[Senate Report 105-250]
[From the U.S. Government Publishing Office]
Calendar No. 469
105th Congress Report
SENATE
2d Session 105-250
_______________________________________________________________________
FEDERAL VACANCIES REFORM ACT OF 1998
__________
R E P O R T
OF THE
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
together with
ADDITIONAL AND MINORITY VIEWS
TO ACCOMPANY
S. 2176
TO AMEND SECTIONS 3345 THROUGH 3349 OF TITLE 5, UNITED STATES CODE
(COMMONLY REFERRED TO AS THE ``VACANCIES ACT'') TO CLARIFY STATUTORY
REQUIREMENTS RELATING TO VACANCIES IN CERTAIN FEDERAL OFFICES, AND FOR
OTHER PURPOSES
July 15, 1998.--Ordered to be printed
COMMITTEE ON GOVERNMENTAL AFFAIRS
FRED THOMPSON, Tennessee, Chairman
WILLIAM V. ROTH, Jr., Delaware JOHN GLENN, Ohio
TED STEVENS, Alaska CARL LEVIN, Michigan
SUSAN M. COLLINS, Maine JOSEPH I. LIEBERMAN, Connecticut
SAM BROWNBACK, Kansas DANIEL K. AKAKA, Hawaii
PETE V. DOMENICI, New Mexico RICHARD J. DURBIN, Illinois
THAD COCHRAN, Mississippi ROBERT G. TORRICELLI, New Jersey
DON NICKLES, Oklahoma MAX CLELAND, Georgia
ARLEN SPECTER, Pennsylvania
Hannah S. Sistare, Staff Director and Counsel
Frederick S. Ansell, Chief Counsel
Leonard Weiss, Minority Staff Director
Lynn L. Baker, Chief Clerk
C O N T E N T S
----------
Page
I. Purpose..........................................................1
II. Summary..........................................................1
III. Need for Legislation.............................................3
IV. Legislative History of S. 2176...................................9
V. Committee Action................................................10
VI. Section-by-Section Analysis.....................................11
VII. Regulatory Impact Statement.....................................22
VIII.Cost Estimate...................................................23
IX. Changes in Existing Law.........................................23
Calendar No. 469
105th Congress Report
SENATE
2d Session 105-250
_______________________________________________________________________
FEDERAL VACANCIES REFORM ACT OF 1998
_______
July 15, 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Thompson, from the Committee on Governmental Affairs, submitted the
following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 2176]
The Committee on Governmental Affairs, to which was
referred the bill (S. 2176) to provide a mechanism for the
temporary filling of positions that are legally appointed by
the President, by and with the advice and consent of the
Senate, and having considered the same, reports favorably on
the bill as amended and recommends that the bill as amended do
pass.
I. Purpose
The purpose of S. 2176, the Federal Vacancies Reform Act,
is to create a clear and exclusive process to govern the
performance of duties of offices in the Executive Branch that
are filled through presidential appointment by and with the
consent of the Senate when a Senate confirmed official has
died, resigned, or is otherwise unable to perform the functions
and duties of the office.
II. Summary of S. 2176
S. 2176 provides that upon the death, resignation, or
inability to serve of an officer of an executive agency
(including the Executive Office of the President), the first
assistant to the officer becomes the acting officer, subject to
the bills time limits. If the President so directs, a person
who has already received Senate confirmation can be made the
acting officer in lieu of the first assistant. The bill also
requires that a first assistant who has not received Senate
confirmation, but who is nominated to fill the office
permanently, can be made the acting officeronly if he has been
the first assistant for at least 180 days in the year preceding the
vacancy. The acting officer may serve for 150 days beginning on the
date the vacancy occurs. In the event a first or second nominee is
withdrawn, rejected or returned, the person may serve as the acting
official until 150 days after the withdrawal, rejection, or return.
The bill applies to all vacancies in Senate-confirmed
positions in executive agencies with a few express exceptions.
