The Constitution Vindicates Trump’s Firing Of Inspectors General

When President Donald Trump fired 17 inspectors general at the end of his first week in office, he exercised executive power that the Constitution vests in him alone. His opponents squawked predictably, and legal challenges to the firings are inevitable, but the Trump administration no doubt welcomes those challenges. It should, because they are challenges the president is likely to win, and for the sake of our republic, it is essential that he does.

Inspectors general, like so many other well-intentioned but bad ideas, originated in the Carter administration. The idea sounded good enough: stop government mismanagement and waste by creating an inspector general in each of 12 major agencies, charged with ferreting out government fraud and abuse. The inspectors general would be appointed by the president, with the advice and consent of the Senate, and they would have the authority to operate independently from their agency heads while reporting legal violations directly to the attorney general. 

The first problem, however, is that the inspectors general did not turn out to be very good at accomplishing their intended purpose. The so-called “watchdogs” of the federal government missed everything from the National Security Agency’s unlawful bulk domestic phone records collection program to Operation Fast and Furious’ illegal arms sales to Mexican cartels. Yet despite having too little to show for their efforts, the sounds-good idea of an inspector general proved irresistible, and over time, inspectors general proliferated throughout the federal government. In 2008, Congress even created a new agency just to coordinate the IGs (who numbered more than 70 by that time). 

The second problem is that in 2022 Congress tried to enforce the “independence” of the inspectors general by making them independent from the president himself — and there, the Constitution draws the line. Congress purported to require the president to provide notice to Congress 30 days before firing an inspector general and to provide “the substantive rationale, including detailed and case-specific reasons” for the firing in the notice. President Trump did not do this, but that is because he did not have to.

Requiring notice and a rationale — which is essentially a requirement that the firing be for some cause — goes beyond Congress’s power under the Constitution, and so President Trump could not actually be required to do it.

Executive Power Belongs to the President

The Supreme Court recently revisited similar issues related to the president’s removal authority in Seila Law v CFPB. That decision goes a long way toward holding that the president has the authority to fire anyone in the executive branch for any reason (save the vice president, who is himself elected to a four-year term), because “[u]nder our Constitution, the ‘executive Power’  — all of it — is ‘vested in a President.’”

As the Supreme Court forcefully stated: “The entire ‘executive Power’ belongs to the President alone.” Every other member of the executive branch wields the president’s power, and so must be accountable to him. Accountability requires the power to remove. Without it, the president cannot control who wields his own executive power and how.

Of course, Seila Law is not without its exceptions, but those exceptions do not protect inspectors general from the president’s removal power.  

Morrison Doesn’t Apply

In Seila Law, the Supreme Court declined to revisit an important removal-power precedent called Morrison v. Olson, which upheld good-cause tenure protection for an independent counsel. If the court did revisit Morrison today, it seems likely the case would come out the other way. But even if the Morrison holding remains an exception to Seila Law, it is not an exception that encompasses inspectors general.

The Morrison exception applies to “inferior officer[s] under the Appointments Clause,” who have “limited jurisdiction and tenure” and “lack … policymaking or significant administrative authority.” The inspectors general that Trump fired meet none of these standards. 

They are not inferior officers, as evidenced by Congress’s requirement that they be appointed by the president with the Senate’s advice and consent. That view is further supported by their “independent” nature. An inferior officer necessarily reports to a superior officer, but the inspectors general are intentionally empowered to operate beyond the control of the agency head who would otherwise control them. 

The inspectors general also enjoy jurisdiction that is intentionally not limited but is instead extremely broad, including anything that occurs at whichever major cabinet agency an individual inspector general polices. The special counsel in Morrison had a discrete mission, but the inspector general’s is not similar. The inspectors general are empowered to investigate whatever they want, whenever they want, and are not subject to an agency head’s control over where they choose to target their efforts.

And lastly, the inspectors general explicitly engage in policymaking. The statute creating these roles assigns them the duty to “provide policy direction” for audits and investigations and to “recommend policies” in other areas, such as preventing government fraud and abuse.

President Trump acted within the authority vested in him by the Constitution when he fired the 17 inspectors general. Our Constitution does not permit Congress to create alcoves of un-removability among executive branch officials, no matter how laudable its stated goal may appear. 

That is a good thing. So-called “independent” agencies and officers, like these inspectors general, are not independent but unaccountable — they do not answer to voters. The Founders knew that was a problem and created our Constitution’s structure to prevent it. President Trump has acted within that structure to exercise removal authority that is rightfully his, and when his actions get their final day in court, he — and our Constitution — will be vindicated. 

Theo Wold serves as the director of the Claremont Institute’s Administrative State Project. Wold is the former solicitor general of Idaho. Previously, Wold served as the acting assistant attorney general in the Office of Legal Policy at the Department of Justice and as deputy assistant to the president for domestic policy under President Donald Trump. Wold clerked at the U.S. Court of Appeals for the District of Columbia Circuit for Judge Janice Rogers Brown and the U.S. District Court for the District of Puerto Rico for Judge José Antonio Fusté.