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."

Comments

[Mr. Bumble]

Different strokes for different folks.

[Dr. Ed 2]

All Trump has to do is pay them for 30 days and tell Congress that he "lacks confidence" in them for "classified" reasons, and only the latter if pressed.

It wouldn't be hard to make the case that revealing the reason(s) would either compromise law enforcement and/or national security.

[David Nieporent]

It would in fact be hard to make that case. In fact, it would be impossible.

[Riva]

If only Donald Trump was the president with inherent authority to remove officers, then the removal restrictions under the IG Act would be unconstitutional.

[not guilty]

It appears that President Trump is heeding the advice of Shakespeare's villain Dick the Butcher: "The first thing we do, let’s kill all the lawyers." Henry VI, Part II, Act IV, Scene II.

For context see here: https://lithub.com/what-did-shakespeare-mean-when-he-wrote-lets-kill-all-the-lawyers/ This commentary is trenchant:

Dick is a villainous character—he is a large, threatening murderer, and he is also the right-hand-man of Jack Cade, who is leading a rebellion against King Henry. Cade and Dick are aggressively anti-intellectual; they kill anyone who can read and burn all the books and documents they encounter. They know that they’ll be able to take over an ignorant population with greater ease than one where everyone understands their rights.

One reading of this strange quote suggests, therefore, that society could not exist in a state of fairness and peace without the protectiveness of both the law and its staunch guardians. Dick is suggesting that, in order for their coup to prevail, they must eradicate society of the very defenders of justice who could both stop the revolt he intends to help spur and then remove the power he hopes to grab for Cade.

In other words, this suggests that Shakespeare represented lawyers as the most fundamental defense against the grossest manifestations of power-hungry antics wrought by the scum of humanity.

[MollyGodiva]

SCOTUS and Republicans like a very powerful president, almost unconstrained by law, all on the basis of Article II and separation of powers, however Article II says nothing of that. Article II does say that the president must "faithfully execute the laws". Also I think the whole "separations of powers over actual text" is bunk, the Constitution clearly works by checks and balances. A close reading of the Constitution also shows that Congress has power over the President, but the President has almost no power over Congress. If anything, when in doubt the power dynamics analysis should go in the other direction, with Congress power taking precedence over the President.

[Michael Ejercito]

Wrong.

Presidents do have absolute authority over who may not serve in the Executive Branch.

Congress can not restrain this authority, any more than the President can restrain Congress's authority over who may not serve in the legislative branch.

[MollyGodiva]

You may believe that, and SCOTUS might agree, but it is not in the Constitution.

[Kazinski]

Yeah it actually is in the constitution:

"The executive Power shall be vested in a President of the
United States of America."

I can't think of a more core executive function than hiring and firing personnel.

Its seems like a analogue to the Tenure in Office Act which led to Andrew Johnson's impeachment. From Wikipedia:

"While evaluating the constitutionality of a similar law in Myers v. United States (1926), the Supreme Court stated that the Tenure of Office Act was likely invalid."

Now I can see a difference in that the IG's are tasked with uncovering waste, malfeasance, and corruption, not carrying out policy, but investigating is an executive function.

I'd give the law about a 25% chance of being upheld, especially since there is no concern that an incoming administration is firing IG's to hide any ongoing transgressions.

[JasonT20]

The "executive power" is to execute the laws passed by Congress. The President has only a few other powers than to enforce and implement laws passed by Congress. Virtually every position within the Executive Branch is created and defined by law. Are you saying that Congress can't create a job within the U.S. government and then say what the criteria are for that person to be fired?

The President as chief executive is still bound by the law. You all keep wanting to give the President the power to ignore the law, as long as it is fulfilling some policy preference of yours, and as long as the President is a Republican. At this point, I am just wondering when you will drop the act and say it straight that the only votes that matter are yours.

[Kazinski]

"Are you saying that Congress can't create a job within the U.S. government and then say what the criteria are for that person to be fired?"

I am glad you seem to understand. Because that is what the discredited and now repealed Tenure in Office Act did:

" The law was enacted March 2, 1867, over the veto of President Andrew Johnson. It purported to deny the president the power to remove any executive officer who had been appointed by the president with the advice and consent of the Senate, unless the Senate approved the removal during the next full session of Congress."

And see "Myers v. United States, 272 U.S. 52 (1926), was a United States Supreme Court decision ruling that the President has the exclusive power to remove executive branch officials, and does not need the approval of the Senate or any other legislative body. It was distinguished in 1935 by Humphrey's Executor v. United States. However, in Seila Law LLC v. Consumer Financial Protection Bureau (2020), the Supreme Court interpreted Myers as establishing that the President generally has unencumbered removal power. Myers was the first Supreme Court case to address the president's removal powers."
https://en.m.wikipedia.org/wiki/Myers_v._United_States

[Bored Lawyer]

That was the holding of Myers v. United States. I am glad someone brought it up. Frankly, I don't see how this law survives Constitutional scrutiny under that decision. Which is still good law.

[Voize of Reazon]

investigating is an executive function

Do you believe that Congress doesn't have any investigative powers? Were all those committee meetings pursuing the Bidens unconstitutional?

[Kazinski]

Congress has extensive investigative powers, but that is totally separate and distinct from executive investigative functions.

It should take about 2 seconds thought to see the distinction.

