[Congressional Record Volume 143, Number 131 (Friday, September 26, 1997)]
[Senate]
[Pages S10068-S10069]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          SENATE RESOLUTION 128--RELATIVE TO THE VACANCIES ACT

  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:

                              S. Res. 128

       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 to 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.

  Mr. THURMOND. Mr. President, today, I am submitting a sense-of-the 
Senate resolution regarding the Vacancies Act. I am pleased to do so on 
my behalf, and the distinguished chairman of the Senate Judiciary 
Committee, and other members of the Judiciary Committee. Our purpose is 
to clarify for the Attorney General that the Vacancies Act applies to 
all executive departments and agencies, including the Department of 
Justice.
  The Vacancies Act provides that, except for recess periods, when an 
official serving in an advise and consent position in an executive 
agency leaves, the President may appoint certain individuals to serve 
in that position in an acting capacity for no more than 120 days before 
the nomination of a permanent replacement is forwarded for Senate 
confirmation. The Vacancies Act, which is codified in sections 3345 
through 3349 of title 5 of the United States Code, has existed in some 
form since at least 1868.
  This act is central to the advise and consent role of the Senate. By 
limiting the time that the President may temporarily fill a vacant 
advise and consent position, the act strongly encourages the President 
to quickly nominate a permanent replacement.
  I have become increasingly alarmed at the Clinton administration's 
failure to nominate officials to fill the vacancies that have occurred 
in executive branch positions, and particularly in the Department of 
Justice. When we held a Justice Department oversight hearing in the 
Judiciary Committee at the end of April, vacancies existed for the 
Associate Attorney General, Solicitor General, Assistant Attorney 
General for Civil Rights, Assistant Attorney General for the Criminal 
Division, and Assistant Attorney General for the Office of Legal 
Counsel.
  I asked Attorney General Reno at the oversight hearing whether she 
was concerned that a failure to nominate individuals for these 
positions within the 120-day deadline would violate the Vacancies Act. 
She responded in writing that the Justice Department was not bound by 
the Vacancies Act. The letter indicated that she could fill these 
vacancies pursuant to the Department's general administrative 
authorizing statutes without regard to the Vacancies Act.
  In my opinion, the Attorney General is simply wrong. Her 
interpretation of the vacancies law in this area is nothing more than 
an attempt to get around the law.
  First, the plain language of the Vacancies Act since it was amended 
in 1988 states that it applies to all executive departments and 
agencies. By law, the Department of Justice is an executive department, 
so Justice obviously is included. In fact, the original sponsor of the 
act, Representative Trumbull, stated on the Senate floor in 1868 that 
the act applied to, quote, ``any of the Departments.''
  Also, the Congress flatly rejected the Attorney General's 
interpretation when it amended the Vacancies Act in 1988. As explained 
in the report of the Committee on Governmental Affairs, Congress made a 
choice in 1988 of whether to repeal or revive the Vacancies Act, and it 
chose the latter. The report stated that it was time ``to revitalize'' 
the Vacancies Act and ``make it relevant to the modern Presidential 
appointments process.'' One method of accomplishing this was to assist 
the President by expanding the number of days he had to submit a 
nominee from 30 to 120 days after the vacancy was created. That way, 
the President would have more time to submit a qualified replacement.
  The committee report expressly rejected the Attorney General's flawed 
interpretation. It stated that the Vacancies Act was the exclusive 
authority for these appointments, and noted that the authorizing 
statutes of an executive department or agency do not provide an 
alternative means to fill vacancies. The amendment was made at the 
recommendation of the Comptroller General, who has battled with the 
Attorney General for many years over this flawed interpretation of 
vacancies law.
  Mr. President, this is a matter of great constitutional significance. 
If the view of the Attorney General were correct, the President could 
routinely ignore the advise and consent role of the Senate. In the 
Justice Department, the President would never be obligated to nominate 
any official below the Attorney General for Senate confirmation after 
his first appointee left, as long as the President was content for the 
person to serve in an acting capacity.
  In fact, based on the Attorney General's reasoning, the President 
apparently would not be bound by the Vacancies Act for officials in any 
department. Every Federal department from Agriculture to Veterans 
Affairs has authorizing statutes similar to Justice. Many Federal 
agencies do, too. Therefore, based on the Attorney General's reasoning, 
these departments and agencies can all claim to be exempt from the 
Vacancies Act. In fact, when faced with the Vacancies Act, many make 
the Attorney General's argument, and claim they aren't bound by it 
either. Obviously, the Congress would never have intended for its 
confirmation power to be circumvented in this manner.
  The Framers of the Constitution surely would not be pleased. The 
advise and consent role of the Senate is one of the fundamental checks 
and balances included within our great system of Government. Under the 
appointments clause of article II, section 2, of the Constitution, the 
President has the exclusive power to nominate principal officers of the 
United States, but the

