Was It Legal for Trump to Fire Seventeen Inspectors General Without Notice?

Jack Goldsmith offers his analysis.

At the tail end of last week, President Trump fired seventeen inspectors general across a number of agencies (including some IGs that he himself had appointed during his first term). Of note, Trump did not provide Congress with the thirty-days notice that is required by federal law.

Some, such as the Washington Post's Ruth Marcus, believe this act was "blatantly illegal." Others, such as Harvard Law's Jack Goldsmith, are not so sure. Goldsmith offered a nuanced analysis for the Lawfare Blog that begins:

On Friday night, President Trump removed at least 17 inspectors general, the executive branch watchdogs who conduct audits and investigations of executive branch actions. The removals are probably lawful even though Trump defied a 2022 law that required congressional notice of the terminations, which Trump did not give. Trump probably acted lawfully, I think, because the notice requirement is probably unconstitutional.

The real bite in the 2022 law, however, comes in the limitations it places on Trump's power to replace the terminated IGs—limitations that I believe are constitutional. This aspect of the law will make it hard, but not impossible, for Trump to put loyalists atop the dozens of vacant IG offices around the executive branch. The ultimate fate of IG independence during Trump 2.0, however, depends less on legal protections than on whether Congress, which traditionally protects IGs, stands up for them now. Don't hold your breath.

That sounds about right to me. Here, as in many areas, the real question is whether Congress will defend its own prerogatives and power as a coordinate branch--and there is ample reason to doubt whether (m)any congressional Republicans have such fortitude.

In any event, Goldsmith's entire analysis is worth a read for those interested in the subject.

 

Comments

[David Nieporent]

The thing that struck me when I read Goldsmith's analysis, earlier, was: why do we think Trump would care about replacing them? IGs function to make sure their department/agency is honest; Trump doesn't care about that, so he would likely be perfectly fine without IGs at all.

[Dan Schiavetta]

Indeed, it's odd that the analysis misses the obvious reason for the firings.

[Josh R]

From Goldsmith:

The practical bottom line is that a career official high up in the office of each IG will by law become the acting IG, and Trump can replace that person only with someone already in the IG cadre.

[rloquitur]

https://oversight.house.gov/wp-content/uploads/2012/01/11-20-09-The-Firing-of-the-Inspector-General-for-The-Corporation-for-National-and-Community-Service.pdf

And your guy punished a guy for rooting out fraud. Go away,

[SRG2]

"Whatabout?"

[Krayt]

Take the next logical step, instead of imagining you're done.

Both sides misuse it because they're power mongers. Neither side should. Agitate for fixes.

[JoeFromtheBronx]

I would not be surprised if SCOTUS followed Goldsmith's analysis but it goes further than the current law* in place. Trump can remove. The notice and explanation requirement is a minor thing. The linked discussion of the law requiring it that he co-wrote says as such.

==

* The SCOTUS precedent is badly misguided but so it goes.

[Kazinski]

SCOTUS precedentS you mean.

You got Myers 1929, Seila law 2020, and then in Seila Roberts cites a few others:

"The First Congress’s recognition of the President’s removal power in 1789 “provides contemporaneous and weighty evidence of the Constitution’s meaning,” Bowsher, 478 U. S., at 723 (internal quotation marks omitted), and has long been the “settled and well understood construction of the Constitution,” Ex parte Hennen, 13 Pet. 230, 259 (1839)."

"These lesser officers must remain accountable to the President, whose authority they wield. As Madison explained, “[I]f any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Cong. 463 (1789). That power, in turn, generally includes the ability to remove executive officials, for it is “only the authority that can remove” such officials that they “must fear and, in the performance of [their] functions, obey.” Bowsher, 478 U. S., at 726 (internal quotation marks omitted)."

So besides the first Congress, you have Supreme Court decisions from 1839, 1929, 1986, and 2020, at least.

[JoeFromtheBronx]

Three justices including Brandeis and Holmes dissented in Myers & the history can very well be cited (as Kagan explains) to critique. The "first Congress" had by one cite four takes with Hamilton changing his mind in the process.

BTW, that's 1926. 272 US 52 (1926)

[mse326]

One of Congress's biggest failings has been putting people in the Executive to do it's job so that the President is the one in charge of it. There is no reason, as far as I can see, that the IGs needed to be made Executive officers, rather than Congressional officers attached to an Executive department to exercise the over sight role. There is no reason that that rule making has to be done by Executive agencies, rather than making a Congressional agency who has the experts that can draft and reccomend rules/laws for Congress to vote on.

The vast majority of issues come not from Congress failing to do it's job, but Congress literally giving the job to the President

[Kazinski]

We all know how that would work, lobbyists would write the regulations, and Congress would then enact them.

