of necessary information,” such as
“receipt, dissemination, and investigation,” do not qualify as “significant authority.”238 The Court
has also suggested elsewhere that “purely recommendatory” powers, for example powers
commonly exercised by advisory commissions, likewise do not amount to significant authority.239
The argument that IGs are employees would likely focus on the investigatory and advisory nature
of IG powers. IGs have not been delegated the regulatory or direct enforcement powers that
generally have been viewed to constitute “significant authority.”240 IGs do not administer or
implement statutes, they do not issue rules, and they generally cannot enforce federal

233 Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018) (quoting United States v. Germaine, 99 U.S. 508, 511 (1879) and
Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam)).
234 This uncertainty is arguably reflected in the fact that the IG Act currently provides different appointment structures
for different IGs—one consistent with principal officer status and one generally consistent with inferior officer status.
In Jefferson v. Harris, the U.S. District Court for the District of Columbia determined that Members of the Council of
the Inspector General on Integrity and Efficiency’s Integrity Committee, which includes IGs, are not officers. In
reaching that determination, the district court noted that the IG members of the Integrity Committee “carry out
functions that at least mirror . . . those that they carry out as Inspectors General of their own ‘Federal entities.’”
Jefferson v. Harris, 285 F. Supp. 3d 173, 190 (D.D.C. 2018).
235 Buckley, 424 U.S. at 135-140. Id. at 124 (noting that the Appointments Clause is one provision through which the
separation of powers was “woven into the” Constitution).
236 Lucia, 138 S. Ct. at 2052.
237 Id. at 2053.
238 Buckley, 424 U.S. at 137.
239 Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 507 n.10 (2010).
240 See Buckley, 424 U.S. at 137-42 (holding that the Federal Election Commission’s administrative, rulemaking, and
enforcement powers could “be discharged only by persons who are ‘Officers of the United States’”).
Congressional Research Service
29

Congress’s Authority to Limit the Removal of Inspectors General

requirements against either federal officials or members of the public. Outside of their limited
arrest and search powers, the IG role is predominantly “informational,” which Buckley suggests is
not significant for purposes of the Appointments Clause.241
The fact that IGs generally serve an advisory role also supports, but does not guarantee, a
conclusion that they could be viewed as employees for purposes of the Appointments Clause. In
Free Enterprise Fund, the Court suggested that those who exercise “purely recommendatory”
powers do not exercise significant authority and are not officers.242 As noted, IGs do not direct or
prohibit agency activity, but instead “recommend” policy.243 Still, as discussed below, Lucia
established that an official’s inability to make final and binding decisions does not mean they are
necessarily an employee, but it does acknowledge that it is a factor that would support that
conclusion.244
The argument that an IG is instead an “Officer of the United States” under the Appointments
Clause would likely focus on the IG’s current appointment method; the IG’s limited law
enforcement powers; and an application of standards articulated in Lucia.
IGs are currently appointed in a manner that suggests officer status. Establishment IGs are
appointed by the President, with advice and consent of the Senate—a method of appointment
consistent with principal officer status.245 DFE IGs are directly appointed by an agency head—a
method of appointment generally consistent with inferior officer status.246 These choices may
suggest that Congress views IGs as officers, but as the Supreme Court has noted, Congress may at
times “wish to require Senate confirmation for policy reasons.”247 Moreover, the mere fact that
Congress choses an appointment method that satisfies the Appointments Clause does not
necessarily make that official an “Officer of the United States.”248
With respect to IG law enforcement powers, Buckley holds that the “administration and
enforcement of public law” is significant authority that may be discharged only by Officers.249
And it appears that if a position possesses one power that is deemed “significant,” then that
official is an officer.250 But does the power to arrest and execute warrants alone constitute the
“enforcement of law”? The DOJ has concluded that “we have no doubt that the authority to seek
and execute search warrants, or to make arrests in the name of the United States is ‘significant
authority’ under Buckley.”251 Whether this is in fact the case, and whether the type of enforcement