[Voize of Reazon]

Correct, investigating is not an executive function. And so, when Congress creates an office with investigative powers, even if the office lies within the executive branch, they are not powers vested in the President so he does not have a Constitution-based authority to override limits Congress places on his control over those officers.

[Kazinski]

Yeah, go with that one.

[David Nieporent]

Are you claiming that the Pendleton Act is unconstitutional?

[Mr. Bumble]

Has it or the update Civil Service Reform Act ever been challenged and resulted in an SC decision?

[Zarniwoop]

Do you presume an act of Congress is unconstitutional unless and until the S.Ct. affirms it?

[Kazinski]

Sometimes that's the case.

Suppose the current Congress passed a law implementing Trump's EO on birthright citizenship, wouldn't you presume it was unconstitutional until it was affirmed.

[Michael Ejercito]

Yes.

[With Trump in, "now Lord you can let your servant go in peace"]

"bunk" "close reading" "clearly" --- this is you dressing up plain-old "I prefer" in fancy dress so it can go out in public I take it you don't like SCOTUS or Republicans.

[Noscitur a sociis]

Could congress pass a law requiring the president to give it notice and an explanation before issuing a pardon? Vetoing a bill?

[David Nieporent]

The Constitution requires the latter!

Article 1, Section 7:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it

Emphasis added

[Noscitur a sociis]

Not ahead of time!

[MollyGodiva]

Probably not for pardons, but yes for veto because the the explanation is mandated in the Constitution.

"If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it."

[Noscitur a sociis]

My question was whether Congress could require advance notice before the president takes the action, i.e. mandate a procedure that the constitution doesn’t. It sounds like you agree the answer is at least sometimes no—i.e. that there are in fact limits to the power congress can exercise over the president simply by enacting a law restricting presidential authority.

[MollyGodiva]

Pardons and vetos are expressively in the Artilce II, so probably not. But for most everything else, yes, Congress makes the laws and the president faithfully executes those laws. Congress funds, creates, and regulates every office in the Executive branch other than the Pres and VP.

[David Nieporent]

I agree with Molly here. There's an awful lot of imperial presidenting advocacy here, with people trying to create a lot of "inherent powers" of the presidency based on nothing specific in the constitution.

[Michael Ejercito]

There is not anything imperial about the President excluding a person or persons from exercising executive authority.

[David Nieporent]

There is if there's a law that says otherwise.

[David Nieporent]

Just to elaborate on this: suppose Congress passes a law setting the income tax at 15% of income, and tasks the IRS with collecting that money. Can the president say, "Well, the IRS is in the executive branch; its employees work for me, I can tell them what to do, so I order them to collect 20% of everyone's income"? Can the president say, "Nah; I don't like income tax, so I order its employees not to collect it"?

I think all sane people would agree the answers are no; the fact that an agency is in the executive branch does not mean the president can order its employees to do whatever he wants them to do. Neither magic words like "inherent executive power" nor "unitary executive" give the president the power to override laws passed by congress that tell executive branch officials what to do. With a few exceptions — vetos, pardons, etc. — the president's executive power is the power to carry out the laws Congress passes, not the power to do what he wants with the executive branch.

[darkknight9]

In that light, what if the DoJ is told by the executive not to prosecute individuals for certain drug crimes?

Is that at all similar to the tax examples?

Either way, is there some type of redress if it harms individuals when the executive starts overextending or pulls muscles trying to avoid doing its job?

[Michael Ejercito]

One of the exceptions is the power to exclude a person or persons from exercising executive authority.

[One-Punch_Man]

Funny. Everything you always write is wrong. Which democrat official are you?

It must be hard getting through life being this dim.

[ReaderY]

Could Congress counter such an argument with its own override argument, that inspectors general are really employees and agents of Congress, whose job it is to help Congress in its duties to investigate and report on the Executive Branch to help Congress fulfill its oversight responsibilities? Under this argument, letting the President have any say at all in appointing or replacing them in the first place was an act of grace that Congress never had to do at all, and could completely take away any time it wants.

[Michael Ejercito]

Great idea!

I would make this argument, if I had to defend this law.

Implicit, of course, is that Congress would be able to fire IGs by a simple joint resolution passed by simple majorities of quora of the House and Senate- no need to go through the impeachment process.

[Keldonric]

This makes sense.

[Longtobefree]

Please confirm your theory by providing a list of all government agents nominated by the President and confirmed by the senate who are currently employees of Congress.

[David Nieporent]

Well, Carla Hayden is certainly one.

[LawTalkingGuy]

Librarian of Congress
Comptroller General (head of GAO)
Director of the Government Publishing Office
The Architect of the Capitol prior to 2024

Also the President appoints members of the United States Sentencing Commission which is an agency totally within the control of the judicial branch.

[Noscitur a sociis]

Congress, of course, isn’t going to participate in any legal argument over this. But since the inspectors general are employees of their respective executive branch agencies, I don’t think this argument would have a lot of force, whoever made it.

[Sarcastr0]

I don't think that's what current precedent says - Congressional limits on Presidential removal powers has been backing and forthing for over a century now.

The Supreme Court has not pulled the Unitary Executive trigger yet.

[Noscitur a sociis]

That’s true, but doesn’t seem to have a lot to do with this discussion, which is over ReaderY’s proposed argument that inspectors general are really working for congress.

[MollyGodiva]

Oh they well soon enough. The current court has no problem re-writing the constitution to suit their politics.