First, those laws that expressly provide that they supersede
the Vacancies Act will do so. Second, current laws (there are
approximately 41) that provide for the President or the head of
an executive department to designate an officer to perform the
functions and duties of a specified office in an acting
capacity are maintained, as are those statutes that themselves
stipulate who shall serve in a specific office in an acting
capacity. Statutes that generally permit agency heads to
delegate or reassign duties within their agencies are specified
not to constitute statutes that provide for the temporary
filling of particular offices.
The bill's enforcement mechanism is to make an office
vacant if, 150 days after the vacancy arises, no presidential
nominee has been submitted to the Senate for the office. For
offices other than the heads of agencies, the functions and
duties specifically to be performed by the vacant officer are
to be performed only by the head of the agency. Such duties
include duties established by regulation for the officer during
any part of the 180 days before the vacancy occurred,
notwithstanding subsequent regulations that purported to limit
those duties. The sanction can be ended if the President
submits a nominee after the 150-day period, whereupon the
acting officer can resume service. Actions taken in violation
of the vacant officer provisions are of no effect and are not
permitted to be ratified by anyone else. The shifting of duties
to the agency head does not apply to vacancies in the positions
of general counsel to the National Labor Relations Board and
Federal Labor Relations Authority or to Senate-confirmed
inspectors general, given the specific goal Congress
established for those positions of independence from the agency
heads.
The bill also requires heads of agencies to report to the
General Accounting Office on the existence of vacancies,
persons serving in an acting capacity, the names of any
nominees, and dates of disposition of such nominees. The
Comptroller General then reports to the Congress, the
President, and the Office of Personnel Management of the
existence of any violations of the Vacancies Act.
The 150-day period for submitting nominations is extended
for an additional 90 days for vacancies that exist when the
President changes or that arise in the 60 days thereafter. And
the bill maintains holdover provisions in current law that
apply to single-member independent agencies, and exempts
members of multi-member independent agencies altogether, as
does the present Vacancies Act.
The bill applies to any office that becomes vacant after
the date of enactment, as well as to offices that are vacant on
the date of enactment, except that the bill shall apply to
those offices as though they first became vacant on the date of
enactment.
III. Need for Legislation
The need for legislation to govern the performance of the
functions and duties of vacant offices ultimately derives from
Article II, Section 2 of the Constitution, which, inter alia,
vests the President with the authority to appoint all officers
of the United States, subject to the advice and consent of the
Senate, but that Congress, by law, may vest the appointment of
inferior officers in the President alone, in the courts of law,
or in the heads of departments. Congress has passed legislation
since the Washington Administration to provide for temporary
officials to perform the functions and duties of vacant
positions requiring the advice and consent of the Senate. Over
the years, the time of temporary service has been lengthened,
but Congress has always placed time limits on such acting
officials.
In recent decades, the Department of Justice has argued
that its advise and consent positions are not covered by the
Vacancies Act. It construes its enabling legislation, and now
the enabling legislation of other departments, as exempting its
compliance with the Vacancies Act. Specifically, the Department
of Justice maintains that where a department's organic act
vests the powers and functions of the department in its head
and authorizes that officer to delegate such powers and
functions to subordinate officials or employees as she sees
fit, such authority supersedes the Vacancies Act's restrictions
on temporarily filling vacant advice and consent positions,
allowing for designation of acting officials for an indefinite
period, even without submitting a nomination to the Senate to
fill the position on a permanent basis. This interpretation of
the law is wholly lacking in logic, history, or language, as
evidenced by repeated opinions of the Comptroller General.
Opinion B-150136, Feb. 19, 1976; 65 Op. Comp. Gen. 626, 631-33
(1986); Opinion B-220522.2, Oct. 17, 1986. By May, 1997, seven
statutory offices in the Justice Department requiring
presidential nomination and Senate confirmation were vacant.