241 See supra notes 207-09.
242 Free Enter. Fund, 561 U.S. at 507 n.10.
243 5 U.S.C. App. § 4.
244 Lucia v. SEC, 138 S. Ct. 2044, 2054 (2018).
245 5 U.S.C. App § 3(a).
246 Id. § 8G(c). There may be some question as to whether each DFE appointing authority qualifies as the head of a
“department” for purposes of the Appointments Clause. Free Enter. Fund, 561 U.S. at 511 (defining a department as “a
freestanding component of the Executive Branch, not subordinate to or contained within any other such component”).
247 See Fin. Oversight and Management Bd. for Puerto Rico v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1658 (2020).
248 Id. (“We do not mean to suggest that every time Congress chooses to require advice and consent procedures it does
so because they are constitutionally required.”).
249 Buckley v. Valeo, 424 U.S. 1, 135-40 (1976) (per curiam).
250 Freytag v. Comm’r, 501 U.S. 868, 882 (1991) (concluding that “Special trial judges are not inferior officers for
purposes of some of their duties … but mere employees with respect to other responsibilities. The fact that an inferior
officer on occasion performs duties that may be performed by an employee not subject to the Appointments Clause
does not transform his status under the Constitution”).
251 See Constitutional Limitations on “Contracting Out” Department of Justice Functions under OMB Circular A-76,
14 Op. O.L.C. 94, 100 (1990).
Congressional Research Service
30

Congress’s Authority to Limit the Removal of Inspectors General

authorities exercised by IGs is significant, is unclear. For example, the authority to make arrests
for violations of federal law in limited situations is a power that can be exercised by various
persons, including legislative branch officials, state officials, and private citizens.252
The argument that IGs are officers may also rely on the standard recently employed by the
Supreme Court in Lucia. There, the Court held that SEC ALJs were officers, despite the fact that
they did not have “final decisionmaking authority.”253 Lucia, and some of the earlier cases it
relied upon, including Freytag v. Commissioner, involved executive branch adjudicative
officials.254 In Lucia, the Court determined that SEC ALJs held a continuing position established
by law,255 and exercised significant authority because they had “significant discretion” in deciding
how to carry out “important functions.”256 The “important functions” identified by the Lucia
Court included the ALJs’ authority to “take testimony, conduct trials, rule on the admissibility of
evidence, and . . .enforce compliance with discovery orders,” including by punishing
“[c]ontemptuous conduct.”257 The cases provided little insight into the meaning of “significant
discretion,” though the ALJs generally exercised their powers at their own judgment, at least
within the confines of their adjudication.258
In addition to the IGs investigative powers (including the power to issue subpoenas) and law
enforcement functions, other functions that could be considered constitutionally relevant include
the authority to submit annual budget estimates to the agency that must be included as part of the
President’s formal budget request,259 and the power to “select, appoint, and employ” staff
“necessary for carrying out the functions” of the IG office.260 But it is difficult to apply the
principles of Lucia to IGs, as the “important” adjudicative functions of SEC ALJs at issue in that
case are not easily analogized to the functions carried out by IGs. Indeed, it could be argued that
the reasoning in Lucia and Freytag (which involved special trial judges appointed by the Chief
Judge of the Tax Court) may not extend to nonadjudicative officials—at least as regards
determining whether a certain function is sufficiently “important” for those persons to be
considered “Officers of the United States” under the Appointments Clause. That said, like the
SEC ALJs at issue in Lucia, it would appear that IGs operate with considerable discretion, at least
within the realm of investigations and audits. As noted, IGs are free to make investigations and

252 Members of the U.S. Capitol Police are authorized to make arrests and “enforce the laws of the United States,
including the laws of the District of Columbia” under certain circumstances and generally within geographic proximity
of the U.S. Capitol or Members of Congress (but not merely on Capitol grounds). 2 U.S.C. § 1967. Federal law also
permits the Attorney General to authorize state law enforcement officers to make arrest for violation of federal law, and
the courts have recognized private citizens’ common law arrest power. See Dina Mishra, An Executive-Power Non-
Delegation Doctrine for the Private Administration of Federal Law, 68 VAND. L. REV. 1509, 1537 (2015).
253 Lucia v. SEC, 138 S. Ct. 2044, 2047-48, 2052 n.4 (2018).
254 Freytag v. Comm’r, 501 U.S. 868 (1991).
255 The Court reasoned that the positions at issue were “created by statute” with the “duties, salary, and means of
appointment for that office [] specified by statute.” Lucia, 138 S. Ct. at 2047, 2053.
256 Lucia, 138 S. Ct. at 2053.
257 Id. at 2047.
258 Id. at 2152-53.
259 5 U.S.C. App. § 6(g). In addition to the IG’s budget estimate, the President may also submit his own request for IG
funding levels. IGs also often receive a separate appropriations account, making reprogramming of funds away from
the IG office more difficult. See Wilhelm, supra note 1, at 13-14. In Seila Law, the Court stated that the CFPB’s ability
to receive funding from the Federal Reserve, rather than from Congress “aggravates the agency’s threat to Presidential
control.” Seila Law, 140 S. Ct. at 2204. IGs, on the other hand, operate within the traditional congressional
appropriations process.
260 5 U.S.C. App. § 6(a)(7).
Congressional Research Service
31

