On Tuesday, the House passed a law to protect the independence of inspectors general (IG) that would limit the president’s ability to remove them without “cause.” A representative voting against the bill objected that the list of grounds for dismissal permitted by law “would have the effect of preventing a president from dismissing a GI who acts in bad faith.” It’s important to assess this argument in the context of another news item on Tuesday: the IG’s resignation from the Federal Finance Housing Agency (FHFA), after an investigation that found it had “abused its authority.” and prompted two senators to demand President BidenJoe BidenBiden emphasizes unity in his July 4 remarks: “America is coming together” Governor of Oregon: Heat wave toll is “absolutely unacceptable” Army braces for change radical in the reform of justice MORE fire her. The resignation of the FHFA IG made these requests moot. But the application of House law to the FHFA IG case demonstrates that the fear of unduly restricting the president’s authority is unfounded – the law would allow the president to fire a watchdog when liability warrants such action.
Advocates of protection against expulsion sought to prevent future presidential abuses of power after President TrumpDonald TrumpFive Things to Know About Trump Organization Indictment Allen West Announces Main GOP Challenge in Abbott, TX Company Behind Keystone XL Claims B for US Damages MOREthe retaliatory dismissal of GIs for the legitimate exercise of their supervisory functions. This included the layoffs of the IG for the intelligence community which reported information that triggered the first impeachment investigation of Trump and the IG for the State Department which was then investigating the Secretary of State. Mike PompeoMike PompeoHouse Passes Bill To Boost Federal Watchdog Authority After Trump, Biden Seeks To Restore U.S. Relations With The Holy See Cotton Goes To Iowa To Launch “Veterans To Victory” Program MORE. Historically, IG removals have been rare, but President Trump has defied those standards. There was no law prohibiting his blatant attacks on GIs; the president can currently withdraw a GI for any reason after prior notification to Congress.
As a result, the legislation, called the IG Independence and Empowerment Act, aims to restore and codify the normative commitment to independent oversight by ensuring a certain degree of freedom from politically motivated interference or reprisals. It does so by establishing both substantive requirements and procedural safeguards to ensure that the removal of a GI has an appropriate basis and sufficient justification. If such protection had existed during President Trump’s tenure, his blatant dismissals would have violated the law. Conversely, in the case of the FHFA IG, the misconduct identified during the investigation process resulted in a termination.
The Integrity Committee of the Council of Inspectors General on Integrity and Efficiency (CIGIE), which independently reviews allegations of wrongdoing by the IG, has determined that Laura Wertheimer, the FHFA IG, has created “A culture of witness intimidation” by “ridiculing, demeaning and personally intimidating her” for making legal disclosures and obstructing the investigation by withholding requested information. The committee concluded that Wertheimer “did not appreciate the basic principles of leadership and oversight reasonably expected of a federal inspector general” and recommended “consideration of substantial disciplinary action, up to and including dismissal”.
The law requires documentation of one of nine reasons identified to justify dismissal for wrongdoing or ineffective performance, including “neglect of duty”, “knowing violation of the law” and “abuse of power”. The latter is precisely the conclusion of the Integrity Committee regarding Wertheimer. The FHFA IG’s abuse of power, documented by the committee, supports the conclusion that his dismissal would have been based on just cause. More generally, the range of revocable offenses in the law gives the president the flexibility to ensure the accountability of watchdogs, while the committee’s investigation provides an impartial mechanism to justify misconduct that may warrant disciplinary action.
While the Act balances independence and accountability as a matter of policy, protection from removal can still be a constitutional challenge. The Supreme Court rulings in each of the last two terms invalidated the protection against removal of the directors of the Consumer Financial Protection Bureau and the FHFA. A majority of the court in those cases ruled that Congress could not restrict the president’s authority because presidential accountability required the ability to exercise control through the power of impeachment. Yet the Court also recognized earlier precedents supporting removal protection for junior officers who do not exercise policy-making authority. IGs fall into the category of officers that Congress can constitutionally protect from dismissal without cause because they rely on the president and agency heads to make judgments about accountability. While GIs do not have direct enforcement powers to compel action on their report findings and recommended reforms, the president and agency heads have control and responsibility for acting on them. IG monitoring results for government improvement. It is the power to control decisions about how to respond to oversight, rather than dismissal, that enables the executive to exercise control and promote accountability.
Protection against revocation for cause ensures that GIs are able to exercise independent oversight without retaliation, while retaining the option of revocation when a GI deviation from integrity and performance standards is established and documented. It is now up to the Senate to adopt this necessary protection for independence and the reasonable accountability mechanism.
Andrew Brunsden is an adjunct professor of law at New York School of Law and a government lawyer. He has an article on Inspectors General to appear in the William & Mary Bill of Rights Journal.