[Michael Ejercito]

Our executive is unitary.

[MollyGodiva]

That is a controversial legal theory unsupported by the Constitution. It is also dangerous if you have a lawless president.

[Noscitur a sociis]

“The executive Power shall be vested in a President of the United States of America.” U.S. Const., art. II, sec. 1.

[LawTalkingGuy]

It’s an argument for a better structure but Congress would have to change the statutes authorizing IGs. I don’t think there’s any constitutional reason that Congress couldn’t control the appointment and employment of Inspectors General and give them the same authority to investigate agencies and report to Congress.

[Voize of Reazon]

Not employees of Congress, §403 is clear that they report to and are under the general supervision of their agency head, but performing an oversight function rather than an executive one.

As a result the only control the President and his agency heads have over them is as the statutes provide. As §402 explains, the IGs were created as "independent and objective units" to find and expose inefficiencies, problems and deficiencies in the agencies and to inform the heads and Congress of the necessity and progress of corrective action.

If this sounds like Congress planting moles in the agencies with the power to rat out even their bosses then I think you are getting the right idea.

[Dr. Ed 2]

And Trump's lack of confidence is grounds to fire them.

[Voize of Reazon]

Yes he can fire them, because the statute says he can.

[Kazinski]

No.

Congress can and does exercise its own investigative and oversight function, and perhaps they could create their own investigative body akin to the Congressional Research Service, but its unclear how robust its powers could be. After all as we have seen recently (see Eric Holder, Merrick Garland), if the DOJ won't prosecute contempt of Congress there is no mechanism other than impeachment to compel cooperation.

But that is not what they did with the IGs, which are clearly within the executive branch.

[Michael Ejercito]

Which branch's authority do IGs exercise?

[Drewski]

Their authority is statutory, not constitutional, so they exercise the authority Congress granted them. They have no independent authority gleaned from a "branch."

[Dan Schiavetta]

You forgot to mention that Obama had tried to close Guantanamo and the Republican Congress unreasonably would not authorize that.

It’s obvious that today’s invertebrate Republican Congress would have approved the sacking of these IG’s, even knowing (as is obvious) the reason is to allow corruption or dereliction of duty to go unexamined and unreported. Trump just doesn’t care. We saw this over and over in his first term.

[damikesc]

What corruption or dereliction of duty has Trump engaged in over the last (checks watch) 5 days?

[Alpheus W Drinkwater]

His duty to faithfully execute the laws, like for instance 5 U.S.C. 403.

[MollyGodiva]

The Birthright Citizenship EO and other EOs that told his people to violate federal law or to stop programs or distributing funds that Congress already allocated.

[David Nieporent]

What corruption or dereliction of duty has Trump engaged in over the last (checks watch) 5 days?

You mean, other than pardoning the people who tried to install him in an insurrection?

[windycityattorney]

Did he use his political position to corruptly make tens of millions/hundreds of millions dollars on a $Trump crypto coin? Who is going to investigate that? His hand picked Atty General? One of these fired inspector generals? How much of that money is from overseas? Pshhhhhhhhhhhh Guess it will always be a mystery.

[With Trump in, "now Lord you can let your servant go in peace"]

"unreasonably" ---okay you can safely be ignored 🙂

[ReaderY]

Of course he cares! He cares a great deal. It’s because he cares that he doesn’t want people around ratting on him while he and his people are getting the things he cares about done.

[JoeFromtheBronx]

The thirty-day notice is a trivial limitation, especially given the importance of careful treatment of inspectors general but the YOLO Administration doesn't want even that.

Prof. Both Sides remembers a not-quite comparable situation & takes potshots at the Obama Administration in the process. The "unpublished article" quoted includes another dig.

What is the argument there was anywhere as a compelling need to speed things along [w/o necessarily agreeing it was there before] in the current firing? All executive actions that do not follow statutory guidelines are not created equal.

A careful analysis that supports Art. II warrants remembering that.

[fatnastyretiredguy]

Once again Professor Blackman you totally miss the point. Once again you use many more words than necessary to convey a thought and in the process manufacture a fog bank to obfuscate the real issue.

This time you choose to argue the law and ignore the moral implications of the action. Compare just a few days ago your whining and gnashing of teeth as no one in the media stood up and questioned Justice Jackson’s attire. The answer to that one was really quite simple. Justice Jackson is a citizen of the United States and has the right to choose her own wardrobe. She does not leave her right to speak locked in the vault just because she now sits on the high court. If she finds fault with the country’s most recent selection of President she retains her right to comment. You certainly were aware of all this when you castigated others for finding fault with the manner in which Mrs. Alito flew her flags. If talking-head media types want to make a big to do about nothing at all, let them waste their time. You have chosen to be an academic in a often misunderstood, but fairly reputable profession. Calm the waters, don’t stir them up. Grow up, sir. Mature. You have chosen your path in life. Quit disgracing it. Please grow into the responsibility.

Now back to the real issue involved in Mr. Trump’s dismissal of a large group of Inspectors General. It doesn’t appear you have any extensive experience working within a federal agency. So first lets get a common understanding of what the Inspectors General do. They are the traffic cops of the bureaucracy. They are one of the few subagencies that are not so much interested in the task of the agency as very interested in insuring the agency follows the rules of the road while trying to achieve its assigned tasks. IG’s are, or at least can be, a total pain in the ass for others within the agency just trying to get the job done. They tend to be a bit smarter and a bit better informed as to their agencies tasks than most employees. In addition to being traffic cops, they have the responsibility to limit as best they can the fraud and graft that can always be present when an entity gets as large as the federal government. This is analogous to the big farm dog who keeps the fox away form the hen house.

