In a span of less than two months, President Donald Trump removed or replaced multiple inspectors general (“IGs”)—statutorily authorized watchdogs within federal agencies. On May 4, 2020, The New York Times editorial board described President Trump’s actions as “the latest in a series of direct attacks on statutory oversight of his administration.” The head of a special interest group focused on government transparency described the president’s moves against inspectors general as “anti-democratic” because these officials “provide appropriate oversight and accountability for abuses and speak truth to power.” A bipartisan letter to President Trump stated that “Congress created inspectors general to combat waste, fraud, and abuse, and to be independent watchdogs holding federal agencies accountable to the taxpayer.” Elizabeth Wydra, a seasoned constitutional litigator who has represented congressional members in constitutional challenges against President Trump, in referring to both inspectors general and congressional committees, described oversight as follows:

Oversight is what keeps your tax dollars from being wasted or corruptly diverted in a national war effort, or flushed past $14,000 toilet seats and plunged with $436 hammers. Oversight forces mendacious tobacco company executives to stand in front of the cameras and take an oath to tell the truth, and be held accountable when they lie brazenly to the American people in promising their products aren’t addictive. Oversight pushes into the full light of day a president’s crimes against the Constitution, written for all time on the pages of history for every succeeding generation to see. Simply put, Congress cannot be Congress if it cannot vigorously conduct oversight of the executive branch and the tax dollars it spends.

Congressional oversight encompasses the president, the bureaucracy, and regulated parties within its scope. Oversight means taxpayers (and legislative appropriators) have a right to know how their money is being spent.

The force of these arguments depends upon the assumption that there are certain legal responsibilities of the executive branch that Congress may examine and which the president cannot exempt from inspection. If the president were the sole organ of all executive branch functions, then oversight would face myriad constitutional roadblocks. If oversight is seen as a constitutional right, then any strong unitary executive theory is debilitated in practice. This tension is not abstract. In response to President Trump’s inspector-general firings, Senator Jon Tester stated, “[f]or the president to stand up and say, ‘If I didn’t appoint this IG, he’s gone or she’s gone. If I don’t like what they’re saying, I’m going to stop them from saying it’—that does not smack of an elected democracy. . . . It smacks of a different kind of government.” Implicit in this criticism is the notion that the president lacks absolute discretion or control when it comes to inspectors general. Senate Majority Leader Mitch McConnell presented the counterargument: “[The president] has the full authority to hire and fire, under the Constitution, anybody in the executive branch.”

The lines between a constitutional responsibility and a statutory one, between bureaucratic offices and political ones, and between discretionary decisions and mandatory ones are foundational to contemporary issues in government oversight. Without a legal framework setting forth these aforesaid distinctions, congressional oversight could not take place. So, where did this framework originate? It began with the Supreme Court’s 1838 decision in Kendall v. United States ex rel. Stokes. This Essay summarizes the Kendall decision and extends its analysis to the recent removals and replacements of Inspectors General (“IGs”). I use Kendall to argue two points: first, the president may remove Senate-confirmed IGs who act in an ultra vires manner given the IG Act’s clear limitations on their authority; and second, the fact that Congress fails to police the instances in which agency watchdogs explicitly violate statutorily enumerated duties supports the role of the president in using his power to remove IGs as consistent with good government.

I. Kendall’s Disruption of the Unitary Executive Theory and Its Relevance Today

In Kendall v. U.S. ex rel. Stokes, the Supreme Court distinguished the political responsibilities of the president under the Constitution from the “ministerial” responsibilities of executive officers under the law. Kendall has been relied upon in support of the theory of a strong executive. Justice Smith Thompson’s opinion made clear that “[t]he executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power.” Yet in Kendall, for the first time, the Supreme Court established clear limitations on the president’s control over his own executive department. Because the president’s appointees have ministerial duties, Congress has deemed it permissible to examine the executive branch’s compliance with those duties. From this principle, congressional oversight of executive branch departments and officers, statutory mandates on the president and his appointees, judicial review of federal expenditures in the Court of Federal Claims, and the creation of agencies and offices “independent” from presidential control have all been defended as consistent with the constitutional notion of separation of powers. This ministerial-political divide in modern administration means that Congress can limit political discretion in the executive branch.

