Walpin Denied: Court Says He Wasn’t “Fired” Fired
Rule of law? Whatever on Earth is that?
A federal judge in Washington has dismissed the wrongful-termination lawsuit filed by Gerald Walpin, the AmeriCorps inspector general who was fired last year by President Obama. And not just dismissed; if the decision by U.S. District Judge Richard Roberts stands, in the future the White House will be able fire other inspectors general as it fired Walpin without fear of legal consequences.
Here’s the brief rundown. There is a law, co-sponsored by our President when he was a Senator, that requires the President give Congress 30 days notice and an explanation before he fires any Inspector General. President Obama fired Walpin summarily and without explanation. The judge in this case said that because the administration placed Walpin on administrative leave, he was not technically fired, even though the President stripped him of all his investigatory authority, and denied him access to his office and e-mails. This is, of course, a technically-correct decision but it flies in the face of the spirit of the law (which is that a President can not simply shelve an IG who happens to be vigorously investigating a friend and close ally). You can get more detail on the Walpin case by reading Stacy McCain’s posts at the American Spectator.
What this means, in a practical sense, is that any President can squelch an Inspector General’s investigation simply by placing the IG on administrative leave indefinitely. The President would then have all the time in the world to come up with a cock-and-bull story of incompetence or (in the case of Walpin) a laughable charge of senility. That is exactly the kind of expansion of executive power that Senator Obama decried as a candidate. Of course, when the power is in your hands, the temptation to accrete more to yourself is very difficult to resist, which is why we have the checks and balances system of the Constitution.
Then again, if Congress seems perfectly willing to abrogate its responsibility as a check on executive power when someone they like is in office, it’s not hard to see why President Obama (or the next Republican President) wouldn’t grab every scrap he could. That’s a perfectly normal, human impulse. Of course, it does make the Democratic whining about President Bush’s “unprecedented” grab for more executive power to fight a war ring incredibly hollow today.
UPDATE: Linked by Stacy McCain and Doug Hagin (who has launched his own podcast).
Other Posts of Interest:
- Is that a Second Shoe I See Dropping?
- Huffing and Puffing, the Scandal Slowly but Surely Climbed the Hill…
- Did the IG Scandal Start Because of a Sexual Misconduct Case?
Category: Our New Democratic Overlords, President Barack Obama
Jimmie sez:
Actually, the law has always required that the President "communicate the reasons" for removing or transferring an IG to Congress; the 2008 amendment merely requires that the communication take place 30 days before the removal or transfer.
http://openjurist.org/title-5/us-code/appendix/3/…
Obama did not "sumarrily fire" Walpin, as you later acknowledge, and he did provide the required notice to Congress. He stated that his reason was a lack of confidence in Walprin; when asked for more detail he provided it.
Please note that under the law IGs serve at the President's pleasure, and may be removed as the President sees fit. There is no requirement as to the substance of the reason for the President's removal. As a matter of fact, St. Reagan removed ALL the IGs when he took office in 1981… simply because he wanted his own guys in.
You're saying the court should ignore the requirements of the law in order to reach a conclusion outside its scope?
And the "spirit" of the law is that IGs may be removed at the President's pleasure, but the President should be willing – but is not required – to discuss the reasons with Congress. The only requirement is notice.
Oh and by the way, Walpin was not "vigorously investigating" Kevin Johnson when he was removed. The investigation was long complete and Walpin's final report submitted before he was recommended for dismissal.
The President doesn't place anyone on administrative leave; that is a personnel decision made according to administrative procedure by the agency supervising the IG (in this case the CNCS). Please note that the law states that its provisions do not preclude any other personnel action authorized by law.
As the law grants the President complete discretion in removing an IG, it hardly seems necessary that he would need time to come up with any story at all (see, for example, Ronald "We Want Our Guys" Reagan).
As to "laughable" charges: a Bush-appointed prosecutor complained about Walpin's unprofessional conduct, and the oversight board that included several Republicans unanimously recommended his removal based on his ongoing erratic and unprofessional behavior, topped off by a meeting in which he was disruptive and nearly incoherent.
Of course Walpin has a history of misconduct. When he was helping prosecute Roy Cohn, his own department stated he was "mishandling" the case, and the judge nearly threw the case out because of Walpin's "shocking" behavior.
http://select.nytimes.com/gst/abstract.html?res=F…
http://select.nytimes.com/gst/abstract.html?res=F…
How is acting exactly within the law an "expansion of executive power" ? And if Congress "abrogated" its responsibility to act as a check, it did so when it granted the President complete discretion in removing IGs, and most if not all other executive appointments.