My experience is that many of Mr. Trump’s most avid supporters acknowledge his narcissistic propensities. There is validity to the argument that anyone desiring to get to office of the President must necessarily have the thick skin of a narcissist. It is not at all surprising that type of personality would chafe under the restrictions imposed by a system of Inspectors General. However, in this situation it is not that Mr. Trump fired an Inspector General or two. It is that he fired several Inspectors General, some of whom were members of critical agencies. He has in one felled swoop removed critical traffic cops policing the roadway and hound dogs watching the chicken coop. This is a move of potentially significant Machiavellian consequences. Whether this action can be immediate as Mr. Trump asserts or must wait thirty days to be effective does not matter a whit.

That Professor Blackman is the issue presented. Quit wasting words over little or nothing. Raise up the real issues out of the fog bank. The issue is not an upside down flag nor sea shells on a woman’s robe. The issue is who is in power and are they using that power appropriately. All the rest is just chaff.

[Michael Ejercito]

Moral implications are beside the point in this context.

the dispositive question is whose authority does the IG exercise?

[Alpheus W Drinkwater]

No. The dispositive question: Is the President required to faithfully execute the laws of the United States?

[Noscitur a sociis]

The unconstitutional ones? No.

[Jason Cavanaugh]

Begging the question there a bit, aren't you?

[Alpheus W Drinkwater]

So in your view, a President is empowered to ignore any law because in his opinion it is unconstitutional? In your view is he required to explain his opinion, or can he just do whatever he wants?

[Noscitur a sociis]

We’re talking about the Trump administration, so I will freely admit there’s a good chance they simply didn’t realize that there was a law that said they weren’t supposed to do this.

But as a general matter: I don’t think there’s anything objectionable about a president contesting a law that they think is unconstitutional, and I think this is probably an example of the best way to do that, by taking the issue on in a straightforward way that doesn’t seem to offer a lot of distracting political complications.

[Sarcastr0]

There's a lot of ambiguity in that general matter, I think.

I've got no problem with teeing up a fight over checks and balances.

But a 'let me try it and see if I can get away with it' executive is corrosive to our Constitutional order.

[Noscitur a sociis]

So what can a president legitimately do to challenge an unconstitutional restraint on their removal authority, in your opinion?

[Sarcastr0]

My issue is less when it's how - pay attention, do your homework. Don't just ignore the rules and dare them to stop you.

I don't think that 'how' is amenable to a legal check.

So what is an interesting question. This is one where reasonable minds can differ, though going 100% all or nothing is bad news.

I'd go with a fact-specific purposivist analysis - what is the reason Congress is insulating a position from executive control, and are the strings they've attached well tailored to that purpose?

[Noscitur a sociis]

So let’s say that the fact-specific purposivist analysis unequivocally shows that the restriction is unconstitutional. What, if anything, do you think a president can do about it?

[Sarcastr0]

I see - I was going with what the court's standard is, but that same would apply to the President as well.

As to how to go about getting the legal ball rolling, it's as I said before - do your homework, and give notice about what you're going to do and why you think it's called for. Then do it.

[Alpheus W Drinkwater]

I do agree, I think the President actually has an obligation to challenge laws that are unconstitutional in his view. Disobeying it before challenging it in court and getting a favorable decision seems problematic to me, but I guess that is our system.

[Noscitur a sociis]

How could Trump have preemptively challenged this in court?

[Alpheus W Drinkwater]

He wouldn't have standing to bring a case in federal court arguing that the law infringed on his Constitutional authority, before disobeying it? Your question would seem to imply that the answer is no.

[Noscitur a sociis]

A case against whom?

[Jason Cavanaugh]

As I mentioned in the other thread, he seemed aware of the law last time.

https://www.cnn.com/2020/05/15/politics/state-department-inspector-general-fired/index.html

Multiple (retaliatory) IG firings, multiple letters sent to Congress informing them it would happen in 30 days.

This is flouting of the law, not ignorance.

[Noscitur a sociis]

The fact that someone in the last Trump administration, they had someone around who was competent enough to know about this rule does not, in my view, establish that there was someone around last week who knew about it.

[Jason Cavanaugh]

So your argument is that last time, when Trump wanted to fire those IG's, he wasn't told that he'd have to wait 30 days?

You should've followed the links and gathered more information.

https://www.cnn.com/2020/04/03/politics/read-michael-atkinson-letter/index.html

That's Trump's signature, right? I told you it wasn't ignorance. He thinks that the law (any law) doesn't apply to himself and now he believes that nobody will punish him.

[Noscitur a sociis]

I guess we’ll have to agree to disagree: you seem to have a much higher opinion of Trump’s intelligence, memory, and attention to detail than idea.

[Jason Cavanaugh]

So what would the excuse be for his continued behavior?

It's been widely reported that his actions are a violation of the law. If you think he just somehow didn't know it, what happens to that excuse when it isn't past-tense anymore?

He knows it, and he's still forging ahead anyway. Does that show respect for the law to you?

[Lee Moore]

Josh explained the distinction.