One vacancy had existed for twenty-one months, three were
vacant for more than 120 days, and three positions were
unfilled for less than 120 days. In at least four instances,
positions were filled by an order of the Attorney General
designating a person to act in the vacant position. For
example, the Solicitor General's position was occupied by an
acting officer for more than one year without a nomination ever
being submitted to the Senate.
Despite attempts to do so through 1988 amendments to the
Vacancies Act, described below, Congress was not successful in
gaining the Justice Department's agreement that its advice and
consent positions are subject to the Vacancies Act. Given the
growing number of federal departments and agencies that now
claim exemption from the Vacancies Act, Congress must
explicitly reject the position that general organic statutes
for various agencies and departments, such as 28 U.S.C.
Sec. Sec. 509 and 510, trump the specific provisions of the
Vacancies Act. Otherwise, the Vacancies Act will be of no
practical effect, thwarting the constitutional mandate that
persons serving in advice and consent positions do so through
the Senate's approval of such service.
the 1988 amendments
The Justice Department's aggressive claims of exemption
from the Vacancies Act led Congress in 1988 to make the first
significant changes in the Vacancies Act since 1868. The 1988
amendments changed the law's coverage to apply to all executive
departments and agencies, overruling a 1973 court decision that
had limited the applicability of the Act to executive and
military departments. The length of time that an acting
official was permitted to serve was extended to 120 days,
rather than the previous 30, and the acting officer could
servemore than 120 days if the President submitted a nominee. An
additional 120 days of acting service was provided if the Senate
rejected the nomination or if it was withdrawn. Through this mechanism,
Congress created an incentive for the President to submit nominations
in a timely manner, and allowed temporary officials to serve until the
Senate completed its advice and consent function. This Committee's
report accompanying the Senate bill stated, ``The Committee also
believes that the present language, however old, makes clear that the
Vacancies Act is the exclusive authority for the temporary appointment,
designation, or assignment of one officer to perform the duties of
another whose appointment requires Senate confirmation. The exclusive
authority of the Vacancies Act would only be overcome by specific
statutory language providing some other means for filling vacancies.''
S. Rep. No. 100--317, 100th Cong., 2d Sess. 14 (1988). In 1989, the
Justice Department's Office of Legal Counsel recognized the Senate's
view, but continued to interpret the Vacancies Act as not precluding
the Attorney General's authority to appoint temporary officials under
the Department's organic statute, characterizing the Senate report as
an improper and ineffective effort to ``alter the proper construction
of a statute through subsequent legislative history.'' 13 O.L.C. 173,
175 (1989). If the Vacancies Act is to function as it is designed--to
uphold the Senate's prerogative to advise and consent to nominations
through placing a limit on presidential power to appoint temporary
officials--the Justice Department's interpretation of the existing
statute must be ended. Legislation is needed to ensure this result, a
primary reason for the Committee's reporting of S. 2176.
The Constitutional Need for Legislation
The selection of officers is not a presidential power. The
President may choose whom he wishes to nominate, but the Senate
has the power to advise and consent before those nominees may
assume office. The Appointments Clause ``is more than a matter
of `etiquette or protocol;' it is among the significant
structural safeguards of the constitutional scheme.'' Edmond v.
United States, 117 S. Ct. 1573, 1579 (1997). The Appointments
Clause was adopted against a historical background: ``The
`manipulation of official appointments' had long been one of
the American revolutionary generation's greatest grievances
against executive power because `the power of appointment to
offices' '' was deemed ``the most insidious and powerful weapon
of eighteenth century despotism.'' Freytag v. Commissioner of
Internal Revenue, 501 U.S. 868, 883 (1991) (citations omitted).
