In recent months, President Trump has fired or removed five inspectors general and sought to replace at least four of them with officials he perceives to be more loyal. Members of Congress have responded with bills to check the president through “for-cause” removal restrictions on inspectors general.
I argued in the Washington Post last week that these efforts might not be constitutional and are destined to fail in any event. A better approach, I maintained, is for Congress to limit the president’s discretion to temporarily fill vacant inspector general slots either to someone already confirmed for an inspector general position in another agency or to a senior career official in the agency’s Office of Inspector General. This post explains why this and similar approaches are clearly constitutional.
The Constitution specifies two basic paths for the president to appoint officers: the Appointments Clause, which requires Senate advice and consent; or the Recess Appointments Clause, which requires that the Senate be in recess. The executive branch has taken different positions (pp. 4-7) on how much authority Congress has to specify qualifications for these offices. In recent decades, it has taken a particularly narrow view of Congress’s authority. Notably, then-head of the Office of Legal Counsel (OLC) William Barr’s 1989 memorandum on “Common Legislative Encroachments on Executive Branch Authority” criticized qualification requirements and stated that the “only congressional check that the Constitution places on the President’s power to appoint ‘principal officers’ is the advice and consent of the Senate.” One can expect the Barr Justice Department in 2020 to hold this view.
However, the Appointments Clause is not the source of authority for the president to appoint acting officials. The Justice Department has long made clear that the Take Care Clause, not the Appointments Clause, gives the president authority to appoint acting officials. It has also made clear that the president’s power to make temporary appointments is defeasible by Congress. As OLC explained in 1994:
The President’s take care authority to make temporary appointments rests in the twilight area where the President may act so long as Congress is silent, but may not act in the face of congressional prohibition. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). Thus, the Vacancies Act, 5 U.S.C. §§3345-3348, constitutes a restriction on the President’s authority, as opposed to a source of power. If it applies to a given position, the Vacancies Act constitutes the sole means by which a temporary appointment to that position may be made.
This quotation is from an unpublished OLC opinion, “Memorandum for Neil Eggleston, Associate Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Appointment of an Acting Staff Director of the United States Commission on Civil Rights at 3 (Jan. 13, 1994),” and is quoted and explained on page 164 of this 1996 OLC opinion on “The Constitutional Separation of Powers Between the President and Congress.” The George W. Bush administration’s OLC relied on the 1994 opinion in 2001 when it reiterated that the president “may not act in the face of congressional prohibition” to fill a temporary vacancy (emphasis added).
Some 19th century Justice Department opinions had concluded that Congress could not restrict the president’s power to make temporary appointments. The 1996 OLC opinion describes these earlier opinions on pages 162-63 before it rejects their analysis. It further explains that the Justice Department had rejected this earlier view beginning with the enactment of the Vacancies Act of 1868, which “Attorneys General treated … as providing the exclusive means of making temporary appointments to those offices covered by the statute.”
Congress has a long history of providing specific and narrow criteria that presidents must follow in filling vacancies. For some vacancies, Congress directs the person who shall operate as acting when there is a vacancy and leaves the president no discretion. For example, Congress has prescribed that when the position of comptroller general, the head of the Government Accountability Office, is vacant, the deputy attorney general serves in the acting role. Similarly, Congress has specified that the under secretary for management in the Department of Homeland Security shall serve as the acting secretary if neither the secretary nor the deputy secretary is available to exercise the duties of the Office of the Secretary. (These last two statements rest on the premise that the Federal Vacancies Reform Act does not apply to these vacancies.)
Moreover, OLC has made clear—on page 3 of the “Memorandum for Neil Eggleston”—that statutes such as the Federal Vacancies Reform Act that purport to authorize presidents to fill vacancies actually operate as “a restriction on the President’s authority, as opposed to a source of power.” OLC explained: “If it applies to a given position, the Vacancies Act constitutes the sole means by which a temporary appointment to that position may be made.”
Broad congressional control of vacancies makes constitutional sense. If the president had exclusive constitutional power to appoint acting officials, then the Recess Appointments power, with its specific limitations, would be practically irrelevant, since a president would have an independent power to appoint nonpermanent officials through a different route with no limitations. That cannot be right.
Moreover, OLC has justified the president’s defeasible power to make temporary appointments as an exercise of the Take Care Clause in order to “keep the government running.” The idea seems to be that in the absence of guidance from Congress, the president’s duty to enforce the laws entails a residual power to fill vacancies temporarily in the absence of congressional guidance. But this rationale for executive power gives way when Congress provides a rule. The only judicial decision I have found that addresses this issue, Williams v. Phillips, is consistent with this conclusion. In Williams, the U.S. Court of Appeals for the D.C. Circuit suggested (but did not hold) that any inherent presidential power to appoint an acting officer persisted only “in the absence of limiting legislation.”
A final note. There is a question whether and for how long it would be consistent with the Appointments Clause for a president to fill a principal office with a non-Senate-confirmed person (such as an SES or GS-15 employee). This question should not come up in the context of the proposed statute, however. Statutory inspectors general are probably not principal officers. And in any event, OLC has often ruled, in reliance on United States v. Eaton, that the Appointments Clause does not bar such arrangements as long as they are “special and temporary.”
In sum, Congress has a lot of room to constrain the president’s options for acting replacements for a fired inspector general. It can use this power to increase the likelihood that the replacement for a fired inspector general has adequate independence.