The Constitutionality of For-Cause Removal Protections for Inspectors General.

• Author: Spitzer, Ari

INTRODUCTION

Inspector General ("IG"/"IGs") independence from presidential control has been the subject of heightened attention since former President Donald Trump removed the Intelligence Community's and State Department's IGs in the spring of 2020. (1) Since then, the House of Representatives has passed the Inspector General Protection Act (2) and proposed the Protecting Our Democracy Act ("PODA"), (3) both of which aim to protect IGs from presidential control by amending the Inspector General Act ("IG Act") to add for-cause removal protection for IGs. This Note analyzes the constitutionality of provisions providing IGs for-cause removal protection.

This Note argues that such provisions are unconstitutional. Under the Supreme Court's presidential removal power doctrine, whether Congress may restrict the president from firing a class of executive branch officials depends on whether those officials are best classified as "employees," "inferior officers," or "principal officers" of the United States. It also depends on the scope of the officials' authority and character of their office. This Note concludes that IGs are officers of the United States and not mere employees, IGs are inferior officers and not principal officers, and that IGs' duties are sufficiently broad such that Congress cannot constitutionally insulate them from the President's removal power.

Part I provides historical context surrounding the IG Act and the executive branch's longstanding constitutional concerns. Part II provides an overview of Supreme Court jurisprudence covering for-cause removal provisions and lays out the modern framework. Finally, Part III analyzes the office of the IG under the modern framework. A conclusion follows.

1. THE IG ACT

   1. IG Act and Proposed Amendments

      The Inspector General Act of 1978 (4) reorganized the executive branch by creating IG offices within several agencies. The Act was intended to create "independent and objective units" to conduct investigations and audits; provide leadership, coordination, and policy recommendations; and keep agency heads and Congress "fully and currently informed about problems and deficiencies" within the agencies. (5)

      The IG Act created two types of IGs. (6) The first is an "establishment" (7) IG who operates from within most executive agencies. (8) The second is a "designated federal entity" (9) IG ("DFE IG"), operating within certain other federal entities, such as the Securities and Exchange Commission, and appointed by the head of the DFE. (10)

      The President appoints establishment IGs with the advice and consent of the Senate. (11) In terms of agency hierarchy, IGs "report to and ... [are] under the general supervision" of their respective agency heads. (12) However, agency heads do not have the power to "prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation." (13) As for the President's power to remove an IG, [section] 3(b) of the IG Act stipulates that: "[a]n Inspector General may be removed from office by the President. The President shall communicate the reasons for any such removal to both Houses of Congress[.]" (14) Agency heads can remove DFE IGs pursuant to [section] 8G(e)(2), which uses similar language as [section] 3(b) regarding communication to Congress. (15)

      Congress has proposed amendments to both aforementioned sections of the IG Act. PODA [section][section] 702-703 seek to limit the President's power to remove an IG and, similarly, protect DFE IGs from being removed by agency heads. The bill would restrict the grounds under which the president may remove IGs. Those specific grounds include criminal activity, neglect of duty, inefficiency, or permanent incapacity. PODA also requires the president to "communicate the substantive rationale, including detailed and case-specific reasons" for removal, backed up by documentation of the grounds cited. (16) PODA's for-cause removal restrictions apply to both establishment IGs and DFE IGs. This Note seeks to resolve whether the aforementioned for-cause protections are constitutional. (17)

   2. History of Executive Branch Opposition

      Since the passage of the 1978 IG Act, both Democratic and Republican presidential administrations have objected to the Act's constraints on the president's power to remove IGs. For example, during President Jimmy Carter's administration, an opinion by the Office of Legal Counsel (18) objected to the requirement that the president notify the House and Senate of the reasons for removal, referring to such a requirement as "an improper restriction on the President's exclusive power to remove Presidentially appointed executive officers." (19) When signing a different bill that included a similar requirement, President George H.W. Bush wrote that "its obvious effect is to burden" the exercise of a president's constitutional removal authority. (20) President Barack Obama, when removing an IG, communicated to Congress merely that he "'no longer' had 'the fullest confidence' in" the IG, and argued that a requirement that he provide any more "reason" would be unconstitutional. (21) The D.C. Circuit accepted President Obama's position. (22) President Donald Trump referenced all these precedents when he removed two IGs in 2020, citing a lack of confidence. (23) The foregoing suggests that the executive branch has held a decades-long position that the IG Act, even in its current form, unconstitutionally restricts or conditions the president's removal power.

2. HISTORY OF FOR-CAUSE REMOVAL RESTRICTIONS FROM MYERS TO TODAY

   Nearly a century ago, the Supreme Court held in Myers v. United States (24) that the president's executive power under Article II of the Constitution included "the power of appointment and removal of executive officers." (25) As a result, President Woodrow Wilson was empowered, without further Senate approval, to direct the Postmaster General to remove a Senate-confirmed postmaster. (26)

   The Supreme Court subsequently narrowed Myers' broad holding in Humphrey's Executor v. United States. (27) After President Franklin Roosevelt tried to remove a member of the Federal Trade Commission, the Court held that the president's removal power was not unlimited and that Congress could include for-cause removal protection for executive officers in "quasi-legislative or quasi-judicial agencies[.]" (28) The Court distinguished the office of postmaster in Myers, which included "no duty at all related to either the legislative or judicial power," with an "administrative body," such as the FTC, "created by Congress to carry into effect legislative policies[.]" (29)

   In Wiener v. United States, (30) the Court continued to apply the restrictive view of presidential removal power articulated in Humphrey's Executor. In Wiener, President Dwight Eisenhower sought to replace members of a commission that adjudicated war claims from World War II. Even though there was no statutory removal restriction, the Court held that a president did not have the constitutional power to remove members of a quasi-judicial body "merely because he wanted his own appointees...." (31)

   Decades later, in Morrison v. Olson, (32) the Supreme Court upheld statutory for-cause protections for the position of Independent Counsel ("IC")--an inferior officer charged with conducting investigations of and legal proceedings against government officials. (33) The Court discarded the Humphrey's Executor analysis of executive functions versus quasi-judicial or quasi-legislative functions. (34) Instead, the Court considered a balance of the importance of protecting the "necessary independence of the office" in question (35) with the importance of protecting "the President's ability to perform his constitutional duty[.]" (36) Looking to the details of the IC's characterization as an "inferior officer," and its function, such as its "limited jurisdiction and tenure and lacking policymaking or significant administrative authority[,]" (37) the Court concluded that for-cause protection struck an appropriate balance. (38)

   The Supreme Court has drifted back towards the Myers standard of unrestricted presidential removal authority in recent years.

   In Free Enterprise Fund v. Public Company Accounting Oversight Board, (39) the Court invalidated a statute whereby members...