Nonetheless, vacancies occur in such positions, and since
the President lacks any inherent appointment authority for
government officers, legislation authorizing some non-Senate
confirmed persons to perform the functions and duties of vacant
offices is necessary if the government's operations are to be
performed. The president's duty is to submit nominees for
offices to the Senate, not to fill those offices himself. The
President's power to take care that the laws shall be enforced
is a duty, and not a source of power, since the President takes
care that the laws be executed, and has no right to enforce the
laws himself where Congress vests such responsibility in an
inferior officer. See, e.g., Kendall ex rel. Stokes v. United
States, 12 Pet. (37 U.S.) 522, 612-613 (1838); George v.
Ishimaru, 849 F. Supp. 68 (D.D.C. 1994). In the absence of
affirmative statutory authority to fill a vacancy, the office
must remain vacant. The Vacancies Act limits presidential
authority to make acting appointments, while preserving the
Senate's power to advise and consent. Therefore, its scope must
be government-wide unless Congress chooses clearly and
specifically to exempt specifically identified officers from
its reach when countervailing considerations apply.
Because the Justice Department maintains that it is exempt
for the Vacancies Act, it has permitted positions to be held by
acting officers for years without the submission to the Senate
of a nominee. Its contentions are broadly applicable to
virtually all other departments given the broad language of
vesting and delegation contained in those departments' organic
statutes. By early in 1998, 64 of 320 advise and consent
positions in the executive branch were held by acting
officials, 43 of whom had served more than 120 days without a
nominee. Acting officials served in each of the 14 Cabinet
departments. If the Constitution's separation of powers is to
be maintained, and officers of the government subjected to the
scrutiny of the Senate for the benefit of the liberty of the
people, legislation to address the deficiencies in the
operation of the current Vacancies Act is necessary. The 1988
legislation unfortunately has not succeeded in encouraging
presidents to submit nominees in a timely fashion, and it has
not resulted in the Justice Department's agreement that is
covered by the Act. Indeed, given the number of acting
officials and the growing number of departments that claim not
to be covered by the Vacancies Act, the Senate's confirmation
power is being undermined as never before.
The ``Doolin'' Decision
Most recently, the need for new legislation was underscored
by the decision of the United States Court of Appeals for the
District of Columbia Circuit in Doolin Security Savings Bank,
F.S.B. v. Office of Thrift Supervision, 139 F.3d 203 (D.C. Cir.
1998). In that case, the validity of an Office of Thrift
Supervision administrative enforcement action was challenged by
a bank subject to the order on the ground that the absence of a
lawfully appointed director of the agency rendered the
enforcement action void. The Senate-confirmed director of OTS
resigned in December, 1992, and purported to delegate all his
authority to OTS's Deputy Director for Washington Operations.
That individual, who was neither the first assistant nor a
Senate-confirmed individual, served as the acting director
until October, 1996. Two days later, the President invoked the
Vacancies Act to designate a Senate-confirmed official from the
Department of Housing and Urban Development to serve as acting
director. Within 120 days of the second acting director's
appointment, the President submitted a permanent nominee to the
Senate. The new acting director issued the final order against
the bank in March, 1997.
The bank maintained that the 120-day limitation on acting
service contained in the Vacancies Act lapsed long before the
second acting director was ever named. The court agreed that
the Vacancies Act may be used only when there is a vacancy
caused by the departure of an officer appointed in compliance
with Article II, and that the departure of an appointed acting
official does not trigger the Vacancies Act. The court found
that merely because a person temporarily performs the functions
of an office does not make that individual an ``officer'' for
purposes of the Vacancies Act. ``Otherwise, Sec. 3348's time
limitation could be easily avoided by a series of temporary
resignations, with each resignation triggering a new 120-day
period.'' 139 F.3d at 208. Thus, the departure of the Senate-
confirmed Director triggered the president's authority under
Sec. 3347 to designate an acting official, not the departure of
the acting official. The Committee accepts this reaffirmation
of the longstanding operation of the Vacancies Act.
