January, 2025
Washington — Many thanks are owed to the several plaintiffs who challenged the president's confusing and misguided budget-freeze order of January 27, 2025, and to the federal district judges who quickly stayed it, causing it to be withdrawn. This renews confidence that our judicial branch can still be an effective check on the executive branch.
My previous post expressed the hope that the Inspectors General fired by emails on January 25, 2025, would also seek judicial relief, because the firings are clearly illegal under legislation passed by Congress in 2022 to protect IGs. So far, the IGs have not acted.
One reason is offered by reporter Charlie Savage of the NYT, who in a front-page article suggests that the 2022 legislation is unconstitutional and that the president is eager to get the issue into a friendly court, increasing his executive power.
Jack Goldsmith, writing in Lawfare, explores these constitutional issues cogently, concluding that part of the 2022 act dealing with the removal power may be unconstitutional, but that the other part dealing with whom the president may appoint, when an IG is removed, is not. In a nutshell, the president may not appoint a lackey.
What neither author addresses, however, is the possibility that the president will be happy not to appoint anyone, leaving the IG offices in the hands of acting officials whose terms are short and whose powers are much weaker than those of an office headed by a Senate-confirmed IG.
In my experience, when confirmed IGs lead investigations and audits, their findings and recommendations have a good chance to stick, even in the face of hostility from cabinet secretaries who tolerate or even participate in fraud, waste, and abuse. If the quality of an IG's work is compelling, and the IG persists over time, the IG can prevail.
Take, for example, the Education IG's audit of excessive federal subsidies for a New Mexico student loan lender in 2005, which was overruled by Secretary Margaret Spellings. We know from subsequent litigation and discovery involving other such entities why it was overruled: Congressman John Boehner's PAC was benefiting from huge contributions from the loan industry. His former staff was even strategically placed in the Education department to tip off lenders before the IG arrived to audit them.*
This cozy transactional arrangement was broken up by subsequent IG audits written by experienced staff, who also came down hard on the department's office of Federal Student Aid. The audits cut off literally billions of dollars otherwise destined to be lost to fraud, waste, and abuse.
This happy outcome could never have happened under an acting IG.
Given such history, why would the ultimate transactionalist Donald Trump want to make any IG appointments when he can effectively sideline IG offices through firings and subsequent inaction, leaving the offices with weak and temporary leadership? Neither the legislative nor judicial branches can force him to make appointments. I agree with Jack Goldsmith that our current legislators do not have the fortitude to protect IG offices, whatever the situation. And they are hardly up to using the Take Care Clause against the executive, although the Constitution provides it.
Which throws it back to the IGs to look to the judicial branch, where it is possible and even likely to find a judge who will stay their dismissals without trying to guess how the Supreme Court might rule on the constitutionality of the various parts of the 2022 IG act. Lacking clear direction from higher level courts, that's not the job of a federal district judge.
For all we know, a stay might not result in the president's compliance with current law to give notice along with sufficiently substantive explanations for the IG firings — that's not his style. And even if he were to go through the procedural steps of compliance, a judge might insist on following the letter of the law on substance.
In the year or two a case might take to get to the Supreme Court, our jurisprudence might evolve ways to deal with an executive bent on destroying our nation's checks and balances. It's a little too much to believe that courts would willingly write opinions sealing their own demise.
But if the IGs do not bring a case, we'll never know.
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* Dan E. Moldea, Money, Politics, and Corruption in U.S. Higher Education, 2020, p. 129.