[[Page S10069]]

Senate must give its advise and consent. As Justice Scalia stated for 
the Supreme Court earlier this year, ``[T]he Appointments Clause * * * 
is more than a matter of etiquette or protocol; it is among the 
significant structural safeguards of the constitutional scheme.''

  The involvement of the Senate is designed to promote a high quality 
of appointments and curb executive abuses. In the words of Alexander 
Hamilton in Federalist No. 76, ``The possibility of rejection [is] a 
strong motive to care in processing.''
  This resolution is designed to affirm the Senate's role by insisting 
that the Attorney General stop interpreting the act out of existence. 
It expressly states what should already be obvious from the plain 
language of the Vacancies Act and its legislative history: that the 
Vacancies Act applies to all executive departments and agencies, 
including the Department of Justice. The resolution also states that 
the Attorney General should ensure that the Department of Justice 
complies with the act, and that she should inform other executive 
agencies to abide by it, as well.
  This is not just a technical issue. It is not an idle problem. At 
some point this year, six advise and consent positions in the Justice 
Department have been in violation of the Vacancies Act. The position of 
the Assistant Attorney General for the Criminal Division has been 
vacant for over 2 years. This is an excellent example of the problem 
the Vacancies Act was designed to prevent. The Nation's chief law 
enforcement agency has been without a confirmed chief for crime since 
August 31, 1995. No name has been forwarded in the 9 months that this 
Congress has been in session. Mr. President, what message does that 
send about the Clinton administration's commitment to fighting crime?
  In the meantime, the Attorney General has been in the middle of a 
tremendous controversy surrounding her reluctance to seek the 
appointment of an independent counsel to investigate apparently illegal 
campaign fundraising practices. Would not having a politically 
accountable chief of the Criminal Division be helpful to her in 
analyzing whether crimes were committed?
  Also, consider the Office of Legal Counsel. Walter Dellinger was 
confirmed to head OLC in 1993, but he was very controversial. Many 
members of this body could not support him. Nevertheless, effective 
July 1, 1996, the Attorney General made Mr. Dellinger acting Solicitor 
General. The Senate may not have confirmed him to be Solicitor General. 
Of course, we will never know because by simply naming him acting 
Solicitor General, the administration avoided a fight over his 
appointment. For an entire year, for a full term of the Supreme Court, 
the United States was represented by a Solicitor General who was acting 
in violation of the Vacancies Act, in violation of the law. The 
President has just officially nominated someone else for the vacancy.
  Moreover, Mr. Dellinger's appointment caused another violation of the 
Vacancies Act. When the Attorney General moved Mr. Dellinger, she 
appointed an acting chief of OLC, who served over 120 days without a 
permanent nomination being submitted. Not only did this appointment 
exceed 120 days, it wasn't even legal in the first place. The Vacancies 
Act not only limits the amount of time someone can serve in an acting 
capacity, it also limits who can serve. Only someone who was the first 
assistant, which refers to the principal deputy, or someone who was 
earlier confirmed to a different advice and consent position can serve 
in the acting position. Mr. Dellinger's replacement did not meet either 
of these requirements. Thus, the chief of OLC was serving in violation 
of the Vacancies Act, in violation of the law, from the first day Mr. 
Dellinger left.
  Mr. President, the vacancies problem is not limited to the Department 
of Justice. It can be found throughout the executive branch. The 
Washington Post reported on August 29, 1997, that 30 percent of the top 
470 political jobs in the administration remain unfilled. When 
confronted with the Vacancies Act, many departments and agencies use 
the Attorney General's argument and also claim not to be bound by the 
act.
  It is time to put the Attorney General's flawed interpretation of the 
Vacancies Act to rest. Her reading of the Vacancies Act is a threat to 
the advise and consent role of the Senate. I am hopeful that my 
colleagues will join me and my cosponsors in supporting this simple but 
significant resolution. Let us adopt this important resolution, and 
reaffirm our constitutional duty of advise and consent.

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