Notwithstanding its recognition that the President's
designation of the second acting official took place
approximately four years after the vacancy in the position
arose, however, the court upheld the second acting director's
1997 final order. The court agreed with the Justice Department
that the 120-day time limit contained in Sec. 3348 does not
begin to run until someone actually takes office pursuant to
the Vacancies Act, either by detail or by presidential
directive. Under that interpretation of the statute, the second
acting director served lawfully at the time the order was
issued against the bank. The court rejected the bank's position
that the 120-day period begins immediately upon the death or
resignation of a constitutionally appointed officer.
According to the court, ``Nothing in the Act expressly
deals with the amount of time that may transpire before the
President exercises his Sec. 3347 authority to designate a
temporary replacement.'' 139 F.3d at 209. In its view, the
Vacancies Act governs how long a position may be temporarily
filled, but does not specify when the President must undertake
the filling of the position. ``The time limit is placed not on
Presidential action, but on the tenure of the President's
designee.'' Id. The 120-day period will commence with the
vacancy when the first assistant assumes the office or the
President under Sec. 3347 immediately designates an acting
official. But if there is no first assistant and the President
does not immediately act, the vacancy has not been ``filled''
and the 120-day period does not run. Id.
The Committee believes that this portion of the court's
opinion necessitates legislative action. Whether or not the
court properly interpreted the existing law, the Committee
believes that the 120-day time limit must run from the date of
the vacancy caused by the death or resignation of the Senate-
confirmed official, and not from the date that the President
designates an acting official. A limit must be placed on the
President's time to act to fill a position. If the purpose of
the Vacancies Act is to limit the President's power to
designate temporary officers, a position requiring Senate
confirmation may not be held by a temporary appointment for as
long as the President unilaterally decides. Such a scheme
obliterates the constitutional requirement that the officer
serve only after the Senate confirms the nominee. If there is
no first assistant, the President must designate another
Senate-confirmed official. By contrast, the Doolin court would
allow the President to accept a resignation on the second day
of his term, allow an acting person to assume the functions and
duties of the office (in this case, an acting officer not
appointed by the President), and then, so long as there is no
first assistant, by unilaterally not invoking the Vacancies
Act, allow that position to be filled by an ``acting'' official
who has never received Senate confirmation for so long as the
president holds office. The Committee finds this state of
affairs to be unacceptable and constitutionally suspect. Nor
does it believe that the vacancy has not been ``filled'' when
an acting person has been performing the functions and duties
of the office for four years.
Notwithstanding the 1988 Vacancies Act amendments that
provide for a tolling of the 120-day period when the President
submits a nomination to the Senate to fill the vacant position,
the court stated, ``The Vacancies Act was never meant to give
the President an ``incentive'' to fill vacant positions with
appointees confirmed by the Senate. The function of the Act is
to allow some breathing room in the constitutional system for
appointing officers to vacant positions, to validate the
actions of those temporarily occupying the positions.'' Id. at
211. The Committee believes that the reason why in 1988, for
the first time, the period of acting service was extended
beyond 120 days if the President submitted a nominee is that,
in light of the frequent noncompliance with the Vacancies Act
by presidents who allowed acting officials to serve more than
120 days, Congress wanted to encourage the President to submit
a nominee within the Vacancies Act period. If an acting person
served beyond 120 days, the Senate at that point would bear the
responsibility for the fact that a Senate-confirmed person for
that office was not in place.
The court recognized that under its interpretation of the
statute, if no one is detailed or directed to fill the
position, or the 120 days expires without a nomination, the
position will be vacant or occupied by someone not
constitutionally entitled to perform the duties of the office.
But in its view, that situation will create an incentive for
the President to submit a nomination, for fear that the actions
of part of his administration will be declared void. The
Committee believes that this part of the court's opinion also
shows the need for Congressional corrective action. Under the
Justice Department's interpretation of the many vesting and
delegation provisions in the organic statutes of various
departments, few positions would remain vacant. This fact,
combined with the lack of an effective enforcement process,
would give the President no reason to comply with the Vacancies
Act. The court seems not to understand the fundamental purpose
of the Vacancies Act, which is not to ensure the legality of
the actions of acting officials, but rather to limit the power
of the President to name acting officials, as well as the
length of service of those officials.