A. The Facts in Kendall

In the 1830s, William B. Stokes and his partners (“petitioners”), owners of a carrier and coach company, entered into contracts with Postmaster General William T. Barry to transport United States mail in the mid-Atlantic. In 1835, Postmaster General Barry died and Amos Kendall was appointed as his replacement. Kendall, concerned about cronyism in the Post Office, ordered the credits and allowances to petitioners to be withdrawn. The petitioners believed that Kendall’s refusal to pay the contract terms “exceeded his authority” and submitted a request to the Committee of Claims in the Congress for payment. Congress passed and President Jackson signed a relief act directing the solicitor of treasury to settle and adjust the claims of Stokes and his partners. Solicitor of Treasury Virgil Maxcy notified Postmaster General Amos Kendall on November 12, 1836 of his decision to award the claims as referred to him. And on November 23, 1836, Maxcy notified Kendall of his decision to award additional claims by petitioners. These decisions were finalized in November 1836 orders directing the postmaster general to pay $162,727.05.

But Postmaster General Kendall paid only $122,101.46. Petitioners wrote to President Jackson requesting that he personally ensure the enforcement of the congressional relief act. President Jackson forwarded the request to Postmaster General Kendall, who provided the president with an explanation for his refusal to comply with the award. The solicitor of treasury, upon being told by the postmaster general that any direction by the solicitor over the postmaster would be beyond his authority, submitted the question to the attorney general who confirmed that Maxcy’s construction of the statute was correct.

In December 1836, President Jackson forwarded Kendall’s reply to Stokes, writing:

It appearing that there is a difference of opinion between the solicitor and the postmaster general, upon the extent of the reference under the law to the solicitor, the postmaster general having yielded to what he believes to be all that was submitted by the law to the solicitor’s decision, and paid the same. But, congress being now in session, and the best expounder of the intent and meaning of their own law, I think it right and proper, under existing circumstances, to refer it to that body for their decision. I deem this course proper, as the difference in opinion about the extent of the submission, under the law, arises between the head of the post office department and the solicitor of the treasury; and, as it appears, the solicitor has reversed, in part, his decision and award.

Petitioners accordingly pressed their argument (with President Jackson’s letter) to Congress, which referred the matter to the Senate Judiciary Committee. The historical record reflects that the Committee sought information from Postmaster General Kendall and publicly reported its findings. The Committee issued a January 20, 1837 report stating, “congress intended the award of the solicitor to be final” and the committee issued a resolution expressing this intent and ordering the postmaster general to award the amount specified by the solicitor of treasury. On May 26, 1837, Stokes filed a writ of mandamus seeking the circuit court to direct Amos Kendall to grant the award. Kendall answered that the judiciary department lacks “authority to control the executive department in the exercise of its functions, of whatsoever character.” On July 13, 1837, the circuit court ordered a preemptory mandamus and the postmaster general sought relief from the Supreme Court.

B. The Kendall Decision

The questions presented in Kendall were whether mandamus was a proper source of relief and whether the lower court had jurisdiction to grant such relief. The Court did not examine the dispute as one between Congress and the executive branch but instead as one between an individual and an executive officer. It is easy enough to argue that Congress was the real party in interest and that the appropriate remedy was political, not legal. Certainly President Jackson could have ordered his postmaster general to pay petitioners or remove the postmaster general for noncompliance. Alternatively, President Jackson could have taken the position that the relief act was unconstitutional on grounds it vested control over a principal officer (the postmaster general) in an officer other than the president (the solicitor of treasury). While the president would have faced a fight with Congress in refusing to enforce the relief act, it would have protected presidential power and, in evading judicial review, ultimately forced Congress to decide whether to impeach the postmaster general.

President Jackson faced two difficulties in defending such a position: First, signing the relief act into law was strong evidence of his consent to its constitutionality, and second, he referred the questions of its validity back to Congress through the Senate Judiciary Committee. Despite these concessions, President Jackson could have sought to substitute himself instead of Postmaster General Kendall in the suit. Because President Jackson did not directly intervene in the question of the relief act’s enforcement nor, upon suit, argue that his postmaster general could not be imbued with law enforcement powers outside presidential supervision, he practically gave away the case and conceded that Congress could create executive officers and duties outside presidential control. It also forced the Kendall Court to resolve the matter in legal terms; for example, “[t]he real parties to the dispute were, therefore, the relators and the United States.”

1. Executive functions: Ministerial versus political.

In Kendall, Postmaster General Kendall argued that the judiciary had no power to force an executive officer to perform an official duty. The Supreme Court disagreed, holding, “[t]he mandamus does not seek to direct or control the postmaster general in the discharge of any official duty, partaking in any respect of an executive character; but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control.” In clarifying its distinction between the executive branch’s administrative responsibilities as separate from its constitutional ones, the Kendall Court’s decision eviscerated any purist notion of a unitary executive: “[t]he executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that every officer in every branch of that department is under the exclusive direction of the President.” The Supreme Court, eighty-eight years later in Myers v. United States (similarly arising from the then-Court of Claims (successor to the Committee on Claims) and relating to the postmaster general), quoted James Madison, who disputed the Kendall Court’s understanding of the Constitution. For Madison, “the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.”

