Challenges to the Independence of Inspectors General in Robust Congressional Oversight

Challenges to the Independence of Inspectors

General in Robust Congressional Oversight

FERNANDO R. LAGUARDA*

ABSTRACT

Congressional oversight of the Executive is among the chief responsibilities

of the legislative branch. Inspectors General (“IGs”) are among the most im-

portant tools available to Congress because they are “hard-wired” into the

Executive itself. The value of IGs to Congress depends on their expertise in the

workings of their host agencies and their “independence” from those agencies.

But “independence” is not a statutorily defined term. As the agencies, and

sometimes Congress itself, expand the role of IGs to engage in activities that

parallel the regulatory programs of their host agencies, IG independence is

compromised and the value IGs provide to Congress can be undermined. This

article seeks to further a project of scholarship on IGs focusing on the statutory

framework within which they operate and the conflicting imperatives that affect

their work.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

I. THE INSPECTOR GENERAL AS AN ARM OF CONGRESSIONAL

OVERSIGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

A. Statutory Creation and Relation to Congress . . . . . . . . . . . . . 219

B. Core Functions and Relevance to Congress . . . . . . . . . . . . . . 226

C. Inspector General Independence . . . . . . . . . . . . . . . . . . . . . . 229

II. PARALLEL ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235

A. Defining Parallel Enforcement. . . . . . . . . . . . . . . . . . . . . . . . 235

B. Parallel Enforcement by Inspectors General Is Pervasive

across the Federal Government . . . . . . . . . . . . . . . . . . . . . . . 240

1. Health & Human Services. . . . . . . . . . . . . . . . . . . . . . . 240

* A.B., Harvard College, J.D., Georgetown University Law Center. Thanks to Laura Bonomini and

Shannon Roddy for research assistance and to Elise Bean, Jeff Elkin, Amanda Frost, Liz Hempowicz,

Tom Krattenmaker, Jeff Lubbers, Sandy Parness, and Bob Westbrooks for helpful comments. Special

thanks to Daphna Renan and Michael Herz for feedback on this work in progress at the AALS New

Voices in Administrative Law and Legislation program, January 2021. All errors are mine alone.

© 2021, Fernando R. Laguarda.

211

2. Social Security Administration . . . . . . . . . . . . . . . . . . . 243

3. Department of Transportation . . . . . . . . . . . . . . . . . . . . 245

4. Department of Agriculture . . . . . . . . . . . . . . . . . . . . . . 246

5. Department of Veterans Affairs . . . . . . . . . . . . . . . . . . 247

6. Environmental Protection Agency. . . . . . . . . . . . . . . . . 248

7. United States Postal Service . . . . . . . . . . . . . . . . . . . . . 249

8. Federal Communications Commission . . . . . . . . . . . . . 251

9. State Department . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252

10. Internal Revenue Service . . . . . . . . . . . . . . . . . . . . . . . 253

C. The Problem with Parallel Enforcement. . . . . . . . . . . . . . . . . 254

D. What IGs Might Say. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

III. POTENTIAL SOLUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262

“Are you my Inspector General? When I was Governor of Pennsylvania, I

had an Inspector General, but he wasn’t out there like you, constantly

criticizing and embarrassing us.”

1

The Department of Transportation (“DOT”) Office of Inspector General

(“OIG”) website lists enforcement priorities in order of importance.

2

“[E]nhanc

[ing] DOT’s transportation safety goals by investigating crimes where death or

serious bodily injury has or is likely to occur”

3

is at the top of the list. According

to the website, OIG’s investigations of rule violations—and the prosecutions that

result—“complement the regulatory enforcement programs of DOT’s Operating

Administrations.”

4

There is no doubt that the DOT OIG’s activities “complement[ing DOT’s]

enforcement programs” are important. But there is also no reason they should be

undertaken by an Inspector General (“IG”), rather than by the agency itself or by

1. CHARLES A. JOHNSON ET AL., IBM CENTER FOR BUS. & GOV’T, BALANCING INDEPENDENCE AND

POSITIVE ENGAGEMENT: HOW INSPECTORS GENERAL WORK WITH AGENCIES AND CONGRESS 26 (2015)

(quoting CLARK KENT ERVIN, OPEN TARGET: WHERE AMERICA IS VULNERABLE TO ATTACK 39 (2006))

[hereinafter HOW INSPECTORS GENERAL WORK].

2. U.S. DEP’T OF TRANSP.: OFF. OF INSPECTOR GEN., OIG INVESTIGATIVE PRIORITIES, https://www.

oig.dot.gov/investigations/oig-investigative-priorities [https://perma.cc/JL55-PH2B].