From day 31 of his term, the President cannot claim that the law unconstitutionally prevents him from firing an IG. Because if he had got his act together on Day 1 he could have given notice in time to send the IG out of the door on Day 31. Thus the law requiring notice to Congress is not a block on firing the IG, when the President chooses to do so, it is just a notice requirement.

But this applies only from Day 31 of the President's term. During Days 1 to 30, however, the law - if it has any teeth - is not simply a requirement to give notice but serves as an actual legal block on firing the IG during the first 30 days of the term.

While a requirement merely to give notice may be constitutional, an actual block on the core executive function of disposing of executive branch excreta, is unconstitutional.

Substitute the Cabinet Officers for the IGs in the law, and you have the government being run by the prior President's Cabinet for the first month. And if a month, why not 6 months ?

At least that's the theory.

[bernard11]

Does the 30-day rule apply to cabinet officers?

[David Nieporent]

Not sure if that was rhetorical or not, but of course this law is specifically about IGs.

[David Nieporent]

We’re talking about the Trump administration, so I will freely admit there’s a good chance they simply didn’t realize that there was a law that said they weren’t supposed to do this.

It's 100% that Trump himself didn't know, but I doubt the people who actually prepared the order didn't know.

(This is not Trump-is-senile argument the way the MAGA people were employing against Biden; this is an this-is-the-way-it-works-for-all-presidents argument. I do think Trump is particularly ignorant and incurious, but even a president who's a policy wonk isn't getting down in the weeds on these sorts of issues.)

[Noscitur a sociis]

I actually disagree on both points. Certainly the normal system would be for staffers to know about this kind of restriction rather than the president personally, but I do think that there’s a good chance that the Trump administration may not have people in those roles competent enough to see it. I also think that if the point of the order (or even a major effect) is to launch an aggressive challenge to the constitutionality of a restriction of presidential power, it’s incumbent of the people who proposed the order to make sure the president understands that before signing off on it.

Why anyone thinks either of these beliefs represent a defense of the Trump administration continues to elude me.

[MollyGodiva]

I think it depends. If the law might under some circumstances be a 4A violation then the President should use the courts to challenge the law. If the law requires the President to round up all people of Irish decent and enslave them, then the President must not obey that law.

[Jerry B.]

Biden did, and SCOTUS slapped him down for it.

[Noscitur a sociis]

1. A president who initiates this kind of challenge does run the risk of being wrong.

2. Assuming that you’re talking about the student loan forgiveness stuff, the criticism isn’t that Biden challenged an unconstitutional restriction on his authority but ultimately lost: it’s that his actions were definitely unlawful but he did them anyway.

[Michael P]

Only if this law is a valid one.

[MollyGodiva]

It is valid. There is nothing in the Constitution that even implies it is not.

[Noscitur a sociis]

James Madison, Alexander Hamilton, and William Howard Taft all disagree with you. Does that give you any pause at all?

[MollyGodiva]

Not really. The actual text of the Constitution was debated, passed, and ratified. Their individual opinions were not.

[JoeFromtheBronx]

Hamilton's opinion on the power of the executive to fire changed. Madison changed his mind about things over time too. What they both would think about the situation is far from clear. Putting aside that they were wrong about certain things. Taft's opinion was challenged by Brandeis and Holmes.

BTW, to address something else, it is far from obvious that Trump "didn't know" (at least in a general sense) though it is easier to assume the people who crafted the law knew, Trump does know various legal restraints that he ignores because he doesn't care about them.

In a general sense, that very well might be the case here. He might know about this specific legal restraint while still being clear that he doesn't generally care about any such restraints. "I don't care about petty rules here, get rid of people who will interfere." IOW, the people doing this know they are not violating his general desires.

[JoeFromtheBronx]

Corrections not fixed within the five-minute window:

easier to assume the people who crafted the [firing order] knew

He might [not] know about this specific legal restraint

[With Trump in, "now Lord you can let your servant go in peace"]

THey did shit under Most Foolish Biden , who was a doddering incompetent. You disliked TRump and liked Biden. Okay, just say that.

[JoeFromtheBronx]

Yes, the usage of many more words than necessary to convey a thought is misguided.

[ReaderY]

That train left the station a long, long time ago. If the American people had wanted someone who gave a shit about morality, they would have elected someone else.

The question today isn’t what he should do. He doesn’t give a shit about that. This is a man who answers to the call of booty, not duty. And nobody half-sane or half-aware of what’a going on around them has any business expecting him to do otherwise. The question for today is what he can do. And what he can do is not what the law says, but what he can get away with.

[RedheadedPharoh]

>So first lets get a common understanding of what the Inspectors General do. They are the traffic cops of the bureaucracy.

Nominally. In practice they are the cover-up artists for any bureaucratic malfeasance.

[damikesc]

Unless the IG's are legislative branch employees --- which, mind you, they are not --- Congress has no position worth taking seriously on this issue.

The Executive Branch also cannot control who becomes Congressional aides.

[Alpheus W Drinkwater]

Where in the Constitution does it say that Congress has no say in who serves in the Executive? In fact, the Senate has advice and consent over a good many positions in the executive. And further, at the time he was writing the Federalist Papers, Alexander Hamilton believed that the President could not even dismiss Cabinet ministers. He had changed his mind a few years later, but his writing right after the convention clearly indicates that the framers recognized no such limitation on Congress' powers.