2.   Congress may dictate how the executive branch enforces ministerial acts.

The Kendall Court created the principle that while Congress could not deplete the president’s constitutional authority, it could create additional responsibilities of the executive department that are separate from presidential authority. As stated by the Kendall Court:

[I]t would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character.

Here, the Court opened the door for Congress to delegate its powers to the Executive without ceding congressional control in addition to authorizing executive officers who were politically insulated from the president.  Despite the Myers Court’s limited consideration of the president’s removal power, its implicit disagreement with the principles espoused in Kendall is stark:

The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone. Laws are often passed with specific provision for the adoption of regulations by a department or bureau head to make the law workable and effective. The ability and judgment manifested by the official thus empowered, as well as his energy and stimulation of his subordinates, are subjects which the President must consider and supervise in his administrative control. Finding such officers to be negligent and inefficient, the President should have the power to remove them.

For the Kendall Court, failure to execute a “matter resting entirely in the discretion of congress” is tantamount to an attempt to “control congress.” The Kendall Court affirmed that the president does not have the right to direct and control the execution of all laws imposed upon his department. The Court equated such a right as “vesting in the President a dispensing power” and “would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice.” As such, the implication is that it is Congress which may control the executive branch in ministerial matters. That conclusion is necessary to the legitimacy of congressional oversight.

This is also the sense in which Kendall created the presumption that statutes creating non-discretionary duties implied judicial enforcement rights:

It cannot be denied but that congress had the power to command that act to be done; and the power to enforce the performance of the act must rest somewhere, or it will present a case which has often been said to involve a monstrous absurdity in a well organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist. And if the remedy cannot be applied by the circuit court of this district, it exists nowhere.

Justice Roger Taney’s dissent was even stronger in reflecting Congress’s unbridled authority over statutorily-authorized offices and officers: “[W]herever congress creates such an office as that of postmaster general, by law, it may unquestionably, by law, limit its powers, and regulate its proceedings; and may subject it to any supervision or control, executive or judicial, which the wisdom of the legislature may deem right.”[1]

The Kendall Court recognized mandamus as a right for an individual citizen to enforce a legislative command against an executive officer.[2] And yet, as briefed by Kendall before the Court, there were remedies under the statute other than judicial cognizance of an implied private right, namely “an application to congress; removal of the postmaster general from office; and an action against him for damages.” The Kendall Court simply glossed over the political or common law remedies by finding them to have either “been tried and failed” or to conclude that political, i.e. constitutional remedies, like impeachment, are “not the remedies spoken of in the law which will supersede the right of resorting to a mandamus.” Quite literally, the Court found that the supposed common law right of mandamus superseded constitutional remedies.

II. Bridging “Good Government” with “Political Control”

The Kendall decision has obvious implications for congressional oversight. By creating a distinction between the president’s constitutional responsibilities and the ministerial responsibilities Congress mandates upon the executive branch, the Supreme Court authorized the modern distinction between law enforcement and regulatory administration within the executive branch. Constitutional scholars characterize oversight in terms of “congressional oversight of administration” and political scientists similarly describe oversight as “[c]ongressional control of the bureaucracy.” In practice, this means the non-discretionary requirements of executive branch officers and employees are fair game for congressional inspection.

While scholars ultimately locate congressional control over ministerial duties in the appropriations power—described as “a constitutionally mandated check on executive power”—Kendall does not distinguish between congressional checks on nonpolitical officers as opposed to political ones. Instead, it rests its line of demarcation on political versus statutorily required responsibilities, which means that even the president and his political staff can be regulated when Congress assigns them certain responsibilities. This legal conclusion governs the contemporary tension between the president and the inspectors general.

