The fired IGs argue that their “purported terminations violate the plain language of a federal statute—one enacted with bipartisan support in Congress and signed into law by the President. Specifically, the Inspector General Act (IG Act) unambiguously provides that an IG may be removed only ‘by the President,’ who must first (1) notify Congress about a planned removal at least 30 days before it occurs and (2) provide a substantive, case-specific rationale for the termination.”
According to the fired IGs, each of their removals “from their positions was done ... without any such notice, and without any rationale being provided. Each removal is therefore a nullity.”
In a footnote, counsel for the fired IGs admitted, in effect, that the “plain language” of the statute at issue is not so plain: “This statutory provision was not recodified following the 2022 amendments, which are reflected at Public Law No. 117-286, §3(b), 136 Stat. 4208 (2022).”
This is an important case about important constitutional issues, and statutory issues involving the authority of inspectors general, who by statute are charged with rooting out fraud, waste, and abuse.
Inspectors general serve a crucial and unique role in explaining to the American people, typically but not exclusively through Congress, how our government is spending our tax dollars.
At the onset of the March 27 hearing, Judge Reyes announced she had not made up her mind about these constitutional and statutory issues. After the hearing, she “took the matter under advisement.”
The easiest and most constitutionally-principled way for Judge Reyes to resolve this case is for her to accept the Justice Department’s interpretation of the statute, thereby avoiding the difficult constitutional issues underlying the IGs seeking a declaration that their firings were “a nullity.”
Justice Department counsel for the defendants, who include Secretary of Defense Pete Hegseth and Trump, did a good job explaining to Judge Reyes the difference between the president’s authority to remove an inspector general, and the provision in the IG Act calling for the president to notify Congress of the reasons for firing any IG.
During the hearing, counsel for the eight fired IG’s, Seth Waxman, presented to Judge Reyes a letter dated March 26 from the chairman and ranking member of the Senate Armed Services Committee, asking the acting Department of Defense (DoD) IG to conduct an inquiry into the recent incident in which a reporter was included, apparently by mistake, in a group Signal chat that included members of the National Security Council. According to the senators, “This chat was alleged to have included classified information pertaining to sensitive military actions in Yemen.”
Judge Reyes promptly asked Waxman if the acting DoD IG is required to answer the letter, to which Mr. Waxman replied “Yes.” With all due respect, Mr. Waxman was wrong.
There is nothing in the IG Act that requires the acting DoD IG to answer the letter or to conduct the requested inquiry. Nevertheless, on April 3, the acting DoD IG released a memo to Hegseth announcing that “we are initiating” an “Evaluation of the Secretary of Defense’s Reported Use of a Commercially Available Messaging Application for Official Business,” citing the March 26 letter from the chairman and ranking member.
This footnote is antithetical to transparent government, and creates the appearance that the acting DoD IG is engaging in hidden politics.
The acting DoD IG should identify all members of Congress who made “similar requests.”
The American People deserve to know.
I still think that the easiest and most constitutionally principled way for Judge Reyes to resolve this case about important constitutional issues, and statutory issues involving the authority of inspectors general, is for her to accept the Justice Department’s following interpretation of the statute, thereby avoiding the difficult constitutional issues.
The Justice Department attorney representing the defendants has argued: “Because the Inspector General Act does not make the President’s removal authority contingent on compliance with the congressional notice provision, Plaintiffs are not likely to succeed on any of their claims or in obtaining any of the relief they seek in their Complaint.”
If Congress does not like this result, Congress can clarify its currently not-so “plain language.”