[Krayt]

Maybe. But I've never been a fan of Congress trying to quasi-perma ensconse people in positions of executive power, because it lets one party hang onto some power after losing power.

[Alpheus W Drinkwater]

I agree with you. I just don't see what prevents Congress from doing it, if they disagree with our opinion.

[Voize of Reazon]

I agree that IGs are executive branch employees, they report to executive branch heads and are provided resources and budgets by those branches, but it is a separate question whether they exercise executive power.
Their primary duties are to perform audits and investigations and produce reports and recommendations, including semi-annual reports to Congress and the public, but they have no power to act on those recommendations. That is left to the head of the agency they report to. Performing audits and investigations and writing reports and making ignorable recommendations is not a core executive function and so not a delegation of a power vested exclusively in the President.

[Lee Moore]

Leaving aside "core" - why do you think that such activity is not "executive" ?

These folk execute the tasks of performing audits and investigations and producing reports and recommendations. If they don't have power to act on those recommendations, well that's true of lots of people in a bureaucracy. The typist who types the report doesn't implement its recommendations but he/she/it is still part of the executive machinery. The military intelligence officer who predicts a Chinese attack on Taiwan next Tuesday is not responsible for preventing or mitigating it, but he's still in the executing the President's defense responsibilities game.

It's true that in our system the "legislative" branch has taken on the task of overseeing the executive branch, under cover of the claim that this is all preparatory to possible legislation, and so it can get away with audity / investigatory / reporty behavior. But it's not really legislative. That's just the cover.

If you look at the analogy with a business - which is entirely executive (a business has no legislative or judicial function) - the internal audit department plays a sort of IG role. But it is doing so to assist senior management assure themselves that they have their control systems in working order. It's an aid to the execution of the business.

[Voize of Reazon]

If government typists are still a thing maybe DOGE can do some good after all...
Anyway, the reasoning supporting the President's unlimited power of removal (quoting Seila Law) is that

The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States

But a typist, though employed in the executive branch, isn't exercising executive power vested in the President. If they were, the other branches couldn't have typists. I suppose their typing is "executive activity", since it the job of an executive branch employee, but that isn't the right test.
Same with investigating executive branches and writing reports. Congress does it too. There are even journalists who do it and don't belong to any branch of government.

[Noscitur a sociis]

In fact, the Senate has advice and consent over a good many positions in the executive.

Including these positions!

But that’s a role that the constitution specifically provides for (one house of) Congress. What’s the constitutional basis for a greater role?

[Alpheus W Drinkwater]

In my humble opinion, I would base their greater role on the fact that the Constitution does not establish any specific executive officers or offices except for P and VP, and that all the rest, including IG's, were created by Congress, starting with the very first Congress setting up cabinet departments. What in the Constitution would prevent Congress from setting limitations on changing or terminating the offices and officers they are creating?

[Noscitur a sociis]

The fact that the constitution vests the executive power in the president, not congress.

[Alpheus W Drinkwater]

These offices are created and defined by Congress. Legislative power.

[Sarcastr0]

They both have hand in.

This is exactly the interplay that makes me reject the idea that removal authority can lie with only one of the 2 branches.

[Josh R]

Does Trump think the 30 day notice requirement infringes his Article II powers?

Trump is not aware of any of these nuances. He is a wanna-be strongman who will do whatever he wants and let the lawyers figure it out.

[Zarniwoop]

No one seems to actually doubt that the firings violated 5 U.S.C. 403(b), so let's skip straight to the interesting questions:

Who has standing to pursue such remedies? What's the proper venue? What are the possible remedies? What's the practical impact of getting the courts involved? Are there prudential reasons the courts wouldn't intervene?

If, for example, one of the IGs brings a complaint tomorrow (Monday) in the District Court for WashDC, asking for a TRO that declares "I still have a job as IG" - without looking, probably the correct venue. They're injured, so they probably have standing. BUT! What's the remedy? A ruling that "firing is ineffective until the 30 day notice is completed"? And would Trump then just "suspend" the IG, send notice to Congress, and wait it out - or would the DOJ fight it to establish precedent that 5 U.S.C. 403(b) is an unconstitutional infringement on Art II power?

Or is there no remedy at all - does the DC D.Ct. say "yep, violated the language of 5 U.S.C. 403(b), nothing I can do about it"?

I am fairly confident neither the House or Senate will have the spine to challenge Trump on this. Any motion to be a plaintiff in a lawsuit challenging the action will never get to a vote, because the leadership in both chambers will just whip out their kneepads and assume the position.

I am moderately confident (again, without any research! from memory!) that individual members of Congress lack standing.

[Don Nico]

Z, it seems that you cite the correct "solution" for Mr Trump: that he places these employees on paid leave for thirty day with the announcement that Friday's firings were meant to be the 30 day notice. 5 U.S.C. § 403(b) does not say that Congress can refuse to accept the reason for dismissal, only that notice be given.

[Zarniwoop]

Mostly agreed. Prof Blackman points out:

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.

At some point the "reason" could be so obviously arbitrary-N-capricious that it fails to meet the 403(b) notice requirement, like "It's Tuesday, so I fired them."

But that would have its own "who has standing?" issues that are arguably different from the present scenario. Maybe only Congress would have standing at that point? Dunno.

[David Nieporent]

But that would have its own "who has standing?" issues that are arguably different from the present scenario. Maybe only Congress would have standing at that point? Dunno.

