Almost immediately upon taking office for his second term, President Donald Trump unlawfully fired 17 inspectors general (IGs), and over the course of this year has taken actions to demote and replace at least three others, hindering these crucial officials’ efforts to serve as an important guardrail against government waste and corruption. In some cases President Trump has nominated replacements with questionable qualifications, overtly partisan backgrounds, or prior ties to the agency heads they would oversee. These actions effectively politicize and threaten IG independence and demonstrate a clear necessity for Congress to establish stronger protections to ensure that IGs are empowered to conduct government oversight free from interference, intimidation, and threat of retaliation. One way that Congress can do that is by moving the Offices of Inspector General (OIGs) into the legislative branch.
Inspectors General
OIGs, as established by the Inspector General Act of 1978 (IG Act), exist within departments and agencies of the Executive Branch. Although Congress gave the president the power to appoint and remove IGs, Senator Thomas Eagleton emphasized during a floor debate on the legislation that the “‘most important’ characteristic of the inspectors general” would be their independence.
For the nearly 50 years since, IGs have provided critical independent oversight that has improved the integrity of the United States government. Congress has used its oversight powers to highlight threats to IG independence and has repeatedly used its spending power to ensure agency cooperation with IG audits and investigations. For example, Congress successfully leveraged funding for the Department of Commerce General Counsel to compel the agency to provide the IG with access to records that it had threatened to withhold.
Still, the independence and protection of IGs has been an ongoing concern for Congress, motivating multiple legislative reforms intended to protect them from arbitrary removal. For instance, Congress passed the Inspector General Reform Act of 2008, which established a requirement that Congress be notified in writing no later than 30 days before the removal or transfer of an IG, and provisions of the Securing Inspector General Independence Act of 2022, which required the Executive to provide Congress with a detailed account of the justification for its removal of an IG and that the IG remain in place for 30 days while Congress considers that justification. Immediately after the first firings, Senators Grassley and Durbin wrote to Trump, noting that “Congress was not provided the legally required 30-day notice and case-specific reasons for removal, as required by law.” And in September, a district court found it “obvious” that Trump violated these laws when he fired IGs en masse in January, but stayed the case pending Supreme Court review and held that the court could not reinstate them.
Current Threats to IG Oversight and Independence
President Trump has cited his authority as president under Article II of the Constitution to justify numerous actions which appear to have effectively eroded the independence of IGs. During his first term in office, President Trump took at least 25 discrete actions encroaching on the independence of IGs, including firing two permanent IGs, removing three acting IGs without any clear justification, and asserting that he would prevent the Special Inspector General for Pandemic Recovery from communicating with Congress about administration misconduct and obstruction without “presidential supervision.” Trump’s actions at that time drew bipartisan criticism from Members of Congress.
In his second term, Trump’s actions to remove IGs and eviscerate their ability to conduct effective independent oversight are far more unabashed. Notably, in June, Trump removed and replaced the Department of Education’s Acting Inspector General, René L. Rocque, less than two weeks after she reported to Congress that her office had “experienced unreasonable denials and repeated delays” from administration officials in response to requests for “access to documents, staff, and information,” thereby preventing her office “from discharging [its] statutory mission.”
To justify this removal, President Trump wrote to Congress:
“I have determined that the changed priorities of my Administration (as compared to the previous one) will be better reflected with new leadership in this Office.”
Congress specifically designed IGs to not be tied to a particular administration because they are supposed to provide oversight and accountability regardless of political party or who currently occupies the Oval Office. The IG Act is explicit that IGs are to be appointed “without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, [and] financial analysis.” Contrary to President Trump’s assertions, IGs are not intended to reflect, or carry out, the policy priorities of the current administration. Their function is to conduct oversight and investigations with purposeful detachment from administration priorities and goals.
In his letter, President Trump cited the U.S. Supreme Court’s 2019 decision in Seila Law LLC v. Consumer Financial Protection Bureau arguing that the Constitution gives the president “the authority to remove those who assist him in carrying out his duties.” That case said that the president could remove the head of an agency – the Consumer Financial Protection Bureau (CFPB) – despite Congress legislating statutory protections stating that “the President may remove the Director only for ‘inefficiency, neglect of duty, or malfeasance in office.’”
Congress has considered proposals to restrict the president from removing IGs, except “for cause,” but the Supreme Court’s analyses in Seila Law along with a 2010 Supreme Court case, Free Enterprise Fund v. Public Company Accounting Oversight Board, present complex questions as to how Congress could effectively implement “for cause” removal protections for IGs across government. A May 22 Supreme Court order issuing a stay in Trump v. Wilcox effectively overruled the seminal 1935 case, Humphrey’s Executor v. United States, in which the Supreme Court recognized the ability of Congress to limit the removal of executive branch officials. Now, the Supreme Court seems poised to explicitly overrule that 90-year-old precedent. On September 22, the Supreme Court agreed to hear another case, Trump v. Slaughter, challenging Trump’s removal of a commissioner from the Federal Trade Commission. In the order granting an application for a stay and agreeing to hear that case, the Supreme Court directed the parties “to brief and argue the following questions: (1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled.”