link to page 16 Congress’s Authority to Limit the Removal of Inspectors General

reports that are “in the judgment of the Inspector General, necessary or desirable,” without
interference from the agency head.261 Indeed, as the Supreme Court has identified, “the ability to
proceed without consent from agency higher-ups is vital to effectuating Congress’ intent and
maintaining an opportunity for objective inquiries into bureaucratic waste, fraud, abuse, and
mismanagement.”262 But, as previously discussed, the IGs’ other functions are not carried out
with that same discretion.263
As such, it appears that IGs are neither clearly officers under the Appointment Clause nor clearly
employees who are outside the Clause’s purview. If IGs are employees, limitations on Congress’s
authority to provide an office with for cause removal protections in Seila Law and Free
Enterprise Fund—which appear to address only Officers of the United States—would not appear
to be directly applicable. This would leave Congress with significant flexibility in protecting IGs
from removal. But IG authority to make arrests and execute warrants, in combination with the
fact that IGs enjoy considerable discretion in carrying out what may be viewed as “important
functions,” could preclude a determination that IGs are mere employees.
But even assuming that IGs do cross the “significant authority” threshold and are determined to
be “Officers of the United States,” Seila Law would appear to cast doubt on Congress’s authority
to protect them from removal if they are either (1) principal officers wielding “significant
executive power,” or (2) inferior officers who exercise policymaking or administrative power.264
As described below, IGs appear to be neither.
Principal or Inferior Officer?
As previously noted, the Court has established no explicit test for distinguishing between inferior
and principal officers.265 In Morrison, for example, the Court applied a functional multifactor test
to determine that the IC was an inferior officer.266 That approach included reference to the fact
that the IC was removable by a “higher executive branch official” other than the President and
had only limited duties, tenure, and jurisdiction.267 Under that test, IGs would appear to have
limited duties and jurisdiction, but generally unlike the IC in Morrison, do not have limited
tenure. Moreover, whereas like the IC in Morrison, DFE IGs are removable by an executive
branch officer other than the President, establishment IGs in contrast are removable by the
President alone.268
But as the Supreme Court later observed, “Morrison did not purport to set forth a definitive test
for whether an office is ‘inferior’ under the Appointments Clause.”269 More recently the Court has
generally suggested that the distinguishing factor between the two types of officers is that
principal officers are supervised only by the President, while the work of inferior officers is

261 5 U.S.C. App. § 6(a)(2).
262 NASA v. Fed. Labor Rels. Auth., 527 U.S. 229, 240 (1999).
263 The Court addressed a mixture of functions in Freytag, noting that “The fact that an inferior officer on occasion
performs duties that may be performed by an employee not subject to the Appointments Clause does not transform his
status under the Constitution.” 501 U.S. at 882.
264 Seila Law, 140 S. Ct. at 2192.
265 See supra “The Relationship Between Appointment and Removal.”
266 Morrison v. Olson, 487 U.S. 654, 671-72 (1988).
267 Id.
268 5 U.S.C. App. §§ 3, 8G.
269 Edmond v. United States, 520 U.S. 651, 661 (1997).
Congressional Research Service
32

