Will Trump Make An Article II Override Argument To Justify Firing IGs Without Providing 30 Days Notice?

Does Trump think the 30 day notice requirement infringes his Article II powers? Will he cite President Obama's refusal to provide notice of the Bowe Bergdahl transfers?

On Friday, President Trump fired about a dozen Inspectors General. These inspector generals are nominated by the President, and confirmed by the Senate. But the President's removal power is restricted through a notification requirement. 5 U.S.C. § 403(b) provides:

(b) Removal or Transfer.-An Inspector General may be removed from office by the President. If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal.

Trump clearly did not provide thirty days notice--doing so would have been impossible, since his term began only five days earlier. (Has it only been five days, feels like forever!?) Senator Chuck Grassley of Iowa, a champion of IGs, stated the obvious:

"There may be good reason the I.G.s were fired," Mr. Grassley said, referring to the inspectors general. "We need to know that, if so. I'd like further explanation from President Trump. Regardless, the 30-day detailed notice of removal that the law demands was not provided to Congress."

What is Trump's justification for not providing the notification? Maybe the restriction can't be applied to a new President who has just come into office? Does Trump think that the thirty-day clock infringe on his Article II removal power? Is he daring one of the IGs to sue him, to set up a Supreme Court test case?

Trump's refusal to provide notification brings to mind the Bowe Bergdahl situation. The National Defense Authorization Act required the executive branch to provide Congress with thirty-days advance notice before transferring certain detainees from Guantanamo Bay. But in 2014, President Obama did not provide advance notice before he transferred detainees in exchange for Bowe Bergdhal, an American POW. At the time, these released detainees were part of a trade to bring back Bowe Bergdahl. The Government Accountability Office concluded that the transfer violated "clear and unambiguous Law" and violated the "Antideficiency Act." How did Obama get around this statute?

The Obama Administration offered several defenses for the decision. Initially, at least, the Executive Branch said that the thirty-day restriction infringed on the President's Article II powers. I wrote about the constitutional issues with the release in an unpublished article:

Initially, Secretary of Defense Chuck Hagel justified the release on the President's inherent Article II powers, as a rationale for his failure to comply with the law: "we believe that the president of the United States is commander in chief, [and] has the power and authority to make the decision that he did under Article II of the Constitution." White House National Security Adviser Susan Rice—a Sunday-morning show stalwart—similarly alluded to the President's inherent powers during an interview on This Week, "We had reason to be concerned that this was an urgent and an acute situation, that his life could have been at risk. We did not have 30 days to wait. And had we waited and lost him, I don't think anybody would have forgiven the United States government."

Alas, the anti-Article II Obama Administration walked back that statement.

Shortly thereafter, the Administration attempted to walk back that position, and the National Security Council released a more refined statement, not based on inherent powers: the "Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances." Further, "Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances." The White House Press Secretary likewise explained, "The administration determined that given the unique and exigent circumstances, such a transfer should go forward notwithstanding the notice requirement of the NDAA, because of the circumstances."

At the time, Jack Goldsmith eviscerated this rationale.

We will see what positions Trump put forward for disregarding the 30-day notice requirement.

Update: In 2022, Congress amended the statute to also require the President to provide "substantive rationale, including detailed and case-specific reasons" why an Inspector General was removed. This isn't quite a "for cause" removal standard, but it comes close. The President cannot say "I lost confidence" or some such general statement.

Trump did not comply with the 30-day notice requirement, and did not provide any rationales, let alone substantive rationales.

This issue was also a hot topic on the Sunday news programs:

Sen. Adam Schiff, D-Calif., on Sunday blasted President Donald Trump for his decision to fire 18 inspectors general late Friday night and accused the president of breaking the law.

"To write off this clear violation of law by saying, 'Well,' that 'technically, he broke law.' Yeah, he broke the law," Schiff told NBC News' "Meet the Press."

His comment was responding to Sen. Lindsey Graham, R-S.C., who earlier in the program told "Meet the Press" moderator Kristen Welker that "technically, yeah," Trump had violated the Inspector General Act, which Congress amended to strengthen protections from undue termination for inspectors general.

"I'm not, you know, losing a whole lot of sleep that he wants to change the personnel out. I just want to make sure that he gets off to a good start," Graham added.

In a later interview on CNN, Graham defended Trump more forcefully, saying, "Yes, I think he should have done that."

"He feels like the government hasn't worked very well for the American people. These watchdog folks did a pretty lousy job. He wants some new eyes on Washington. And that makes sense to me," he added.

But Schiff pushed back on that notion, warning that "if we don't have good and independent inspector generals, we are going to see a swamp refill."

He added, "It may be the president's goal here … to remove anyone that's going to call the public attention to his malfeasance."

The White House has not yet commented on the justification for the removal:

On Saturday, a White House official told NBC News that a lot of the firing decisions happen with "legal counsel looking over them." But they added they were checking with the White House counsel's office, though they didn't think the administration had broken any laws.

It's not clear how Congress can address this apparent violation of the law, but on Sunday, Schiff said, "We have the power of the purse. We have the power right now to confirm or not confirm people for Cabinet positions that control agencies or would control agencies whose inspector generals have just been fired."