Fight over Fired Inspectors General Is Fight over Foundations of the Administrative State

The move signals an overdue rebalancing of government.

Author’s note: This is the first of a two-part series on why President Trump’s firing of executive-agency inspectors general foreshadows a battle to restore constitutional norms — in particular, separation of powers and political accountability — that would threaten the administrative state as it exists after over a century of progressive governance.

L ast weekend, President Trump fired most of the inspectors general appointed to executive branch agencies. The purge intensified Monday when, according to the New York Times, former IG office staffers were directed to surrender to their agencies work laptops, phones, parking decals, and ID cards.

Some of this appears petty. That said, it is often the case with Trump that what is done for less than noble reasons is nevertheless the right thing. This move signals an overdue rebalancing of government. As Rich Lowry and I discussed on the podcast this week, it could be momentous.

Although the officials caught in the crossfire worked, at least nominally, in the executive branch, their pink slips implicate a constitutionally anomalous building block of the administrative state: the proposition that Congress, in defiance of separation of powers principles, is free not only to create hybrid positions and agencies, but also to impose legislative controls on the president’s power to remove executive officers at will.

The immediate flashpoint of this dispute is a claim by the fired IGs that the president violated the law in terminating them. (Yes, the plural is “inspectors general,” but for simplicity’s sake I will refer to them as “IGs.”) Their problem is that the law on which they rely is unconstitutional — an infirmity I believe Congress was cognizant of, which is why it provided no remedy for the “violation.”

First, some necessary background.

The 1970s were a turbulent time in which progressives reared on New Deal lore were ascendant in the Democratic Party. The Watergate scandal dramatically weakened President Richard M. Nixon, and his resignation — along with high inflation and an oil crisis attendant to the 1973 Yom Kippur War — resulted in huge majorities for Democrats in both houses after the 1974 midterms, and subsequently to the 1976 election of President Jimmy Carter, theretofore Georgia’s little known Democratic governor. Carter proved more than happy to sign off on congressional Democrats’ raids on the president’s constitutional powers.

The ne plus ultra of the American Founding had been liberty. Government was seen as a necessary evil that could preserve liberty only if effectively limited. The conceit of the Framers was that the separation of powers — in particular, the complete division of the power to make law from the power to enforce it — was more essential to the protection of liberty than any bill of rights could be.

For progressives, to the contrary, the central goal is to improve society as a whole (at least that’s the positive spin; my own view is that the goal is to empower progressives). They thus regard government as a necessary good, vital to coercing people in the direction of “progress” (as they see it in that moment), even if that means eroding individual liberty. Hence, like liberty itself, separation of powers is seen as a nuisance that impedes government’s capacity to marshal its resources in pursuit of the collective good.

Progressives eschew discrete branches checking each other while exercising their separate powers, as well as a system of laws made and executed, respectively, by political branches accountable to the people affected. They prefer governance by bureaucracies of theoretically non-partisan experts who should be insulated from political accountability because they are altruistically devoted to _____ [fill in the abstraction du jour: Science, the Rule of Law, Sustainable Growth, Equity, Good Governance, or, of course, Progress].

The Watergate era and its aftermath were not really a fair fight between these competing visions. FDR’s twelve years in power and the post–World War II international order drove the popular progressive wisdom that the Constitution as originally conceived was designed for a smaller, isolated nation in a less complicated world. The future belonged to professional government administrators, many educated in esteemed Schools of Government, who would staff agencies that simultaneously wielded legislative, executive, and judicial powers. Such quaint niceties as separation of powers would gradually wither away.

In pursuing this vision, the Democrat-dominated post-Watergate Congress shifted into high gear. With executive power in ill-repute, lawmakers enacted various bills aimed at extending congressional control over executive agencies and reducing the president’s authority to disturb these arrangements — in particular, the president’s authority to fire subordinate executive officers at will.

Included in this raft of innovation was the 1978 Inspector General Act (codified at Title 5, U.S. Code §§ 401 et seq., a chapter that has been amended a number of times over the years).

In essence, IGs are agents of Congress statutorily camouflaged as executive officers. Ostensibly, they are enforcement arms in the hierarchy of executive agencies; in reality, they are watchdogs for the Article I branch, who scour Article II operations to ferret out illegal or abusive practices, reporting back regularly to Congress. They thus embody the antithesis of the Framers’ theory that the president alone is vested with executive power, and that subordinate executive officers (a) are delegated to exercise only executive power and only as the president directs, and (b) are removable at will by the president — the only government officer (other than the vice president) accountable to voters throughout the country.

This tension between an IG’s function and the Constitution is brought into sharp relief by §403(b), which purports to control the procedure for removing an IG:

An Inspector General may be removed from office by the President. If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal. [Emphasis added.]

By this provision, congressional progressives endeavored to grant themselves checks on the president’s removal power — the president must provide prior notice of, and have “reasons” for, the removal or transfer of an IG, rather than be able to terminate or reassign the IG at will. Not surprisingly, then, the IGs just fired by President Trump are seizing on §403(b) to argue that their termination violates the law. But it is the statute, not Trump’s flouting of it, that is illegal. Statutes are trumped (pardon the pun) by the Constitution. Under the latter, the president need not consult with Congress to remove, much less transfer, a subordinate executive officer.

As I observed above, the Democrats who crafted the IG Act knew they were on thin constitutional ice. Notice that neither §403(b) nor other provisions of the IG Act provide a remedy for an IG who is fired by a president in the absence of an explanation and 30 days’ prior notice to Congress. That, I believe, is because Congress realized it had no authority to impose such requirements on the president.

Prescribing a remedy would have been provocative, potentially spurring a court challenge. (There was no court challenge, though President Reagan did fire all the IGs appointed by Carter.) Progressives were too smart to push for that in 1978. There was some support in the caselaw for statutory shackles on the president’s removal power but, as we shall see, it was tenuous. Democrats were thus content to sow into the IG Act this proposition that Congress could legitimately dictate the terms on which presidents ran executive agencies — especially the vital authority to remove subordinates. They calculated that most presidents would go along to avoid a fight with Congress (as presidents commonly do with statutes of dubious constitutionality), and that if, years later, a president (such as Trump) tried to mass-fire IGs, Democrats and the New York Times could caterwaul about how he was shredding a longstanding norm. In point of fact, this supposed norm is a constitutional anomaly.

If this seems like a trifling dispute between entitled bureaucrats and a president performing for his “drain the swamp” base, it’s not. Again, the sprawling administrative state is founded on the premise that Congress may ignore separation of powers and create a maze of government entities and actors that either are (a) independent of the chief executive even though they execute laws and regulations (e.g., the Environmental Protection Agency and the Federal Communications Commission), or (b) nominally within the executive branch but at least partially insulated from presidential control (e.g., IGs and Justice Department special counsels).

An essential building block for this edifice is the power to fire. More on that, and why it could be of tectonic consequence, in part 2.