link to page 7 Congress’s Authority to Limit the Removal of Inspectors General

“directed and supervised at some level” by another principal officer.270 Thus, if IGs are officers,
the primary factor in determining whether they are inferior or principal appears to be whether IGs
are supervised by another officer.271
As addressed above, the IG Act established IG offices as “independent units” and provides them
with a number of structural and operational features to ensure ongoing independence.272 However,
the law also explicitly states that IGs shall “report to and be under the general supervision of the
head of the establishment.”273 As a statutory matter then, even establishment IGs are supervised
by an executive branch officer directly accountable to the President. That general supervision is
restricted by the fact that most agency heads may not “prevent or prohibit the Inspector General
from initiating, carrying out, or completing any audit or investigation, or from issuing any
subpoena during the course of any audit or investigation.”274 It could be that an IG’s unsupervised
investigative powers are enough to turn them into principal officers,275 but the IG Act’s specific
prohibition on agency supervision has not prevented the Supreme Court from describing the
agency head in one case as constituting an establishment IG’s “supervising authority.”276
Moreover, it is only an IG’s audit and investigatory powers that are generally subject to
diminished supervision.277 Other IG activities remain subject to more traditional controls by the
agency head, the Attorney General, and to a limited degree by the CIGIE Integrity Committee
(Committee).278 For example, IG misconduct is supervised by the Committee and the agency
head,279 while an IG’s exercise of law enforcement powers remains subject to supervision by the
Attorney General. The IG Act does not delegate law enforcement powers directly to IGs. Instead,
it is a conditional grant of authority that is in some cases dependent on initial approval from the
Attorney General, but in all cases subject to his continuous supervision.280 Ultimately, IG law

270 Id. at 662 (“Generally speaking, the term ‘inferior officer’ connotes a relationship with some higher ranking officer
or officers below the President: Whether one is an ‘inferior’ officer depends on whether he has a superior.”); Seila Law,
140 S.Ct. at 2199 n. 3.
271 In Edmond, the Court found that the military judge at issue was an inferior officer despite the fact that the office had
neither a limited tenure nor limited jurisdiction. Edmond, 520 U.S. at 661.
272 See supra “IG Features of Independence.”
273 5 U.S.C. App. § 3(a) (emphasis added).
274 Some agency heads do have authority to prevent (or limit) IGs from engaging in certain investigations. See, e.g., 5
U.S.C. App. § 8E(a) (DOJ); id. § 8(b) (DOD); 50 U.S.C. § 3517(b)(3)-(4) (CIA).
275 In Association of American Railroads v. Department of Transportation, the D.C. Circuit held that a single
unsupervised power was enough to make an appointed arbitrator a principal officer. 821 F.3d 19, 38-9 (D.C. Cir. 2016).
But unlike the IG Act, the statute at issue did not “suggest the arbitrator ‘is directed and supervised at some level by
others who were appointed by Presidential nomination with the advice and consent of the Senate’” and empowered the
arbitrator to determine “final agency action.” Id. at 39.
276 See NASA v. Fed. Labor Rels. Auth., 527 U.S. 229, 240 (1999) ([E]ach Inspector General has no supervising
authority—except the head of the agency of which the OIG is a part.”).
277 5 U.S.C. App. §§ 3(a), 8G(d).
278 See NASA, 527 U.S. at 259 (“The truth of the matter is that upon receipt of information from OIG, agency
management has the discretion to impose discipline but it need not do so. And OIG has no determinative role in agency
management's decision.”) In Edmond, the Supreme Court recognized that necessary supervision can come from the
cumulative oversight of multiple principal officers. 520 U.S. at 666.
279 Under the IG Act, the Committee “receive[s], review[s], and refer[s] for investigation allegations of wrongdoing
that are made against Inspectors General and staff members.” The Committee, however, is only empowered to refer
matters, with recommendations, to the agency head and the President for “disposition.” 5 U.S.C. App. § 11(d). The
agency heads retain the authority to take disciplinary action against IGs for misconduct.
280 5 U.S.C. App. § (6)(f).
Congressional Research Service
33