Do IGs Belong in the Legislative Branch?
Regardless of one’s view of the Court’s embrace of the unitary executive theory in Seila Law, it is clear that there is a fundamental difference in the nature of the work that an agency head does compared to an IG. The IG’s responsibility to conduct oversight of Executive Branch departments and agencies and identify and report any waste, fraud or abuse within them appears to fit naturally alongside Congress’s investigative and oversight functions.
As the Supreme Court eloquently articulated in the 1927 case McGrain v. Daugherty:
A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change, and where the legislative body does not itself possess the requisite information-which not infrequently is true-recourse must be had to others who do possess it.
An essential function of the IG is to inform Congress of how the laws are being executed. As Republican Senator Chuck Grassley explained in Senate floor remarks in 2020 that more than 40 years after he voted in support of the 1978 Act establishing the OIGs: “IGs … help[] Congress watch over the people’s business and ensure the fidelity of agency actions…. In this way, these watchdogs serve an indispensable function in our system of checks and balances” between the Executive and Legislative branches.
Congress similarly serves an indispensable function as the body with the means to effect change and improvements and corrective action through legislation, including through laws making appropriations. It is for precisely that reason that the legislative branch already has, within it, bodies that perform an independent oversight and investigative function – the very same function IGs perform.
The GAO Example
Congress already possesses an oversight analogue. The Government Accountability Office (GAO) performs an oversight function similar and complementary to the mission and work of the IGs across government, and resides within the federal Legislative Branch. Congress created the GAO, originally named the General Accounting Office, in 1921 through the Budget and Accounting Act (BAA).
At the time Congress passed the BAA, it shared present day concerns regarding the Executive auditing itself. The BAA thus transferred the auditing function and responsibility from the then-Comptroller of the Treasury and Assistant Comptroller of the Treasury, originally housed within the Treasury Department, to the GAO, which was established as “independent of the executive departments and under the control and direction” (emphasis added) of a newly created position – the Comptroller General of the United States. As the Supreme Court explained in the 1986 case, Bowsher v. Synar, “Congress created the office [of the Comptroller General] because it believed that it ‘needed an officer, responsible to it alone, to check upon the application of public funds in accordance with appropriations.’”
In the early days of the GAO, it faced resistance from the administration. In the 1930s, there were several attempts to abolish the GAO, weaken it, or to encroach upon its independence. In 1932, President Hoover even attempted to dismantle the agency through Executive Order – a plan that Hoover’s own Budget Director advised against. A congressional committee found that “to interfere with work specifically given by law to an agency specifically created to function independent of the executive branch and on behalf of Congress… would defeat the very purpose of existing law, as it would break down the means of obtaining a uniform accounting system throughout the Government.” In 1971, former Comptroller General Elmer B. Staats wrote of GAO’s role:
Objective information about our national programs and their effects is almost the lifeblood of our national legislature if it is to remain an effective force in our national government and responsive to the needs of the people. [GAO], as an agent of the Congress and accountable only to it, is one of these sources of information.
In an effort to protect the GAO’s, and the Comptroller General’s independence and ability to serve as a nonpartisan oversight arm of Congress, the BAA provided that the Comptroller General would be appointed for a fifteen year term of office, and “not be eligible for reappointment,” ensuring they would serve across administrations and insulating them from partisan political concerns as well as the policy priorities of any particular president. Furthermore, the law provided that the Comptroller General could only be removed for cause “by joint resolution of Congress after notice and hearing,” thereby protecting GAO from the president encroaching on the agency’s independence.
Despite his earlier writings about the importance of the government oversight function, as president, Woodrow Wilson vetoed the first version of BAA that passed Congress because he believed he should be able to fire the Comptroller General, and argued that the BAA’s removal provisions may be unconstitutional. However, when Warren G. Harding later became president, he signed the BAA into law.
In 1980, Congress passed the General Accounting Office Act and established the process that exists today, whereby a commission consisting of congressional leaders recommend nominees to the president for a vacant Comptroller General position. But under this structure, and despite the more than 30 Legislative Branch office and agency heads with varying approaches to how they are appointed, the Comptroller General is ultimately appointed by the president. Perhaps Congress wanted to avoid a confrontation as to whether the law ran afoul the Appointments Clause of the Constitution. In his June 4, 1920 statement accompanying his veto of the BAA after its initial passage, President Wilson argued that “the Congress is without constitutional powers to limit the appointing power and its incident, the power of removal” and that the Appointments Clause, Section 2 of Article II of the Constitution, provides that “all officers whose appointments are not otherwise provided for, shall be appointed by the President, with the advice and consent of the Senate.” President Wilson wrote, “Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments.”