And that may well work out better than a captured idealogical bureaucracy writing the regs.

[Katall]

What would change? Lobbyists write the regulations, agencies adopt them. If Congress does it job, lobbyists will write the laws, Congress will pass them as acts, and the president will sign them into law. The only change will be regulatory capture in Article I institutions, rather than Article II.

[ducksalad]

That is the core of the problem. But it's compounded by the fact that it only takes 50%+1 members of Congress to give away power permanently, not only for themselves but for all future Congresses. It takes 2/3 of both houses to claw it back over the inevitable veto.

I don't believe we've ever had 2/3 of both houses controlled by a party opposed to the president, at least since the civil war era.

The only way I see to correct it would be a president so outstandingly awful that their party gets destroyed in the midterms. It would have to be like 70-30 popular vote due to voters being naturally self-gerrymandered. And it would have to be severely awful, voters are very tolerant of their own side once they've picked.

[Noscitur a sociis]

There is no reason, as far as I can see, that the IGs needed to be made Executive officers, rather than Congressional officers attached to an Executive department to exercise the over sight role.

As currently structured, the duties of the Inspectors General require them to wield the executive power of the United States, and to an extent that requires them to be officers of the United States. As such, they can’t be congressional employees.

There is no reason that that rule making has to be done by Executive agencies, rather than making a Congressional agency who has the experts that can draft and reccomend rules/laws for Congress to vote on.

The whole point is to allow the regulation to be effective without a separate congressional vote (and presidential review).

[ducksalad]

Serious question: what about the clause that says

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Could Congress delegate appointment (and presumably therefore firing) of IGs to judges, or are they not "inferior" enough?

People seem to be into defining by declaration these days. Couldn't Congress simply change the title to "Inspector Inferior"?

[Voize of Reazon]

IGs of Designated Federal Entities (DFEs) are appointed by the heads or boards of those Entities, not by the President.

[Noscitur a sociis]

Could Congress delegate appointment (and presumably therefore firing) of IGs to judges, or are they not "inferior" enough?

I don’t see why the appointment couldn’t be delegated that way. That clause certainly lets courts appoint executive branch officials as a general matter—for instance, they can under some circumstances appoint U.S. Attorneys.

Less well established is whether devolving the appointment power to a court conveys a removal power, and if so whether it is exclusive.

[Rossami]

Nosciture, what specific duties of an IG require executive power? Granted, my knowledge of US Army IG's is pretty dated and what I can find online of their current job descriptions is pretty limited but nothing is jumping off the page at me as something that constitutes executive power. What do you see that I'm missing?

[Noscitur a sociis]

The statue, 5 U.S.C. § 404, says

It shall be the duty and responsibility of each Inspector General, with respect to the establishment within which the Inspector General’s Office is established—

(1) to provide policy direction for and to conduct, supervise, and coordinate audits and investigations relating to the programs and operations of the establishment;
(2) to review existing and proposed legislation and regulations relating to programs and operations of the establishment and to make recommendations in the semiannual reports required by section 405(b) of this title concerning the impact of the legislation and regulations on the economy and efficiency in the administration of programs and operations administered or financed by the establishment, or the prevention and detection of fraud and abuse in the programs and operations;
(3) to recommend policies for, and to conduct, supervise, or coordinate other activities carried out or financed by, the establishment for the purpose of promoting economy and efficiency in the administration of, or preventing and detecting fraud and abuse in, its programs and operations;
(4) to recommend policies for the establishment, and to conduct, supervise, or coordinate relationships between the establishment and other Federal agencies, State and local governmental agencies, and nongovernmental entities, with respect to—

(A) all matters relating to the promotion of economy and efficiency in the administration of, or the prevention and detection of fraud and abuse in, programs and operations administered or financed by the establishment; or
(B) the identification and prosecution of participants in fraud or abuse referred to in subparagraph (A); and

(5) to keep the head of the establishment and Congress fully and currently informed, by means of the reports required by section 405 of this title and otherwise, concerning fraud and other serious problems, abuses, and deficiencies relating to the administration of programs and operations administered or financed by the establishment, to recommend corrective action concerning the problems, abuses, and deficiencies, and to report on the progress made in implementing the corrective action.

I don’t even really see an argument that 1, 3, and 4 aren’t executive functions.

[Rossami]

Let's go with just #1 because I'm not seeing your case even there.

Policy setting could be an executive function but it's limited here to policy about how to conduct the audits - in other words, how to run your own department. That's no more executive-branch than the rules on how to run a Senate vote.

Conducting investigations could be an executive function, especially if it's going to end in a prosecution but congressional investigations are also a thing so that's not automatically an executive function.