Congress’s Authority to Limit the Removal of Inspectors General

enforcement authority can be “rescinded or suspended” at any time if the Attorney General
determines that an IG office has failed to comply with the Attorney General’s guidelines.281
These features of supervision must be weighed against the IGs’ many “independence-promoting
features” discussed previously. Still, to conclude that IGs are not “supervised” by their agency
head would be in tension with explicit statutory text of the IG Act and language from the
Supreme Court to the contrary.282 Ultimately, the degree to which each individual IG is supervised
varies, but at least for Appointments Clause and removal purposes, it appears that assuming IGs
are officers, most are likely to be viewed as inferior officers.283
Policymaking and Administrative Authority?
If most IGs are inferior officers, then Seila Law suggests that Congress can give them for cause
removal protections so long as they possess “limited duties and no policymaking or
administrative authority.”284 An IG’s duties are likely “limited,” as much of their authority is
advisory and informational and requires a nexus to their agency’s “programs and operations.”285
While it is not entirely clear what precisely constitutes “policymaking or administrative
authority,” it would appear that Morrison and its discussion of the IC is the crucial guide.
In Morrison, the Court upheld for cause protections for a lone official whose powers exceeded
those possessed by IGs—both in their significance and in their proximity to executive
functions.286 Whereas IGs are generally limited to investigating and auditing agency operations
and programs, the IC was authorized to both investigate and prosecute criminal acts of a broad
swath of high-level government officials.287 Indeed, the IC possessed the full array of federal
criminal law enforcement powers, including “full power and independent authority to exercise all
investigative and prosecutorial functions and powers of the Department of Justice, the Attorney
General, and any other officer or employee of the Department of Justice.”288 Although Congress
had vested the IC with significant law enforcement powers, the Court noted that Congress had not

281 Id.
282 Moreover, a conclusion that IGs are principal officers could bring the appointment of DFE IGs into question, since
DFE IGs are not appointed by the President with the advice and consent of the Senate. 5 U.S.C. App. § 8G(c).
283 Even if a given IG was viewed as a principal officer, they arguably still may not be the type of principal officer that
must be removable at will by the President. Whether supervised or not, IGs do not approach the type of “significant
executive power” that was vested in the Director of the CFPB. For example, in Seila Law, the Court distinguished the
CFPB from other offices, including the Office of Special Counsel (OSC), a free-standing office headed by a sole
official with for cause removal protections that “exercises only limited jurisdiction to enforce certain rules governing
Federal Government employers and employees.” See Seila Law, 140 S. Ct. at 2201-02; 5 U.S.C. §§ 1211-1219. The
Court appears to have viewed the head of the OSC as a “principal officer,” but not one that can “bind private parties at
all or wield regulatory authority comparable to the CFPB.” See Seila Law, 140 S. Ct. at 2202. Although there are many
similarities between the OSC and an IG, unlike IGs, the OSC has authority to issue and enforce certain federal
employment rules. 5 U.S.C. § 1212. Seila Law also distinguished the CFPB Director from the Social Security
Commissioner. Seila Law, 140 S. Ct. at 2201.
284 Seila Law, 140 S. Ct. at 2200. However, the jurisdiction of some IGs extends to multiple agencies. See Wilhelm,
supra note 1, at 6.
285 5 U.S.C. App. §§ 2-4.
286 Morrison v. Olson, 487 U.S. 654, 689-90 (1988).
287 28 U.S.C. § 594 (providing “an independent counsel appointed under this chapter shall have, with respect to all
matters in such independent counsel’s prosecutorial jurisdiction established under this chapter, full power and
independent authority to exercise all investigative and prosecutorial functions and powers of the Department of
Justice”).
288 Morrison, 487 U.S. at 671.
Congressional Research Service
34