Under the Constitution, as interpreted by the courts, there are two types of officers – principal officers, which can only be appointed by the president with the Senate’s advice and consent, and inferior officers, whose “work is directed and supervised at some level.”
As explained by the Congressional Research Service (CRS), “Congress has periodically examined the procedures used to appoint these officers with the aim of protecting the prerogatives of, and ensuring accountability to, Congress within the framework of the advice and consent appointment process established in Article II, Section 2 of the Constitution.” Under that framework, Congress has some flexibility to prescribe, by statute, the method of appointment of inferior officers.
CRS has researched and analyzed the question of how IGs, as they currently serve under the law, fit within the appointments clause, and notes that “the unique functions and discretion provided to IGs under the IG Act do not appear to fit neatly into the typical Appointments Clause classifications, and as a result, whether IGs in fact exercise ‘significant authority’ is an open question that no court has addressed.” However, CRS notes that a U.S. District Court case in the District of Columbia, Jefferson v. Harris, “determined that Members of the Council of the Inspector General on Integrity and Efficiency’s Integrity Committee, which includes IGs, are not officers” of the United States.
Today, Congress and the American people again grapple with how to protect the auditing, oversight, and investigative work of the IGs across the federal government, while they are embedded within the Executive Branch. The solution may be for the current Congress to follow the example its predecessors set when creating the GAO, and passing legislation to move those IG offices into the Legislative Branch. Congress could consider creating a single coordinating agency to facilitate more effective and efficient systemization of oversight and investigations of Executive Branch activities, or allow GAO to play a coordinating role.
Practical Considerations for the IGs Placement
While moving IGs to the Legislative Branch appears to be a potentially viable solution for protecting their ability to expose corruption and government waste, there are practical benefits to their present placement in the Executive Branch. Most notably, operating within Executive Branch departments and agencies, IGs can have direct access to agency records and information as well have ready and direct access to the agency head under the IG Act. For example, IGs can directly access documents, files and information for audit and investigative purposes from agency cloud computing data systems without going through the back and forth of asking for records to be sent to investigators.
In a 1999 case, NASA v. FLRA, involving labor union representation, the Supreme Court analyzed the IG Act and explained the nature of the relationship between the IG and its respective department or agency. Specifically, the Supreme Court found that, as presently situated under the IG Act, an OIG employee is a “representative of the agency” in which they reside. However, the relationship between the OIG and the agency for which it conducts oversight is a product of the statute Congress passed and, thus, could be changed by Congress.
Continuing to consider GAO as an analog to the IGs, the Supreme Court, in Bowsher, examined the placement of the Comptroller General in the Legislative Branch, and the associated limitations of that office. The Court wrote that GAO “is ‘an instrumentality of the United States Government independent of the executive departments,’… [t]hus, because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers.”
As they stand now, IGs arguably perform some traditionally executive functions that may need to be reconsidered if they are to be moved within the Legislative Branch. For instance, many IGs have “law enforcement” powers, including seeking and executing search warrants, carrying firearms, and making arrests. GAO has none of those powers. It has no authority to make arrests, exact fines, or otherwise directly pursue criminal proceedings. Instead, GAO is, generally, limited to making and reporting findings to Congress, the president, or relevant agencies. If Congress were to consider moving IGs into the Legislative Branch, Congress may need to reenvision or reduce some IG functions along those lines.
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Practically speaking, the IG Act, including the various IGs’ placement and status, afford those officials significant opportunities and tools to conduct effective oversight. Those opportunities and potential efficiencies must be balanced against the opportunity and temptation for the president and administration officials to stifle, obstruct, or seek to control or redirect that oversight for partisan, policy, or even nefarious reasons.
IGs are key players in the fight against corruption. They expose fraud in government contracting, enforce anti-bribery laws, and refer illicit finance schemes for prosecution. A Senate Homeland Security and Government Affairs Committee (HSGAC) Minority Staff Report found that the IGs fired by President Trump had produced “a collective monetary impact of over $50 billion in fiscal year (FY) 2024 alone by identifying potential cost savings in federal programs… and achieving actual investigative recoveries…such as fines, settlements and restitution” and also identified as much as “$175 billion in potential savings that could be achieved if federal agencies implement the OIGs’ recommendations that remain open.”
Do the potential benefits of the IGs’ placement in the Executive Branch outweigh the costs? This is a question for Congress to consider, but the Trump administration’s sweeping attacks on federal oversight offices appears to weigh heavily toward congressional action to protect IG independence by moving those officials to the Legislative Branch. Protecting IGs is critical to continued transparency with regard to government programs, and vital to combatting waste, fraud, abuse, and corruption.