If the Constitution or Congress requires that an office be
held only by a person appointed by the President by and with
the advice and consent of the Senate, then unless legislation
provides to the contrary, only a person the President has
nominated for that position and who has received Senate
confirmation may fill the position. The President has the duty
to take care that the law be faithfully executed, and that duty
includes adherence to Article II. He does not have the power to
execute the law himself when Congress has given statutory
duties to lower-level officials in the executive branch. Nor
can he name temporary officers of his unfettered choice. That
is why the Vacancies Act or other statutes providing for the
temporary filling of a specific position are the exclusive
authority setting forth the procedures by which acting
officials can serve, with the exception only of the President's
power to make appointments during the recess of the Senate. The
court's opinion overlooks this central concept. The Vacancies
Act does recognize that when vacancies arise in those
positions, it may be necessary, due to time constraints on the
nomination and confirmation processes, for someone who has not
received Senate confirmation for that particular post to serve
temporarily to keep the government functioning. But the
Vacancies Act requires that those acting officers be either (1)
first assistants or (2) persons who have already received
Senate confirmation for some other post and are selected by the
President to be the acting officer.
The court did not reach the question whether the OTS
Director's designation of the first acting director satisfied
the Vacancies Act. For the court, any error was harmless in
light of the legality of the second acting director's
appointment under the Vacancies Act, and the ratification by
the second acting officer of any actions taken by the first
acting director. The Committee also finds that this portion of
the court's position demands legislative response. First, it is
constitutionally unacceptable for any acting official to serve
for four years, especially an officer ``appointed'' not by the
President, nor by a department head, but a mere agency head.
TheAppointments Clause limits appointing powers to hold
individuals accountable for their selections. Second, if any subsequent
acting official or anyone else can ratify the actions of a person who
served beyond the length of time provided by the Vacancies Act, then no
consequence will derive from an illegal acting designation. This result
also undermines the constitutional requirement of advice and consent.
In short, in light of various administrations'
noncompliance with the Vacancies Act and a recent court
decision undermining its operation, it is imperative that
Congress enact legislation to restore constitutionally mandated
procedures that must be satisfied before acting officials may
serve in positions that require Senate confirmation. The issue
is not simply the prerogative of the Senate. Like other
structural constitutional provisions, the Appointments Clause
was designed to protect the liberty of the people. Although the
President has the sole power to nominate, as a single officer
may feel a greater sense of duty in selecting an individual for
consideration to a particular post, the ``the necessity of [the
Senate's] concurrence would have a powerful, though in general
a silent operation. It would be an excellent check upon a
spirit of favoritism in the President, and would tend greatly
to preventing the appointment of unfit characters from State
prejudice, from family connection, from personal attachment, or
from a view to popularity. And, in addition to this, it would
be an efficacious source of stability in the administration.''
Federalist LXXVI (Hamilton). Legislation is needed to restore
these goals of the Founders.
IV. Legislative History of S. 2176
The Federal Vacancies Reform Act of 1998 was introduced as
S. 2176 in the Senate on June 16, 1998 by Senators Fred
Thompson, Robert C. Byrd, Strom Thurmond, Trent Lott, and
William Roth. Introduction of S. 2176 followed the March 16,
1998 introductions of S. 1761, the Federal Vacancies Compliance
Act, by Senator Byrd and S. 1764, the Vacancies Clarification
Act, by Senators Thurmond and Lott. The latter two bills sought
to enforce the Vacancies Act through withholding the pay of any
acting officer who exceeded the time period provided by the
Vacancies Act, and S. 1764 specifically provided that the time
period for acting service ran from the date of the vacancy. In
addition, both bills made the Vacancies Act supersede other
laws governing the temporary service of non-confirmed
officials, ending the argument that statutes vesting in
department heads the general authority to delegate powers to
other officials provided an alternative method of empowering
acting officials apart from the Vacancies Act. Both bills also
created a reporting mechanism to the President, the General
Accounting Office, and the Congress on the length of time that
each acting official had served.