Congress’s Authority to Limit the Removal of Inspectors General

given the IC “any authority to formulate policy for the Government or the Executive Branch” nor
“any administrative duties outside of those necessary to operate her office.”289 Seila Law added a
gloss to Morrison’s description, concluding that the IC’s powers, “while significant” and
associated with “core” executive powers, were not policymaking or administrative authority
because they were “trained inward” to government officials rather than toward private entities,
and “confined to a specified matter.”290
If the IC did not possess “policymaking or administrative authority” in the view of the Supreme
Court, then it is difficult to argue that IGs do. IGs neither “formulate policy” for the executive
branch nor administer any federal statutory requirements “outside of those necessary to operate
[their] office.” As previously noted, while an IG can recommend that an agency implement
specific “policies” or “corrective action” following an investigation or audit, IGs can neither
compel nor prohibit agency activity. Nor can they be delegated any “program operating
responsibilities” or conduct “regulatory compliance” activities, both of which Congress has
entrusted only to the agency’s responsibility.291 IGs do have significant administrative control
over their office, both in hiring and firing staff and—to some extent—the process by which the IG
budget estimate is submitted to Congress.292 However, Morrison makes clear that administrative
powers “necessary to operate” the IG office would not be considered the type of “administrative
authority” sufficient to trigger at will presidential removal.293
Like the IC in Morrison, IG activity is also often “inward” facing in that their jurisdiction
generally relates to waste, fraud, and abuse within the “programs and operations” of the agency
for which they are given responsibility.294 But this is not always the case. While the purpose of an
IG investigation generally must relate to agency activity, IG investigative power, including IG
subpoena power, can be trained on members of the public who have a relationship to the agency.
The courts, for example, have previously enforced IG subpoenas issued to private parties who are
participating in agency programs, receiving agency funds, or operating pursuant to agency
contracts.295 Nevertheless, whatever limited authority IGs have to affect the rights of private
citizens, it does not seem comparable to that of the CFPB Director’s found problematic in Seila
Law.296

289 Id. at 671-72.
290 Seila Law, 140 S. Ct. at 2200.
291 5 U.S.C. App. § 9(a)(2).
292 Id. §§ 3(d), 6(g). Under the IG Act, the IG submits a “budget estimate” to the agency head and the agency head then
submits a budget proposal to the President that includes an “aggregate request” for the IG and any “comments” from
the IG. When the President submits a budget to Congress, that budget must include “a separate statement of the budget
estimate” that was initially prepared by the IG. Id. § 6(g)(1)-(3).
293 Morrison, 487 U.S. at 671-72.
294 5 U.S.C. App. §§ 2-6.
295 See, e.g., Inspector Gen. of the United States Dep't of Agric. v. Glenn, 122 F.3d 1007, 1011 (11th Cir. 1997)
(“While we agree that IGA's main function is to detect abuse within agencies themselves, the IGA's legislative history
indicates that Inspectors General are permitted and expected to investigate public involvement with the programs in
certain situations.”); Winters Ranch Pshp. v. Viadero, 123 F.3d 327, 333 (5th Cir. 1997) (“The Inspector General Act
clearly authorizes an IG to require by subpoena information from persons who receive federal funds in connection with
a federal agency program or operation for the purpose of evaluating the agency's programs in terms of their
management, efficiency, rate of error, and vulnerability to fraud, abuses, and other problems.”); United States v.
Hunton & Williams, 952 F. Supp. 843, 851 (D.D.C. 1997) (enforcing subpoena to contractor).
296 See Seila Law, 140 S. Ct. at 2200-201 (“By contrast, the CFPB Director has the authority to bring the coercive
power of the state to bear on millions of private citizens and businesses, imposing even billion-dollar penalties through
administrative adjudications and civil actions.”).
Congressional Research Service
35

Congress’s Authority to Limit the Removal of Inspectors General

It would appear that if removal protections for the IC were consistent with the Constitution, then
similar protections for IGs would likely be as well. If this is true, then any decision invalidating
for cause removal protections for IGs would likely have to either break from Morrison, or find
some way to distinguish IGs from ICs sufficiently. In that vein, it is possible that a distinction
could be made between the IC, who served a temporary function, and an IG, who serves a
permanent one.297 One factor contributing to the permissibility of the IC’s removal protections in
Morrison was that the IC was “limited in tenure.” Although there was “no time limit on the
appointment of a particular counsel,” the IC was “‘temporary’ in the sense that an independent
counsel is appointed essentially to accomplish a single task, and when that task is over, the office
is terminated.” In comparison, most IGs have “ongoing” responsibilities with no fixed or limited
tenure.298 It is notable however, that the only IG who currently possesses for cause protections
(the U.S. Postal Service IG) serves a seven-year term.299 Whether the tenure distinction is
constitutionally significant is not clear. The Supreme Court has never plainly held that a for cause
protection must be joined by a term of years.300 But if a reviewing court were to view the
provision of for cause protections to an inferior officer with a permanent function as a “novel”
structure or as requiring an “extension” of Morrison or other precedents, then the tenure question
could play a significant role in any judicial consideration of IG removal protections.301
Free Enterprise Fund and Dual Layers of For Cause Protections
There may be special constitutional considerations at play if for cause removal protections were
extended to DFE IGs in independent agencies. The Supreme Court’s decision in Free Enterprise
Fund seems to indicate that conferring removal protections on these DFE IGs could
impermissibly insulate them from presidential control and accountability through dual layers of
removal protections.
The Court’s opinion in Free Enterprise did not question Congress’s use of a single layer of for
cause protection to promote the independence of an executive branch officer.302 Instead, the Court
was addressing only the “unusual situation” of “two layers of for-cause tenure.”303 As such,

