[Editors’ note: At the one-year mark of the Biden administration, Just Security invited authors of the Good Governance Papers – originally published in October 2020 – to provide brief updates on their Papers, which explored actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For 2022, authors were invited to evaluate the Biden administration and/or Congress and, where applicable, to provide additional recommendations. For more information, please read the introductions to the original series and the update series.]
This article discusses issues and recommendations originally outlined in Good Governance Paper No. 11: Strengthening Inspectors General.
The 117th Congress wasted no time in protecting future inspectors general (IGs) from the unexplained, and possibly retaliatory firings, that drew concern during the Trump administration. The House Committee on Oversight and Reform held two hearings last year on how to better protect and empower these independent watchdogs. The resulting legislation, the IG Independence and Empowerment Act (H.R. 2662), includes the “for cause” removal protections we championed to insulate IGs from unwarranted removals. It also includes language that would require a president to transmit detailed and case-specific reasons for the removal in their communication to Congress announcing the intended removal of an IG. The House passed the bill in June with bipartisan support on the floor.
Before considering the House bill, the Senate Committee on Homeland Security and Governmental Affairs (HSGAC) held its own hearing to examine issues facing IGs. Citing constitutional concerns, the Senate committee removed the “for cause” removal protections from H.R. 2662 before voting unanimously to advance the bill through committee. Though the bill no longer explicitly protects IGs from removal without cause, the additional explanation it requires from the president when removing an IG will dramatically improve Congress’s ability to oversee any decision by a president to remove an IG.
For his part, President Joe Biden’s White House published a statement of administration policy supporting the Protecting Our Democracy Act (H.R. 5314) when the bill was up for a floor vote in the House of Representatives in December 2021. Though not focused solely on IGs, that bill included language very similar to our proposed “for cause” removal limitation. However, the White House has yet to express formal support for the IG Independence and Empowerment Act (H.R. 2662), despite the bill’s bipartisan support and momentum in Congress. The White House’s Office of Management and Budget also issued guidance to all agencies laying out how to cooperate with their respective IGs, a significant improvement on the Trump White House’s positioning on IGs.
And of course, Biden should probably get the equivalent of a “free space” on his report card for not removing any IGs with an insufficient explanation to Congress. After all, the former president’s multiple insufficiently explained IG removals are what reinvigorated the debate about better insulating IGs from political pressures, because a lack of transparency around IG removals naturally raises suspicions that the removals are retaliatory for effective oversight. The Biden administration’s willingness to support efforts to codify a clear standard here is laudable.
At the Project On Government Oversight, we continue to agree with the experts at the Congressional Research Service, who also conclude that the proposed “for cause” removal protections are constitutional under the Supreme Court’s current framework. Consequently, we’re disappointed that the Senate decided not to consider these reforms. However, even without this explicit protection, the IG Independence and Empowerment Act, as amended by HSGAC, will make it harder for a president to remove an IG, whether just to evade oversight or as retaliation for a job well done.