Inspectors General and the Law of Oversight Independence

Abstract

President Trump’s defiance of basic norms threatened the oversight institutions of American democracy. His brazen assault on the prosecutorial and investigative independence of federal law enforcement was well documented and criticized. Yet few have thoroughly scrutinized his violations of the oversight independence of internal institutions that monitor the government to promote integrity, transparency, and accountability. This Article examines the independence of Inspectors General (IGs), the internal watchdogs of the Executive Branch, and the President’s attacks on the institution. President Trump breached longstanding independence norms when he fired or replaced IGs in retaliation for their legitimate exercise of oversight duties. Then, in some cases, he named political appointees as acting IGs, despite clear conflicts of interest. This Article analyzes the constitutionality and policy implications of recent congressional proposals that seek to reinforce IG independence and prevent future abuses of power by codifying norms into law: specifically, proposals to limit the President’s appointment and removal authority, including statutory removal for cause protection and restrictions on acting appointments. Recently, in Selia Law v. Consumer Financial Protection Bureau, the Supreme Court narrowed the grounds for congressional removal protection. However, this Article argues that a constitutional basis exists in the Court’s reframed doctrine for Congress to enact IG removal protection, primarily because the President and agency heads remain ultimately accountable for acting upon IGs’ investigative findings and recommendations. The Article also considers structural changes to the IG institution – a multimember commission, court-appointed officers, or agency appointees – as alternative forms of protection and then applies removal protection to particular cases to evaluate whether it supplies the proper balance between IG independence and accountability. The Article then explains the validity of proposed restrictions on acting IG appointments and offers additional policy recommendations to enhance statutory qualifications for permanent IG appointments. In the case of the IG institution, the law of oversight independence reveals the interplay between internal constraints on executive power, the external separation of powers, and the dynamics of presidential accountability in the design and protection of oversight institutions.

Keywords: oversight, inspector general, independence, accountability, separation of powers, removal, abuse of power, norms