But even if someone had standing, what would be the remedy? That a court order the president to provide a better rationale?

[Bored Lawyer]

See below. Remedy would be back pay, on the theory that their firing was illegal. That was the claim in Myers v. U.S. Of course, Myers lost, and as I say below, this statute is unconstitutional for the same reason.

[David Nieporent]

No, you're answering a different question. I'm not talking about what Trump did here, firing someone w/o 30 days notice to Congress. I'm asking about the remedy in the following scenario:

At some point the "reason" could be so obviously arbitrary-N-capricious that it fails to meet the 403(b) notice requirement, like "It's Tuesday, so I fired them."

IOW, he gives his 30 days notice, gives a purported reason, but it's a bad faith non-reason.

[Katall]

It will not matter unless the Article I people reassert their proper authority. I doubt they will.

[Noscitur a sociis]

What would that reassertion look like in this context?

[Katall]

Not approving nominees. Not appropriating money. Hearings.

[ducksalad]

If there was a majority of the Senate that wanted to reassert? Put a hold on confirmations until they get what they want. Or vote down some of his most favorite nominations to send a message.

[JoeFromtheBronx]

Chris Geidner discussed this action & referenced this:

The inspectors general showed how people need to respond to Trump and the Trump administration when illegal actions are taken. In a letter sent to the man who purported to illegally fire them, the chair of the council for the inspectors general, Hannibal “Mike” Ware, wrote, “At this point, we do not believe the actions taken are legally sufficient to dismiss Presidentially Appointed, Senate Confirmed Inspectors General.“

https://substack.com/inbox/post/15571285655

[letter provided]

See also:

https://www.politico.com/news/2025/01/25/donald-trump-inspectors-general-firing-00200611

One interesting tidbit:

Some advocates for inspectors general said they were baffled by the Trump White House’s choices of whom to dismiss. Several of those who were fired were appointed by Trump and at least one — Sean O’Donnell at the EPA — was perceived as closely allied with Trump by Democrats, who sharply criticized his conduct.

Also, Hegseth promised to protect the independence of inspector generals in response to written questions.

[Zarniwoop]

Also, Hegseth promised to protect the independence of inspector generals in response to written questions.

As much as I think Hegseth is ridonkulously unqualified, I'm not sure how he's necessarily to blame him for Trump's wholesale firings.

[JoeFromtheBronx]

Neither do I.

It does suggest that even he, at least on paper, respected the independence of the inspectors general.

Shows the blatant nature of the act.

[Frank Drackman]

"47" should invite the IG's all in for a "Sit Down" like Al Capone did in "The Untouchables". I think after he "Fired" the first one the rest would submit their resignations with alacrity

[Krayt]

That's going a bit far. "Hoffa" may be a better movie reference, where Jack Nicholson explains to the kid, when you take over, fire people right away and be done with it. Then whoever is left is grateful.

Regardless he's moving fast before people can respond.

[River]

Why exactly would it have been impossible for Trump to have provided 30 days notice? What would have prevented then-president-elect Trump, in December, from sending a letter to both houses of congress saying "when I take office, I will remove the following IGs for the following reasons"?

[Noscitur a sociis]

The statute says that “the President” shall provide the notice 30 days in advance, and 29 days ago, Trump wasn’t the president.

[Zarniwoop]

Well, 403(b) says in relevant part:

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.

Until noon on Jan 20, Trump was not "the President".

Do I think the P-elect should be able to send the notice? It's not unreasonable ... but it's not what the statute says, either.

[River]

On a grammatical level, it seems to me the statute is ambiguous about whether "the President" is the president when the letter is sent or the president when the IGs are removed, and in light of what the statute seems to be aimed to achieve, interpreting it as the president when the IGs are removed seems better.

[hobie]

That is genius-level interpretation

[Noscitur a sociis]

I don’t see any ambiguity. The statute says, “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.” If Trump had sent a letter in December, that wouldn’t have been the President making the necessary communication.

Now, I agree the statute easily could have been worded to work the other way, and the fact that it isn’t is probably fortuity rather than a calculated policy choice. But we’re still left with what it says, it what it could have said.

[Katall]

There is a law. The president does not follow the law. The most appropriate response is impeachment. That, of course, won't happen. Mostly because congress has ceded power to the president.

[Noscitur a sociis]

Another president was impeached for, inter alia, not adhering to a congressional restriction on his removal authority. This is not, as I understand it, generally regarded as congress’s finest hour.

[bernard11]

Why exactly would it have been impossible for Trump to have provided 30 days notice? What would have prevented then-president-elect Trump, in December, from sending a letter to both houses of congress saying "when I take office, I will remove the following IGs for the following reasons"?

More simply, why couldn't the asshole have sent the notices right after the inauguration and then wait a month to act? Is he so terrified of the IG's that he has to get rid of them immediately?

Just send the notices and wait 30 fucking days, you slimeball.

I'd argue that all the talk about whether he knew the rule or not or whatever is nonsense. The guy has proven himself incompetent any number of times, and this is, IMO, just another case.

[MollyGodiva]

It's about fear, showing officials that they serve at his mercy no matter what the law says.

[Mr. Bumble]

If they are part of the executive branch they serve at his pleasure.

[MollyGodiva]

That statement is not supported by the text of the Constitution.