A hearing was held at the Governmental Affairs Committee on
oversight of compliance with the Vacancies Act on March 18,
1998. Senator Thompson chaired the hearing, which addressed the
general issues of noncompliance with the law, as well as the
legislative proposals that had by then been introduced. The
following witnesses provided testimony: Senator Robert C. Byrd,
State of West Virginia; Joseph N. Onek, Principal Deputy
Associate Attorney General, Department of Justice, accompanied
by Daniel Koffsky, Special Counsel, Office of Legal Counsel,
Department of Justice; Joan M. Hollenback, Associate General
Counsel, General Accounting Office; Senator Strom Thurmond,
State of South Carolina; Michael J. Gerhardt, Professor of Law,
Case Western Reserve University; Morton Rosenberg, Specialist
in American Public Law, Congressional Research Service; and
Paul C. Light, Director, Public Policy Program, The Pew
Charitable Trusts.
All of the witnesses but Messrs. Onek and Koffsky supported
legislation that would overturn the Justice Department's
arguments of exemption from the Vacancies Act and that would
create an enforcement mechanism. Senator Byrd also pointed out
the Senate's responsibility to demand strict compliance with
the Vacancies Act from the Administration. He expressed his
hope that the Senate would make the Vacancies Act ``so tight,
so air-tight, that no department can find a crack or crevice
anywhere through which to creep.'' He expressed his view that
the Committee could draft legislation to address the problem
other than S. 1761. Ms. Hollenbeck provided reasons why the
Justice Department's interpretation of the Vacancies Act is
contrary to the language and legislative history of both the
Vacancies Act and the Justice Department's organic statute, and
pointed out that Congress' passage of statutes governing
temporary officers in particular governmental positions shows
that Congress knew how to create specific exceptions to the
application of the Vacancies Act. She offered GAO's
recommendation that legislation be passed to explicitly provide
that the Vacancies Act can be superseded only by a statute
providing an alternative means for filling a particular
vacancy. GAO also recommended reporting provisions and the
withholding of pay of acting officials who served in violation
of the Vacancies Act. Mr. Koffsky noted that there are no
statutory duties that are to be performed by assistant
attorneys general.
Senator Thurmond testified to the need to rewrite, not
simply amend, the Vacancies Act. He demonstrated that the 1988
amendments had not solved the problem of excessive service by
acting officials. He also stressed the need to prevent the
Justice Department from arguing that it is exempt from the
Vacancies Act, which he would accomplish by requiring statutes
exempting particular positions from the Vacancies Act to
specifically cite the Vacancies Act. Prof. Gerhardt testified
to the need to change some of the terms of art used in the
Vacancies Act, and suggested lengthening the 120-day time
period. Mr. Rosenberg testified to the errors in the Justice
Department's exemption argument in light of the language of the
Vacancies Act, the Department's organic statute, and its
legislative history. He also spoke of the problem of
transferring assistant secretaries from one position to another
without their undergoing Senate reconfirmation. He recommended
adding an enforcement mechanism to freeze the duties of the
office as they existed on the date of the vacancy after the
120-day period has expired. Mr. Light testified that one of the
problems with noncompliance with the Vacancies Act is the
unnecessary proliferation of political appointees in the
government at a time when total federal employment was
declining.
Following the hearing, Senator Thompson considered whether
to introduce his own legislative proposal. After careful
consideration, he determined to address only the Vacancies Act
issues involved in the Senate's advise and consent powers. The
Committee believes that authorizing committees may wish to
consider whether statutory duties should be given to assistant
secretaries and assistant attorneys general in those
departments in which the only current statutory duty of such
officials is to assist the secretary or the attorney general.
