[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. Res. 128 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
S. RES. 128

 Expressing the sense of the Senate that sections 3345 through 3349 of 
 title 5, United States Code (commonly referred to as the ``Vacancies 
Act''), relating to the appointment of certain officers to fill vacant 
   positions in Executive agencies, apply to all Executive agencies, 
                  including the Department of Justice.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 26, 1997

   Mr. Thurmond (for himself, Mr. Hatch, Mr. Grassley, Mr. Kyl, Mr. 
Sessions, and Mr. DeWine) submitted the following resolution; which was 
           referred to the Committee on Governmental Affairs

_______________________________________________________________________

                               RESOLUTION


 
 Expressing the sense of the Senate that sections 3345 through 3349 of 
 title 5, United States Code (commonly referred to as the ``Vacancies 
Act''), relating to the appointment of certain officers to fill vacant 
   positions in Executive agencies, apply to all Executive agencies, 
                  including the Department of Justice.

Whereas Congress enacted the Act entitled ``An Act to authorize the temporary 
        supplying of vacancies in the executive departments'', approved July 23, 
        1868 (commonly referred to as the ``Vacancies Act''), to--
            (1) preclude the extended filling of a vacancy in an office of an 
        executive or military department subject to Senate confirmation, without 
        the submission of a Presidential nomination;
            (2) provide an exclusive means to temporarily fill such a vacancy; 
        and
            (3) clarify the role of the Senate in the exercise of the Senate's 
        constitutional advice and consent powers in the Presidential appointment 
        of certain officers;
Whereas subchapter III of chapter 33 of title 5, United States Code, includes a 
        codification of the Vacancies Act, and (pursuant to an amendment on 
        August 17, 1988, to section 3345 of such title) specifically applies 
        such vacancy provisions to all Executive agencies, including the 
        Department of Justice;
Whereas the legislative history accompanying the 1988 amendment makes clear in 
        the controlling committee report that the general administrative 
        authorizing provisions for the Executive agencies, which include 
        sections 509 and 510 of title 28, United States Code, regarding the 
        Department of Justice, do not supersede the specific vacancy provisions 
        in title 5, United States Code;
Whereas there are statutory provisions of general administrative authority 
        applicable to every Executive department and other Executive agencies 
        that are similar to sections 509 and 510 of title 28, United States 
        Code, relating to the Department of Justice;
Whereas despite the clear intent of Congress, the Attorney General of the United 
        States has continued to interpret the provisions granting general 
        administrative authority to the Attorney General under sections 509 and 
        510 of title 28, United States Code, to supersede the specific vacancy 
        provisions in title 5, United States Code; and
Whereas the interpretation of the Attorney General would--
            (1) virtually nullify the vacancy provisions under subchapter III of 
        chapter 33 of title 5, United States Code;
            (2) circumvent the clear intention of Congress to preclude the 
        extended filling of certain vacancies and provide for the temporary 
        filling of such vacancies; and
            (3) subvert the constitutional authority and responsibility of the 
        Senate to advise and consent in certain appointments: Now, therefore, be 
        it
    Resolved, That it is the sense of the Senate that--
            (1) sections 3345, 3346, 3347, 3348, and 3349 of title 5, 
        United States Code (relating to the filling of vacancies in 
        certain offices), apply to all Executive agencies, including 
        the Department of Justice;
            (2) the general administrative authorizing statutes of 
        Executive agencies, including sections 509 and 510 of title 28, 
        United States Code, relating to the Department of Justice, do 
        not supersede the specific vacancy provisions applicable to 
        Executive agencies in title 5, United States Code; and
            (3) the Attorney General of the United States should--
                    (A) take such necessary actions to ensure that the 
                Department of Justice is in compliance with the 
                statutory requirements of such sections; and
                    (B) inform other Executive agencies to comply with 
                the vacancy provisions in title 5, United States Code.
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