By Noah Feldman / Bloomberg Opinion
President Donald Trump’s firing of 18 inspectors general explicitly violates a law passed by Congress to protect these anti-corruption watchdogs from removal by a corrupt president. Believe it or not, though, that’s not the most worrisome thing about Trump’s actions.
The Trump administration wants the firings challenged to get the Supreme Court to hold that the president can fire anyone within the executive branch, stripping civil servants of protections fundamentally designed to fight patronage and graft. Scarier still, the court might conceivably do this.
Let’s start with the role of the inspector general. Spread across many federal agencies, each runs an office with a mandate from Congress to fight fraud, embezzlement, waste and mismanagement. The modern IG offices are products of the good government reforms of the 1970s, responses to the post-Watergate realization that corruption ran deeper in the federal government than many in the public had previously assumed.
Firing IGs isn’t unprecedented. Ronald Reagan fired 16, rehiring five after congressional criticism. Barack Obama fired one, explaining his actions to Congress after complaints. In his first term, Trump fired four, two permanent and two acting.
But in 2022, in a brief moment of Democratic efforts to shore up anticorruption efforts in the government, Congress amended the 1978 Inspector General Act to require a president who wants to fire an inspector general to notify Congress 30 days in advance and give a “substantive rationale, including detailed and case-specific reasons” for the removal.
The statute’s language couldn’t be clearer, and Trump’s action violates it, as pointed out in a letter to the White House by the chair of the Council of the Inspectors General on Integrity and Efficiency, who himself is an IG fired by Trump. Nor could the purpose of the statute, which protects the independence of the inspectors general.
The Trump administration could have given notices to Congress and provided reasons for the firings. The fact that it didn’t do so means Trump’s team wants to see their action challenged in court, where they will then argue that the law is unconstitutional. Republican Sen. Tom Cotton of Arkansas previewed that defense on Fox News Sunday, asserting that “Time and time again, the Supreme Court has said that Congress can’t impose restrictions on the president’s power to remove officers.”
That statement isn’t precisely accurate. The truth is that the constitutional law surrounding Congress’ power to insulate executive officials from the president’s power to remove them is complicated and in flux.
When it comes to so-called “inferior officers,” positions hired not by the president directly but by the head of an agency, Congress has the authority to impose restrictions on firing so long as the employee has (per the Supreme Court) “limited duties and no policymaking or administrative authority.” That’s why civil service protections are constitutional.
The inspectors general are probably inferior officers rather than principal officers appointed directly by the president. (Although even that isn’t open and shut.)
My Harvard Law School colleague Jack Goldsmith thinks that the IGs, as inferior officers, can be fired by the president at will since they are supposed to “provide policy direction” for audits and investigations. Based on this, he thinks it’s unconstitutional for Congress to require 30 days’ notice and reasons for firings.
I’m not quite as sure. First, as Goldsmith acknowledges, the IGs don’t determine policy beyond their own audits and investigations. If “policy” means simply discretion to set priorities within your job and office, many federal employees would count as policymakers.
The Trump administration wants that to be legally the case; it’s in the background of Trump’s executive order seeking to circumvent civil service protections, known as Schedule F. However, that executive order still must be interpreted by the courts.
Second, it isn’t obvious to me that Congress requiring notice and reason-giving is the same thing as requiring the employees only to be fired for good cause; the Supreme Court’s jurisprudence focuses on executive removal. In principle, the president could fire the IGs for any reason he wanted and provide Congress the “substantive rationale” for that thinking.
If the 30-day notice and reasons law is struck down, it will help the administration’s efforts to undermine civil service protections.
Therefore, the overall direction of the IG firings matches that of Schedule F. Trump wants us to go back as far as possible to the bad old days when the entire executive branch could be hired and fired at the president’s will. Corruption and graft were prevalent in that environment, and federal employment meant absolute fealty to the president. Therefore, the legal rules that are supposed to protect us from that situation are not mere technicalities. They are part and parcel of modern good government.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”
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