Conducting, supervising and coordinating audits - how is that automatically executive? Sorry, not trying to be dense but I'm not getting it yet. How is any of that different from the way you'd word the responsibilities of a congressional investigator/auditor?

[ReaderY]

I think the analysis ignores an obvious possibility. If the whole aim of the process is to leave the posts vacant, then difficulties in replacing them become features, not bugs.

[Commenter_XY]

🙂

Something will get worked out. Or Congress might just have POTUS Trump appoint the IGs and not object. Who knows what those new political Trump appointees in these agencies might do w/o an IG to peek at what they're doing. Pretty much whatever OBiden's people were doing. The shoe is on the other foot now.

The sense of urgency to resolve will be directly proportional to the degree of political chicanery and wrongdoing done in the past.

But I don't think anything overcomes Myers; it seemed open and shut to me.

DMN, not guilty, sm811, John F Carr, Nas or anyone else for that matter: Suppose I wish to overturn Myers at SCOTUS. What's the argument to overturn Myers? This SCOTUS will overturn precedent (e.g. Dobbs), on occasion.

[grb]

A couple of things already pointed out to you in the past:

1. You talked about "partisan" IGs before and "political chicanery and wrongdoing" now. But - as often the case with you - it's nothing but empty talk. You have no evidence or examples to support either claim.

2. Indeed, there's no thread that connects any of the IGs fired. Some were appointed by Trump. At least one is an ardent supporter of DJT. So it's not just you talking out of your hat; the evidence actually runs against you. Of course I sympathize. Whoring for Dear Leader can't be an easy task, particularly when it demands 24/7 attention to respond to each bungle or ethical violation.

Please consider the connecting link might be the position, not the person. After all, a person may be an appointee and/or fan of Trump's and still do the IG job ethically. That would infuriate Trump in general. Ethics and Trump never mix. And in certain positions of the government it might go well beyond general rage, driving him to desperation. My guess? That's what happened here.

[Commenter_XY]

Do you have an argument to overturn Myers?

[rloquitur]

remember Obama fired an IG who uncovered fraud on the part of a major donor to Obama, Kevin Johnson. Dems were ok then. F them now.

[JoeFromtheBronx]

Gerald Walpin is the person you are talking about. Obama explained why he was fired. For instance:

In a letter to the chairman and ranking member of the Senate Homeland Security and Governmental Affairs Committee, White House ethics chief Norman Eisen also noted that in the resulting review, Walpin's absence from Washington surfaced as well as evidence that the IG "had exhibited a lack of candor in providing material information to decision makers; and that he had engaged in other troubling and inappropriate conduct."

https://www.govexec.com/oversight/2009/06/ousted-ig-cited-for-behavior-absences-from-washington/29382/

Obama also provided notice.

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv1343-31

The idea that someone acted wrongly in the past if anything would suggest the value of careful checks in the present, including carefully providing a reason of why an inspector general is fired.

[Bob from Ohio]

"White House ethics chief Norman Eisen"

One of the kookiest anti-Trump "legal resistance" weirdos. Consistently wrong.

[SRG2]

Consistently wrong.

Your twin brother, perhaps.

[Sarcastr0]

So rloquitur left out a lot of important information, but you don't like one of the dudes who laid out the facts so it doesn't count.

[Flight-ER-Doc]

The Pendelton Act prohibits appointing civil servants for political reasons - so Trump need only appoint honest workers: Not shills for one side or the other.

Thats still a win for the USA.

[ReaderY]

And how much do you think you could get if you tried to sell the paper and ink the Pendleton Act is written on?

We are dealing with a man who has just threatened Denmark, a former ally formerly thought to have been protected by a formerly very legally binding treaty specifically intended to protect its territorial integrity, with war if it doesn’t cede us a province. This is a man to whom laws and their prohibitions don’t matter shit.

[ReaderY]

Given that the USDA Inspector General, who attempted to ignore the order, has just been escorted out by security guards, the sheer ponderousness of the courts works to Trump’s advantage.

[shg]

While I don't find Jack Goldsmith's argument particularly compelling, the suggestion that if one can muster a non-frivolous argument for unconstitutionality somehow relieves a president from complying with extant law is shocking.

Maybe Goldsmith is right. Maybe not. That's why they build courthouses.

[Michael Ejercito]

I have read Ortiz v. United States, 585 U.S. _ (2018), and I conclude that Article I judges, and their support staff, may be the exception to the unitary executive principle, and that judges and support staff of territorial courts, D.C. municipal courts, the U.S. Court of Appeals for the Armed Forces, and members of courts-martial are definitely within the exception.

This is due to their exercise of judicial power.

Inspectors general do not exercise judicial power at all.