Wow, Zuzu. Again you've written a comment longer than my original post. Are you sure you wouldn't rather be a blogger?
The real question here is whether you would be as willing to defend a Republican President who had done the same thing. I guarantee you it will happen now that a court-sanction precedent exists.
Don't be silly, we all President Obama is above the law; even his own laws.
Now leave the man alone, he needs to work on his putting!
Brian O'Connor
http://www.RedDogReport.com
@RedDogReport
So the decision was "technically" correct, and the conclusion is that the Inspector General Act, as amended by the Inspector General Reform Act, means what it says. So what's the right wingnutsphere's beef with this decision? Shouldn't you be upset at Congress, for writing a meek IGRA?
The beef is that the court's decision upholds only the letter of the law while allowing the administration to violate the very clear intent of the law. Courts are allowed to interpret intent — heck, the main argument over SCOTUS justices involves intent. What should concern you is that, if this decision stands, any President can do what Barack Obama did. I doubt seriously you'll like it when a Republican President does the same thing.
[...] Republican attorney in New York, was named to the I.G. post by President George W. Bush in 2007.Jimmie Bise has more at Sundries Shack. var addthis_append_data='false';var addthis_language='en';var addthis_options='twitter, digg, [...]
Well Jimmie, we know a Republican President has done something much more cynical – removing ALL the IGs simply because he felt like it. Didn't hear much outcry from the "limited executive" right against Reagan, though.
First, you haven't given any indication you actually understand what the intent of the law – either the 1978 or the 2008 version – is.
Second, courts only look to intent when the language of the law is not clear on its face. Which obviously is not the case here. Oh, and of course they would never use some vague idea about "intent" to countermand the requirements of the law.
But Jimmie, if you read the opinion and the legislative history of the IGRA, isn't there a strong argument that the intent (if there's such a thing as singular intent) of the IGRA is to facilitate intra-branch communication, and that the law was *intentionally* written in a way to avoid giving Inspectors General causal employment?
In other words, how do you know what the actual "intent" of Congress was when it passed this IGRA?
I don't think it's difficult to divine the intent of both the intra-branch communication requirement and the 30-day notification. So far as I can see, Senator Obama wanted to take some of the "at-will" power form the President and invest it in Congress, if only a little. The cool-down period would give Congress time to look at the IG in question and the explanation, to ensure that the firing wasn't capricious or done to squelch a sensitive investigation.
You could very well be right. I think, though, that you have to work harder to come to a different conclusion than the one I have. I'm not saying I have the final word on the matter, but my explanation is the simplest.
In the end, this issue isn't really legal, but political. I believe the left is rallying around this decision because of the President, not the principle much it assailed President Bush for firing US Attorneys even though they, also, were "at-will" employees (whose firing did not require an explanation nor a 30-day notification). The point of my post was to note that what President Obama can do today, President Palin (to pull a GOP name out of the air) can do in 2013.
Gabe Simpson:
Do you think Jimmie actually bothered to read the case or the legislative history? If he had done the latter, for instance, he would have known that Senator Obama did not co-sponsor the bill.
http://www.govtrack.us/congress/bill.xpd?bill=h11…
And yes, the legislative history, as discussed in the decision, shows that Congress specifically declined to include provisions requiring removal "for cause." That's called legislative intent.
Of course Senator Obama wouldn't have sponsored HB 928, since he was, well, a Senator. However, he was a co-sponsor of the Senate counterpart that was subsumed by HB 928. You are technically correct to say that Senator Obama did not co-sponsor the bill that was passed, however he did co-sponsor a bill that was virtually identical to the bill that did pass the Senate. It appears his bill was tabled because, well, the House had passed almost exactly the same bill and what's the need to go through the full reconciliation process to merge the two bills if the House's bill was acceptable and ready to go?
And every other President has done all the way back to Reagan if not before. The 30-day notice requirement doesn't change that – your gymnastics notwithstanding.
Nope, it doesn't change that. It does, however, shed more sunlight on government and gives Congress an opportunity to bring potential controversies to light. It makes a capricious firing less likely to happen.
The House bill was NOT virtually identical to the Senate bill at that time. However, the Senate eventually passed an amendment (not co-sponsored by Obama) that stripped the House language – which included a specific requirement for "for cause" removal – and inserted the language we know as the IGRA. That is called legislative history, and BTW, THAT is how you determine legislative intent.
http://thomas.loc.gov/cgi-bin/query/z?c110:h.r.92…