297 Morrison, at 487 U.S. at 672 (concluding that “the office of independent counsel is ‘temporary’ in the sense that an
independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is
terminated, either by the counsel herself or by action of the Special Division”). See also United States v. Smith, 962
F.3d 755 (4th Cir. 2020) (“Someone who temporarily performs the duties of a principal officer is an inferior officer for
constitutional purposes….”).
298 Some special IGs serve a “limited tenure.” See 15 U.S.C. § 9053(h) (providing that the Office of the Special
Inspector General for Pandemic Recovery “shall terminate on the date 5 years after March 27, 2020”).
299 39 U.S.C. § 202. Although the HEROES Act, H.R. 6800, 116th Cong., Div. G, § 70104,(2020), which passed the
House in 2020, did not include a term of years, other legislative proposal have. See, e.g., S. 3664, H.R. 6668
(establishing a term of seven years), 116th Cong. (2020).
300 See United States v. Perkins, 116 U.S. 483, 485 (1886) (upholding a statute providing that “no officer in the military
or naval service shall in time of peace, be dismissed ... except upon and in pursuance of the sentence of a court-
martial”). Some ALJs are inferior officers with for cause removal restrictions and no limited tenure. See Jeffrey S.
Lubbers, The Federal Administrative Judiciary: Establishing an Appropriate System of Performance Evaluation for
ALJs, 7 ADMIN. L.J. AM. U. 589, 592 (1994) (noting that Congress “omitt[ed] fixed term appointments” and that “ALJs,
once appointed, essentially achieve life tenure”). The Chief Actuary of the Centers for Medicare and Medicaid Services
has also been provided with for cause removal protections and no fixed-term. 42 U.S.C. § 1317.
301 Seila Law, 140 S. Ct. at 2192,
302 Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 501 (2010) (“The point is not to take issue
with for-cause limitations in general; we do not do that.”).
303 Id. (“And though it may be criticized as ‘elementary arithmetical logic,’ two layers are not the same as one.”)
(citations omitted).
Congressional Research Service
36

link to page 32 Congress’s Authority to Limit the Removal of Inspectors General

insulating establishment IGs from the President with a single layer of for cause protection does
not appear to violate the holding of Free Enterprise Fund.
However, that opinion could limit the provision of for cause protections to certain DFE IGs who
are removable only by DFE board members who are already protected by for cause protections.
This would include IGs in the Securities Exchange Commission, the Consumer Product Safety
Commission, the Federal Trade Commission, and the Federal Labor Relations Authority, among
others.304 Such an arrangement would separate the IG from the President with dual layers of
removal protections, insulating the IG from presidential control in possible violation of Free
Enterprise Fund.
But Free Enterprise Fund may suggest that this would be the case only if IGs are “Officers of the
United States” exercising “significant authority.”305 By its own terms, Free Enterprise Fund
limited its reach by identifying groups of “lesser functionaries” that might not be covered by the
opinion’s holding, including members of the civil service and—in the Court’s view at that time—
ALJs.306 As previously discussed, there appears to be no clear answer under current caselaw on
whether IGs are officers or employees.307 Nevertheless, Free Enterprise Fund’s discussion of
ALJs may be instructive for understanding whether that opinion could apply to IGs. The opinion
explicitly did “not address” ALJs because the Court found those officials to be distinguishable
from PCAOB board members at issue in the case before it.308 As opposed to board members,
ALJs’ status as Officers was at that time “disputed” (the Court has since determined that some,
and perhaps most, ALJs are officers, but has not yet addressed the separate question of whether
they can be separated from the President with dual layers of for cause protections).309 And unlike
PCAOB board members, they performed “adjudicative” or “purely recommendatory” powers
“rather than enforcement or policymaking functions,” and they did not “enjoy the same
significant and unusual protections from Presidential oversight.”310
Eight years after Free Enterprise Fund, the Court recognized in Lucia that most ALJs are
“Officers of the United States” under the Appointments Clause.311 But the distinctions drawn in
Free Enterprise Fund between PCAOB board members and ALJs could nevertheless suggest that
the restriction on dual layers of for cause protections may not apply to IGs. IGs may not be
officers; generally perform “purely recommendatory” powers; do not discharge “policymaking”

