Inspector General Reform in the NDAA

The National Defense Authorization Act, which President Biden signed into law today, contains important reforms to protect inspectors general from opportunistic removal and replacement by the president. This appears to be the first statutory reform to address a problem with executive branch accountability that became salient during Donald Trump’s presidency.

Background

Inspectors general are semi-independent executive branch watchdogs who conduct audits and investigations of executive branch actions and who have special reporting obligations to Congress. Once legally controversial, inspectors general today are an established institution that even former critic (and former attorney general) William Barr has acknowledged serve a “critical function in the government” that can bring “critical transparency and accountability” to the executive branch. As we once wrote, inspectors general “have effectively investigated controversial executive branch actions, clearly and fairly reported what happened, identified wrongdoing and exonerated those wrongly accused, made recommendations about how to improve the performance of the executive branch, and reported these matters to Congress and the public.” The Office of the Inspector General (OIG) of the Department of Justice, for example, has issued a number of very consequential reports in the past two decades. To get a sense of the range of inspector general reports, look at the Justice Department OIG’s web page.

Inspectors general are not flawless, of course. And they serve in the executive branch that is headed by the president, in whom Article II of the Constitution vests “the executive Power,” and who might have good reason to terminate an inspector general—for malfeasance or incompetence, for example. Prior to the new law, Section 3(b) of the Inspector General Act, 5 U.S.C. § 3(b), required the president to communicate to Congress within 30 days before removal the “reasons” for the removal. This reporting requirement proved to be the lowest of bars. When President Obama fired the inspector general for the Corporation for National and Community Service in 2009, the only reason he gave in his letter to Congress was that he lacked “the fullest confidence” in the inspector general.

President Trump similarly offered a lack of full confidence as the reason for terminating inspectors general. And more frequently than prior presidents, he manipulated vacancies and related laws to fire or dismiss disliked inspectors general and replace them, pursuant to the Federal Vacancies Reform Act of 1998 (FVRA), with a more like-minded or pliant official. Trump did this when he fired State Department Inspector General Steve Linick, who was investigating Secretary of State Mike Pompeo, and replaced him with Vice President Michael Pence ally Ambassador Stephen Akard; and when he removed acting Transportation Department Inspector General Mitch Behm, who was investigating Secretary Elaine Chao, and replaced him with Howard Elliott, who at the time was head of the Pipeline and Hazardous Materials Safety Administration. In at least two episodes, Trump fired a confirmed inspector general effective in 30 days, as the law required, but then placed both officials on administrative leave in the interim so that he could appoint an acting inspector general immediately. And in several episodes, Trump also removed acting inspectors general without any need to provide Congress with advance notice.

Reform bills were proposed to address some of these problems by limiting the grounds on which presidents could remove inspectors general. As one of us argued, this approach was likely to be unconstitutional and in any event ineffective. A better approach, as we argued in “After Trump” and elsewhere, is to slow down the presidential firing process and limit the president’s options on replacing the vacant inspector general office. (On the constitutionality of the vacancies approach, see here.)

The NDAA Reforms

The NDAA provisions on inspector general reform begin with Section 5201 and run 71 pages. They cover many topics related to inspectors general, but the main reforms related to the presidential issues discussed above fall into four baskets. (What follows is a simplification of a complex law that seeks to capture the essence of the reforms.)

First, the new law amends Section 3(b) of the Inspector General Act to require the president to notify Congress 30 days prior to removal of an inspector general not just with “reasons,” as before, but with the “substantive rationale, including detailed and case-specific reasons” for removal. This provision does not restrict the grounds on which the president can remove but, rather, requires the president to explain in more detail the reasons for removal. This reform by itself should have little if any impact on the removal of inspectors general.  But it could give Congress more information about the removal that would better enable Congress to examine and respond to the removal as it wishes (especially when combined with related adjustments in the new law).

Second, the new law deals with the “administrative leave” gambit for circumventing the 30-day notice. It requires the president, with some exceptions, to communicate in writing to Congress 15 days before changing the inspector general to “non-duty status” (that is, administrative leave) and to supply the “substantive rationale, including detailed and case-specific reasons” for the change in status. It also provides that a president may not place an inspector general on “non-duty status” during the 30 days prior to removal unless the president determines that (and explains to Congress why) the inspector general poses a workplace threat. These (and related) procedural and substantive restrictions should go a long way toward stopping the president from circumventing the 30-day notice requirement on removal via administrative leave.

Third, and most importantly, the new law narrows the president’s options under the FVRA for replacing an inspector general who “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” The new law specifies that a newly defined “first assistant” to the inspector general will fill the vacant inspector general office unless the president directs any “officer or employee” of any office of inspector general, at the GS-15 level or higher, who was in office for more than 90 days before the vacancy (or who is already an inspector general), to perform in an acting capacity. This last provision might seem to allow the president to put a crony in an inspector general office 90 days before firing the inspector general and then appoint the crony in an acting capacity. However, the president cannot easily do this. Everyone in an executive branch inspector general office, other than the inspector general, is a career Title 5 employee and would need to be in the office via a nonpolitical hiring process. The new law thus operates as a deterrent to opportunistic presidential firings of inspectors general by making it very hard for the president to replace the fired inspector general with an ally.

Fourth, the new law specifies that a president who fails to nominate an inspector general within 210 days after a vacancy occurs, or a nomination fails, must explain to Congress the reasons for the delay and provide a target date for making a formal nomination.

Conclusion

The inspector general reforms in the NDAA go a long way toward preventing the mischief and opportunism that President Trump engaged in with respect to firing and replacing inspectors general. Congress and the members of the executive branch who worked on the issue deserve much credit for taking on this problem. So too does the Biden administration for supporting this obscure but important restraint on executive power.