III. The Argument for the President’s Duty to Remove Inspectors General Investigating Discretionary Actions

The congressional scrutiny engendered by both President Trump’s recent firings and the perception that firing an IG bucks congressional oversight lends credibility to the idea that Congress views itself as the principal and the IGs as their agents. In this sense, inspectors general are simply a delegated form of congressional oversight. The recent removals or replacements of actual or acting inspectors general were premised on the president’s need for “the fullest confidence” in them. According to President Trump’s opponents in Congress, Intelligence Community Inspector General Michael Atkinson was fired because of his instrumental role in bringing the Ukraine whistleblower’s complaint to congressional attention. Defense Deputy Inspector General Glenn Fine was replaced on the pandemic response committee due to concerns about “bias.” Health and Human Services Acting Inspector General Christi Grimm was replaced due to her issuing a report critical of U.S. hospitals’ preparedness for the coronavirus pandemic. State Department Inspector General Steve Linick was removed because he was allegedly investigating Secretary of State Pompeo for misusing federal funds or his sidestepping Congress in an arms deal with Saudi Arabia, and President Trump acquiesced to a request from Pompeo. Acting Transportation Inspector General Michael Behm was removed because he was investigating allegations that Secretary of Transportation Elaine Chao had given preferential treatment to Kentucky’s infrastructure grant applications.

Of course, those of these IGs serving in an acting position did so without any presidential say in the matter, as a result of the Federal Vacancy Reform Act’s appointment of the career second-in-command as the acting inspector general whenever a vacancy occurs. For Senate-confirmed Inspectors General Linick and Atkinson, the apparent reason for their removal was that they chose to look beyond administrative responsibilities by an agency head over programs and operations but into the constitutionally-delegated decisions of the president and one of his Cabinet Secretaries. I argue that this is precisely the sort of activity that should justify the removal of IGs. It represents an IG making a discretionary decision to police constitutional activities instead of engaging in mandated audits of waste, fraud and abuse of taxpayer dollars.

A. Inspectors General Are Limited to Investigating Non-Political Activities

The norm of congressional control over ministerial duties established under Kendall provides the relevant framework for evaluating the scope of inspector-general authority. The plain text of the Inspector General Act states that the purpose is three-fold:

(1) to conduct and supervise audits and investigations relating to the programs and operations [ ]

(2) to provide leadership and coordination and recommend policies for activities designed (A) to promote economy, efficiency, and effectiveness in the administration of, and (B) to prevent and detect fraud and abuse in, such programs and operations; and

(3) to provide a means for keeping the head of the establishment and the Congress fully and currently informed about problems and deficiencies relating to the administration of such programs and operations and the necessity for and progress of corrective action.

As these purposes make clear, IGs work for the agency head in examining programs and operations—the core of nondiscretionary, nonpolitical administration. This point is furthered by the president’s appointment of Inspectors General who “shall report to and be under the general supervision of the head of the establishment involved.” The enumerated duties of IGs are limited to audits and investigations relating to “programs and operations” and the IG Act specifically recognizes that “no Inspector General” “determines policies to be pursued by the United States in the nationwide administration of Federal laws.”

This latter statement references the Hatch Act’s exemption for political activity by presidentially appointed and Senate confirmed officers. In other words, even though IGs are presidentially appointed and Senate confirmed and therefore allowed to engage in political activity on grounds that the president has “general administrative control of those executing the laws,” Congress, in not specifically exempting IGs from political activity restrictions, also made clear that IGs are not law enforcement officers nor tasked with discretion in administering statutes. In support of this theory is the fact that only the president (and not the Merit Systems Protection Board) can punish those of his appointees found in violation of the Hatch Act. If an inspector general investigates the political activities of those under the president’s supervision, he or she is engaging in precisely the form of discretionary activity that may warrant presidential punishment, including removal.

B. Recent Rule of Law Threats from Ultra Vires Oversight by Inspectors General

On September 30, 2019, the Office of the Intelligence Community Inspector General (ICIG) issued a press release addressing criticisms that the ICIG processed and reviewed a second-hand whistleblower complaint inconsistent with its public interpretation of the Intelligence Community Whistleblower Protection Act. At the time the whistleblower complaint was received, it was policy of the ICIG to interpret the Whistleblower Protection Act’s requirement that information be “credible” to mean that the information be “first-hand information”. “[S]econd-hand knowledge of wrongdoing” was insufficient under the policy.  ICIG Atkinson, recognizing the whistleblower complaint was based upon second-hand information, ignored his own policy and stated, “there is no such requirement set forth in the statute.”

The ICIG’s decision to accept a second-hand complaint as a basis for elevation to the Director of National Intelligence violated the previously published policy (and form) limiting information for elevation to first-hand accounts. This is a clear violation of the Freedom of Information Act’s (FOIA) requirement that “substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency” must be published in the Federal Register. This same FOIA principle was referenced in an executive order aimed at promoting due process in agency enforcement practices. Not only did ICIG Atkinson violate a statute, his actions were inconsistent with an executive order interpreting that same statute. That the ICIG acted arbitrarily and capriciously and in violation of law is an appropriate justification for presidential removal.[3] President Trump’s contempt for the ICIG arises from the potential harm resulting to the president (impeachment) from the ICIG’s discretionary activities. The relevant section of FOIA, deriving from the original Administrative Procedure Act’s requirement that “interpretations of general applicability” are published in the Federal Register, specifically states, “[e]xcept to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner . . .  be adversely affected by, a matter required to be published in the Federal Register and not so published.” The president ameliorating a procedural violation finds justification in the laws of government accountability.