304 5 U.S.C. App. § 8G(e)(1). For a list of DFEs for purposes of the IG Act see 5 U.S.C. § 8G(a)(2). For a list of
agencies whose leadership is protected by for cause protections, see Free Enter. Fund, 561 U.S. at 550-553 (Breyer, J.,
dissenting).
305 Free Enter. Fund, 561 U.S. at 506 (reasoning that “many civil servants within independent agencies would not
qualify as ‘Officers of the United States,’ who ‘exercis[e] significant authority pursuant to the laws of the United
States’” and are therefore not “similarly situated to the Board”).
306 Id.
307 See supra “Are IGs Officers of the United States?”
308 Free Enter. Fund, 561 U.S. at 507 n. 10.
309 In Fleming v. United States Department of Agriculture, 987 F.3d 1093 (D.C. Cir. 2021), the majority of a D.C.
Circuit panel did not reach the constitutional question, but a dissenting judge would have ruled that separating certain
Department of Agriculture ALJs from the President with dual layers of for cause protections violates Free Enterprise
Fund. See id. at 1104-24 (D.C. Cir. 2021) (Rao, J., dissenting).
310 Free Enter. Fund, 561 U.S. at 507 n. 10. The PCAOB removal provision was uniquely restrictive, allowing for
removal only for “willful violations of the Act, Board rules, or the securities laws; willful abuse of authority; or
unreasonable failure to enforce compliance….” Id. at 502-03 (concluding that “Congress enacted an unusually high
standard that must be met before Board members may be removed”).
311 See Lucia, 138 S, Ct. at 2051-56. For a discussion of ALJs’ status following Lucia and Free Enterprise Fund, see
Kent Barnett, Regulating Impartiality in Agency Adjudication, 69 DUKE L.J. 1695, 1699 (2020).
Congressional Research Service
37

link to page 28 Congress’s Authority to Limit the Removal of Inspectors General

functions; perform only limited “enforcement” functions; and if given typical for cause
protections, would not possess the “unusually high”312 protections that were afforded to PCAOB
members.313
In sum, Free Enterprise Fund does not appear to prohibit Congress from protecting establishment
IGs from removal with a single layer of for cause protections. However, if DFE IGs in
independent agencies hold the type of office to which Free Enterprise Fund applies, then it would
appear that those IGs cannot be insulated from presidential control through dual layers of for
cause protections.
Conclusion
Congress’s use of for cause removal protections and other statutory, independence-promoting
features are a recognition that certain government functions should be carried out objectively,
impartially, and free from political influence. Yet while the Supreme Court has previously upheld
limitations on the President’s removal power, the Court appears to have recently cabined
Congress’s authority to use these statutory restrictions to a specified and arguably narrow class of
executive branch officers. Nevertheless, the typical IG appears to exercise a unique mixture of
powers that, as a matter of current constitutional law, fall within this existing judicial carve-out.
As such, it would appear that for cause removal restrictions would likely be a constitutionally
permissible means of encouraging independence for most IGs, except perhaps those DFE IGs
who would be impermissibly insulated from presidential control by multiple layers of removal
protections.

Author Information

Todd Garvey

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.

312 Free Enter. Fund, 561 U.S. at 503 (describing, compared to the typical for cause removal restriction, the “unusually
high standard that must be met before Board members may be removed”).
313 See supra “Assessing the IG Function.”
Congressional Research Service
R46762 · VERSION 1 · NEW
38