Trump vs. the Inspectors General
And what the seemingly illegal mass firings could mean for the future of independent agencies in the federal government.
HERE AND THERE AMONG THE DEMORALIZING and disturbing reports about Donald Trump’s rapid-fire assault on democratic institutions, there are stories of courage, of resistance, of people standing up for the rule of law and the Constitution.
There are the federal employees who have taken to Reddit to give confidence to one another to stand up to Trump’s depredations.
There is the employment official at USAID who reportedly refused to carry out unlawful firings and so was placed on administrative leave.
And there is Phyllis Fong, the inspector general of the U.S. Department of Agriculture, who reportedly had to be forcibly removed from her office after she refused to comply with Trump’s order firing her and more than a dozen other inspectors general.
A Trump administration spokesperson called Fong and the other fired inspectors general “rogue, partisan bureaucrats [who] have been relieved of their duties in order to make room for qualified individuals who will uphold the rule of law and protect Democracy.” The spokesperson said that Fong was not escorted out by security but left on her own.
Whichever account you believe about Fong’s final exit, if her termination and the terminations of the other inspectors general come before the Supreme Court, such a case could have broad constitutional implications for a 90-year-old precedent upholding Congress’s prerogative to create federal agencies with a measure of independence from the president.
Some background: Inspectors general (IGs) date back to the 1950s. They were created by Congress to serve as internal watchdogs tasked with uncovering fraud, waste, and abuse within executive branch agencies. After the transgressions of Watergate, Congress passed the Inspector General Act of 1978 (later amending it three times), creating new IGs at 12 different agencies—a number that was later expanded to 73. The law structurally designs IGs to have a measure of independence from the president and empowers them to audit agencies and report their results to Congress. They generally hire their own staffs, conduct congressionally mandated reviews, and have a separate budget. They are supposed to be selected based on their “integrity” and competence and without regard to “political affiliation.” In 2008, Congress amended the law to create the Council of the Inspectors General for Integrity and Efficiency (CIGIE), to coordinate the work of IGs and afford professional training.
Agency heads cannot prevent IG investigations, but they can in most cases remove them so long as they notify Congress 30 days in advance and provide justifications for the removals. The idea behind the 30-day waiting period is that it allows Congress to try and talk a president out of firing an IG. One of Ronald Reagan’s first acts as president in 1981 was to remove 15 IGs, prompting congressional pushback and a committee hearing, at which Rep. H.L. Fountain (D-N.C.), the committee chair, decried the “serious damage . . . done . . . by the perception that inspectors general were being viewed in the same light as political appointees, who expect to be removed with each change in administrations.” Presidents Obama and Trump in his first term also removed IGs due to “lack of confidence.”
The requirement of 30-day notification to Congress was added to the IG law in 2008, and in 2022 modified to say the president must provide Congress with a “substantive rationale” for the firing, “including detailed and case-specific reasons.”
THE BIG PICTURE: Trump’s actions strike at the heart of a larger question of constitutional structure—that of independent agencies. In requiring the 30-day notice, the law arguably restricts presidents’ ability to fire executive branch officials at will. Reversing Supreme Court precedent on agency independence could be the ultimate goal of Trump and his enablers—and they might well persuade the Court’s right-wing majority to go along with it.
The Constitution clearly gives presidents the power to appoint executive branch officials with the advice and consent of the Senate. But it says nothing whatsoever about removal. The Court has nonetheless held since 1926 that removal is part and parcel of the appointment power, on the theory that without the ability to fire underlings, the power to control a president’s hires is effectively meaningless.
In the early twentieth century, Congress tinkered with the removal power by creating agencies with officials that, by statute, could only be removed “for cause.” Deemed “independent agencies,” the top brass of these entities is usually comprised of “boards” whose multiple members serve staggered terms that run longer than a single presidential administration, effectively denying any one president the ability to fire those in charge in one fell swoop. (Any agency with the word “Commission” in its title qualifies—think Federal Trade Commission or Securities Exchange Commission, for example.) The theory behind independent agencies is that expertise, not politics, is necessary in certain areas of policymaking to produce the best results for the American public and the U.S. economy.
Independent agencies came under fire in 1935 in a case called Humphrey’s Executor v. United States. The Supreme Court upheld Congress’s power to constrain presidents’ ability to terminate independent agency heads for any reason—a limitation that later made its way into the Ethics in Government Act of 1978, for example, which created independent counsels, and later into the Justice Department regulations enabling attorneys general to tap special counsels to investigate high-ranking government officials, including presidents themselves.
Then, in 2017, the Court pulled back on Humphrey’s, holding in a 5–4 ruling that the structure of the Consumer Financial Protection Bureau—with its single director who could only be removed “for cause”—was unconstitutional. Chief Justice John Roberts wrote the opinion for the majority and was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. The lawyers behind Trump’s flurry of disturbing executive actions undoubtedly know that if they get a case challenging legislative restrictions on the president’s removal power—like a hypothetical one brought by a disgruntled IG seeking a court order reminding Trump that he is bound by acts of Congress—the same Supreme Court majority is positioned to overrule Humphrey’s altogether.
If that were to happen, the number of agencies—and their career staffs of experts—that would immediately go directly under Trump’s thumb is staggering. There are hundreds, including the Central Intelligence Agency, the Consumer Product Safety Commission (which protects the public from risky consumer products), the Defense Nuclear Facilities Board (which oversees the U.S. nuclear weapons complex), the Federal Communications Commission (which regulates and licenses radio, TV, and cable), the Federal Election Commission (which enforces federal campaign finance and election laws), the Federal Emergency Management Agency (which administers flood insurance and disaster relief programs), and the Federal Reserve Board of Governors (which acts as the central bank of the United States to ensure the stability of the nation’s financial system), among many others.
So when Fong, a 22-year veteran of the Department of Agriculture, took a stand against Trump, she took a stand for the American people too. The USDA administers nutrition assistance programs, supports and regulates commercial farming and livestock production, and protects consumer food safety (thus its involvement in the recent listeria outbreak at Boar’s Head meats) and animal welfare (it’s at the center of managing the looming threat of a bird flu epidemic).
Oh, and one other thing the USDA inspector general has done recently? In 2022, Fong’s office opened an investigation of Elon Musk’s brain-implant company Neuralink after staff raised concerns about allegations of needless suffering and death caused by animal testing. No wonder she was on the Trump-Musk presidency’s chopping block from the get-go.
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