That the ICIG changed public policy without publicly disclosing the information prior to the change is a specifically enumerated basis for the Office of Special Counsel to begin an investigation under jurisdiction of the Hatch Act. The special counsel “shall . . . conduct an investigation of any allegation concerning [ ] arbitrary or capricious withholding of information prohibited under section 552.” The special counsel’s routine failure to meet the statutory requirements to conduct such investigations has never received the attention of Congress. Nor did Congress inquire whether the ICIG violated the Administrative Procedure Act or FOIA. In this context, Congress has not used its oversight power to check those federal officers who serve a delegated oversight function. At such, the job of checking the watchdogs falls to the president. Presidential removal of officers who choose to serve as prosecutors of political officials rather than agents rooting out waste, fraud and abuse within government spending programs is entirely justified on good government grounds.

Consider another Trump administration–era example of ultra vires conduct by an inspector general. Inspectors general are tasked with investigating mismanagement within federal agencies and departments as well as to use subpoenas against non-government entities.  The Inspector General Act makes clear that inspectors general may

require by subpoena the production of all information, documents, reports, answers, records, accounts, papers, and other data in any medium (including electronically stored information), as well as any tangible thing and documentary evidence necessary in the performance of the functions assigned by this Act, which subpoenas, in the case of contumacy or refusal to obey, shall be enforceable by order of any appropriate United States district court: Provided, That procedures other than subpoenas shall be used by the Inspector General to obtain documents and information from Federal agencies.

The Federal Housing Finance Authority Inspector General recently “served subpoenas on the FHFA Director[ ]” and obtained an “Order from a United States District Court[ ]” in clear violation of § 6(a) of the Inspector General Act. This clear violation of the IG’s ministerial duties went unnoticed by Congress. Nor did Congress examine why the U.S. attorney for the Eastern District of Virginia sought to enforce a legally unauthorized subpoena.  

Conclusion

This Essay identifies the Supreme Court’s 1838 decision in Kendall as providing the framework for contemporary congressional oversight norms. But I show that Congress looks beyond the ministerial responsibilities of the executive branch to monitor discretionary policy activities. Nowhere is this fact more visible than in the case of inspectors general, who have been protected by Congress in conducting political investigations at the expense of their statutory responsibilities. When inspectors general shirk, presidents are justified in removing them. Watchdogs who substitute needed investigation and auditing of waste, fraud and abuse of taxpayer dollars for political and policy investigations undermine government accountability.  

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Daniel Epstein is the Vice President for Legal and Policy at Trust Ventures, a venture capital firm focused on startups facing regulatory barriers.  He is also a PhD candidate in administrative law and empirical methods at George Washington University.  Prior to Trust Ventures, Dan served as Senior Associate Counsel and Special Assistant to the President in the White House, from inauguration until March 2020.  Dan is currently a pending nominee for the United States Court of Federal Claims

Footnotes

[1] The Kendall Court declared the obligation of the postmaster general to be to execute “a mere ministerial act” resulting from the “direct and positive command of the law.” Justice Taney’s dissent makes clear that prerogative writs were not part of the common law but emergency powers that must be established by legislative act.  Yet the Court deemed such relief executable through the granting of a writ of mandamus – conceived of as a “common law” right. Under English law, the writ of mandamus was a writ “issuing out of the king’s bench, in the name of the king, and is called a prerogative writ, but considered a writ of right; and is directed to some person, corporation or inferior court, requiring them to do some particular thing, therein specified, which appertains to their office or duty, and which is supposed to be consonant to right and justice, and where there is no other adequate specific remedy.”

[2] The Supreme Court made clear in two prior cases that neither the Judiciary Act of 1789 nor the Constitution itself authorized the circuit courts to issue mandamus relief.

[3] See Dep’t of Homeland Sec’y v. Regents of Univ. of Cal., 591 U.S. ____ (June 18, 2020) at *16 (Roberts, C.J.) (ensuring publication of a policy prior to considering new reasons governing a decision promotes “agency accountability”).

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Photo credit to Tom Lohdan.

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