Politics How to protect inspectors general

01:40  29 september  2020
01:40  29 september  2020 Source:   thehill.com

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The modern inspector general dates to 1978, when Congress gave many inspectors general extraordinary internal investigative powers, required them to be confirmed by A better mechanism for protecting the independence of inspectors general would focus on how a president can fill vacancies.

Inspectors general who aren’t up to snuff can still face consequences. After all, government is less accountable if bad IGs are allowed to stay in office. It’s really this simple: If inspectors general are doing good work, they should stay; if not, they should go. If the president is going to remove an

Last week, House Democrats introduced the Protect Our Democracy Act, which offers a package of reforms to "prevent future presidential abuses" as a blueprint to repair President Trump's damage to democratic institutions. Among the proposals is job protection for inspectors general, who have independent oversight of federal agencies and whose key function is to prevent Executive Branch fraud, waste, and abuse.

a large tall tower with a clock at the top of a building: How to protect inspectors general © Greg Nash How to protect inspectors general

The new Act would prevent IGs' termination without "good cause," shielding them from abuses of Presidential power. Recently though, the Supreme Court has blocked Congress's efforts to institute checks on the President's removal authority. To secure the future of independent oversight, Congress must frame this critical protection in a way that will withstand any legal challenge.

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In April and May 2020, United States President Donald Trump dismissed the inspectors general (IGs) of five cabinet departments in the space of six weeks. The inspectors general removed were Michael K. Atkinson, Intelligence, on April 3; Glenn Fine (acting), Defense, April 7; Christi Grimm (acting)

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IGs, whose watchdog role emerged during the Watergate era, are increasingly vulnerable to political attacks by President Trump. Current law permits the President to remove an IG for any reason with advance notice to Congress. Past presidents generally refrained from removal based on norms against political interference with IGs' scrutiny of government operations. President Trump brazenly defied these norms this spring when he fired two IGs, along with three acting IG replacements, in retaliation for their legitimate exercise of oversight responsibilities.

In April, he terminated Michael Atkinson, the IG for the intelligence community, who properly determined that the anonymous whistleblower complaint about President Trump and Ukraine should be reported to Congress. In May, at the request of Secretary Mike Pompeo, he removed Steve Linick, the IG for the State Department, who was investigating Pompeo for misuse of government resources and an expedited $8 billion arms sale to Saudi Arabia. A bipartisan group of Senators wrote to tell the president that "Congress intended that [IGs] only be removed when there is clear evidence of wrongdoing or failure to perform the duties of the office, and not for reasons unrelated to their performance, to preserve independence." Their message was ignored.

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For more information about how to make a protected disclosure, how to file a retaliation complaint, and what to expect if you have filed a retaliation complaint The Inspector General Act requires the SSA OIG to designate an individual to serve as the OIG’s Whistleblower Protection Coordinator.

The new legislation provides critical reinforcement for IG independence and would have prevented Atkinson and Linick's firings. Yet, the question of whether IG "good cause" protection would withstand judicial review by the current, and soon to change, membership of the Supreme Court is highly uncertain. A majority of the Supreme Court has already endorsed a broad presidential removal power in line with the unitary executive theory of the Constitution.

This past June, in Selia Law versus Consumer Financial Protection Bureau, the 5-4 majority invalidated good cause protection for the agency's director as unconstitutional. The majority explained that all "executive power" resides in the president, and that the removal limit enacted by Congress was incompatible with the separation of powers.

However, the majority retained two exceptions, based on prior cases, when Congress may be able to limit the President's removal powers: (1) multimember commissions with "quasi-legislative" or "quasi-judicial" functions and (2) "inferior officers" with limited duties and authority. Though IGs do not meet the former exception because they are not part of a commission, a strong argument exists that IGs satisfy the latter because they are nonpartisan appointees lacking policymaking authority, make advisory findings and recommendations to agencies, and operate, to some extent, under "the general supervision" of the agency head.

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Inspectors General are prohibited from disclosing an employee's identity without the employee's consent unless the IG determines that disclosure is unavoidable or is compelled by a court order. If you file a disclosure with OSC, your identity will not be shared outside OSC without your consent.

Under the Inspector General Act of 1978, as amended, OIG is authorized to carry out Through its investigative and audit findings and recommendations, OIG helps protect and strengthen Departmental programs and operations. Q: What matters does OIG investigate and how do they originate?

Congress must proceed with this context in mind. If lawmakers simply amend the law without corresponding changes to the IG institutional structure, they may find good cause protection exposed to the legal challenge based on Selia Law and the Supreme Court's potential further weakening of removal limits.

To strengthen constitutional grounding for the protection, Congress should consider making IGs (1) an independent commission; (2) court-appointed officers; or (3) agency head appointees. Each of these alternatives adjust the IG institutional framework to more closely situate the removal limit within the Supreme Court's stated exceptions. Notably, the Council of Inspectors General on Integrity and Efficiency, a coordinating body for IGs in the executive branch, offers a framework for creation of an IG commission.

These new structures are reasonable, albeit imperfect, responses to presidential abuse and the Court's departure from a longstanding constitutional principle identified by the Selia Law dissent - "Congress could protect from at-will removal the officials it deemed to need some independence from political pressures," as long as limits did not impede the president's execution of duties.

What remains unknown is whether Americans will elect a president and Congress committed to laws that will protect our democratic institutions and norms, including IG independence, against future threats. It is essential that we have leaders who will act to preserve one of our country's most fundamental safeguards against presidential abuse of power.

Andrew Brunsden is an adjunct professor for New York Law School and an attorney with government oversight background. These views are his own.

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