[River]

Does the text of the constitution not tell us that the executive power is vested in the president? One reasonable reading of that, to which I am inclined, is that every person exercising any sliver of that executive power, every employee of the executive branch, must therefor serve at the pleasure of the president. If a person doesn't consider that an honor during the current administration, then perhaps it is time for them to move on to private sector work.

[David Nieporent]

Does the text of the constitution not tell us that the executive power is vested in the president?

It does. But those are too few words to bear so much weight.

[River]

Is there a stronger basis in test of the constitution for congresses power to regulate personnel decisions of the executive branch?

[River]

He certainly could have. Maybe he should have, I don't really have a position on that. But if your position is that he was legally obligated to wait 30 days after inauguration, that he lacks power over IGs who are part of the executive branch until February 19, that he is somehow not fully the president for the first month of the term to which he was lawfully elected, well, that certainly raises constitutional questions.

[MonitorsMost]

The anti-Article II Obama administration? I’ve seen Josh assert a lot of crazy things, but man this is up there.

[Bored Lawyer]

I am glad Kasinzki brought up Myers v. United States. The opinion is here: https://supreme.justia.com/cases/federal/us/272/52/.

That is the current law under SCOTUS precedent. Which was decided before Trump was born. I fail to see how the current law can be upheld under Myers.

[MollyGodiva]

Under precedent, the law could likely not be upheld. Our point is that that precedent is not supported by the text of the Constitution.

Also, those cases and discussions prior to ratification are based on empowering the president to "faithfully execute the laws". What we have now is a president who has no intention to "faithfully execute the laws", thus the analysis is different.

[Bored Lawyer]

Whatever you think, Myers is the law of the land. Go ask SCOTUS to overturn it. Good luck with that. In the meantime, Trump has every right to rely on a 100 year old opinion which passed on the powers of President Woodrow Wilson to fire a postmaster general.

Your second point is nothing but anti-Trump twaddle. The Constitutional powers of the president do not change with your opinion of the current occupant.

[Voize of Reazon]

The Myers rule that the President has illimitable powers of removal was dicta repudiated nine years later in Humphrey's Executor. Seila Law is the latest on this topic from SCOTUS.

[Kazinski]

It was hardly repudiated, they said it didn't apply to the facts of Humprey's Executor:

"The office of a postmaster is so essentially unlike the office now involved that the decision in the Myers case cannot be accepted as controlling our decision here. A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an officer is merely one of the units in the executive department, and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. Putting aside dicta, which may be followed if sufficiently persuasive but which are not controlling, the necessary reach of the decision goes far enough to include all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department, and who exercises no part of the executive power vested by the Constitution in the President."

I'm not saying that is a whole hearted endorsement of Myers, but they make it clear its not being reversed. And the facts in this case are much closer to Myers than Humprey's.

Not to mention that Humphrey's Executor is much more likely to be on shaky ground with this court than Myers. It would be hard to argue that IG's exercise Legislative or Judicial power, they don't make administrative law, or wield judicial power to find guilt or impose punishment, they are much more akin to prosecutors or auditors that investigate and make allegations, which are undoubtedly executive functions.

In fact it wouldn't surprise me if if a strategic decision is made to at all costs keep this case away from SCOTUS.

[David Nieporent]

Humphrey's Executor is a case study in why people shouldn't interpret the constitution based on who's currently in charge. At the time, it was seen by Republicans as an important tool for helping to rein in FDR. Only later did Republicans decide that an imperial presidency was good, and independent agencies were bad, for them.

[Voize of Reazon]

Humphrey's Executor didn't overrule the holding in Myers, it rejected the dictum which was Taft's conclusion that

The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him.

That is, that the Constitution granted the President the power to fire any official who he appoints (except Article III judges), and Congress can't constrain him.

[Bored Lawyer]

Seila Law makes clear that Myers is still controlling, and Humphrey's Executor is the exception:

Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id., §3. Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010), we reiterated that, “as a general matter,” the Constitution gives the President “the authority to remove those who assist him in carrying out his duties,” id., at 513–514. “Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” Id., at 514.

The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U.S. 52 (1926). Our precedents have recognized only two exceptions to the President’s unrestricted removal power. In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), 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 United States v. Perkins, 116 U.S. 483 (1886), and Morrison v. Olson, 487 U.S. 654 (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.

https://supreme.justia.com/cases/federal/us/591/19-7/#tab-opinion-4267244

I suppose one could argue that an IG is an "inferior officer[] with narrowly defined duties." But I am dubious that would work.

[Noscitur a sociis]

Just a regular postmaster, I believe.

[Bored Lawyer]

"Myers, appellant's intestate, was, on July 21, 1917, appointed by the President, by and with the advice and consent of the Senate, to be a postmaster of the first class at Portland, Oregon, for a term of four years. "

Seems so. At the time they had three classes, and he was of the first.

[Bored Lawyer]

Some here have wondered who would have standing to challenge the firing. The fired IGs have standing. They can sue for wages, at least for a month, maybe more. That's what happened in Myers. Of course, Myers lost, so it's a fools errand, IMO.

[Kazinski]

They'll get their 15 minutes and a rousing dissent or two, and I doubt they will have to spend anything out of pocket.

[FivebySixThree]

Elections resulting in a new President should inherently start the clock for any existing government appointees whose jobs are subject to the President. The idea they have to keep any prior appointees once the new Administration takes office is ludicrous.

[jdgalt1]

Agree. If notice is required then give the winner the power to give it 30 days before inauguration day.