3. Id.

4. Id. Additional examples of “parallel enforcement” are described in more detail infra. note 211 et

seq. Sec. II.B.

212 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:211

the Department of Justice. The core mission of the IG is to assist Congress with

its constitutional oversight role.

5

Additional activities, even worthwhile and nec-

essary ones, raise serious questions about IG independence and interfere with this

important institution’s core purpose. For an OIG to do its work effectively and as

Congress intended, it must retain its independence—which is threatened by “reg-

ulatory enforcement” activities.

INTRODUCTION

The Constitution is silent about Congressional oversight, but it is among the

chief responsibilities of the legislative branch.

6

Inspectors General are among

Congress’ most important tools for overseeing government because IGs are hard-

wired into the Executive Branch.

7

They are the “eyes and ears”

8

of the public

inside federal agencies. After more than forty years, they have deep relationships

(or the capacity to form deep relationships) with their congressional committees

of jurisdiction and deep expertise in the workings of their host agencies.

IGs are a unique institution within the Executive Branch, so there is no single

lens through which to study them. IGs are not featured in Administrative Law

casebooks,

9

and research into their work tends to focus on their history or man-

agement role,

10

rather than on their unique function as an arm of Congressional

oversight with all the attendant complexities.

11

This article furthers a project of

5. See infra Sec. I.

6. See Trump v. Mazars, 140 S.Ct. 2019, 2031 (2020) (“Congress has no enumerated constitutional

power to conduct investigations . . . but we have held that each House has power ‘to secure needed

information’ in order to legislate.”) (internal citations omitted). The “power of inquiry—with process to

enforce it—is an essential and appropriate auxiliary to the legislative function.” Id. Without information,

“Congress would be shooting in the dark, unable to legislate ‘wisely or effectively.’” Id.

7. See 166 CONG. REC. S3,88–89 (daily ed. June 18, 2020) (prepared remarks of Sen. Grassley)

(Congress “cannot perform [its] constitutional mandate of oversight without [IGs]”) [hereinafter

statement of Sen. Grassley].

8. 161 CONG. REC. 20,168 (2015) (statement of Sen. Johnson, Chairman, S. Comm. on Homeland

Sec. & Governmental Aff.) [hereinafter Sen. Johnson statement].

9. See generally MICHAEL ASIMOW & RONALD M. LEVIN, STATE AND FEDERAL ADMINISTRATIVE

LAW (5th ed. 2020) (no references to IGs in table of contents or index); STEPHEN G. BREYER ET AL.,

ADMINISTRATIVE LAW AND REGULATORY POLICY: PROBLEMS, TEXT, AND CASES (8th ed. 2017) (no

references to IGs in table of contents); RONALD A. CASS ET AL., ADMINISTRATIVE LAW: CASES AND

MATERIALS (8th ed. 2020) (no references to IGs in teacher’s manual); JERRY L. MASHAW ET AL.,

ADMINISTRATIVE LAW, THE AMERICAN PUBLIC LAW SYSTEM, CASES AND MATERIALS (8th ed. 2020) (no

references to IGs in table of contents; briefly discussed at pp.140–41); ANDREW F. POPPER ET AL.,

ADMINISTRATIVE LAW: A CONTEMPORARY APPROACH (3d ed. 2016) (no references to IGs in table of

contents or index); JOHN M. ROGERS ET AL., ADMINISTRATIVE LAW (4th ed. 2020) (no references to IGs

in table of contents or teacher’s manual); BERNARD SCHWARTZ ET AL., ADMINISTRATIVE LAW: A

CASEBOOK (9th ed. 2018) (no references to IGs in teacher’s manual).

10. See infra note 21. Earlier literature on Inspectors General is cited in William Fields, The Enigma

of Bureaucratic Accountability, 43 Cath. U. L. Rev. 505 (1994) (reviewing Paul C. Light, MONITORING

GOVERNMENT: INSPECTORS GENERAL AND THE SEARCH FOR ACCOUNTABILITY (1993) [hereinafter

MONITORING GOVERNMENT]).

11. One exception is “The Role of Inspectors General in Congressional Oversight,” conference

sponsored by the Levin Center at Wayne Law (June 13, 2018), available at https://law.wayne.edu/levin-

center/conferences#definition-76226 (last visited August 28, 2020) (Inspectors General are “absolutely

2021] CHALLENGES TO THE INDEPENDENCE OF INSPECTORS GENERAL 213