Stafffrom both parties tried to resolve as many issues as
possible. Staff also attempted to respond to the suggestions of the
Justice Department and the White House. S. 2176 reflects these
discussions. The Committee was told informally that the Justice
Department recognizes that the legislation offered effectively prevents
it from arguing that departments with vesting and delegation statutes
are exempt from the Vacancies Act.
V. Committee Action
On June 17, 1998, the Committee held a business meeting at
which S. 2176, the Federal Vacancies Reform Act of 1998, was
considered. Senator Lieberman offered an amendment to retain
existing statutes that by their own terms provide a process for
the filling of specific advice and consent positions, as well
as the statues referenced in S. 2176 as introduced, which
preserved existing statutes that allow the heads of departments
to designate an acting official. That amendment was agreed to
by voice vote.
Senator Glenn offered two amendments. The first amendment
would have reduced the length of time that a first assistant
need serve to be both the acting officer and eligible to be
nominated permanently to the position from 180 of the 365 days
preceding the vacancy to 30 days prior to the vacancy. The
amendment failed on a roll call vote of 6 Yeas (Glenn, Levin,
Lieberman, Akaka by proxy, Durbin, and Cleland) and 8 Nays
(Roth by proxy, Stevens, Collins, Brownback by proxy, Domenici,
Cochran, Nickles by proxy, and Thompson).
Senator Glenn's second amendment would permit the acting
officer to serve even after the 150-day period following the
rejection, withdrawal, or return of the first nomination, once
a second nomination was made. The amendment was agreed to by
voice vote.
Senator Levin offered an amendment to begin the time limit
on the service of acting officers in vacant positions arising
on or in the 60 days after a transitional inauguration day 120
days after the transitional inauguration or the arising of the
vacancy, whichever is later. After Senator Levin agreed to
shorten the additional period to 90 days, the amendment was
agreed to by voice vote.
With no other amendments being offered, Chairman Thompson
moved adoption of S. 2176 as amended. The bill was ordered
favorably reported by a vote of 9 Yeas (Stevens, Collins,
Domenici, Cochran, Glenn, Levin, Lieberman, Cleland, Thompson)
and 1 Nay (Durbin). Senators Roth, Brownback, and Nickles voted
Aye by proxy.
VI. Section-by-Section Analysis
Section 1 states the short title of the legislation--the
``Federal Vacancies Reform Act of 1998.''
Section 2 strikes sections 3345 through 3349 of Title 5 and
replaces the existing law with a reformed version of the
Vacancies Act. The Committee believes that amending existing
legislation, given the ineffectiveness of the 1988 amendments,
may again fail to ensure the exclusivity of the applicability
of the Vacancies Act. To ensure an effective enforcement
mechanism and to overturn the recent decision of the United
States Court of Appeals for the District of Columbia Circuit in
Doolin Security Savings Bank v. Office of Thrift Supervision,
139 F.3d 203 (D.C. Cir. 1998), the Committee believes that
replacement of the existing Vacancies Act is necessary.
Under current law, section 3345 covers heads of executive
agencies, and section 3346 affects ``an officer of a bureau of
an Executive department or military department, whose
appointment is not vested in the head of the department * * *''
Section 2 creates a new section 3345, applicable to all
officers of executive agencies whose appointment to office is
required to be made by the President by and with the advice and
consent of the Senate. References to the term of art ``bureau''
have been eliminated. The purpose of this change is to clearly
make the Vacancies Act applicable to all officers of executive
agencies whose appointments require Senate confirmation. The
Vacancies Act would now apply to such officers in all
departments, regardless of the department or agency's organic
statute.
``Executive agency'' is defined at 5 U.S.C. Sec. 105.
Because the Department of Defense is a department within the
meaning of 5 U.S.C. Sec. 101, the military departments, which
are located in the Department of Defense, are also covered by
this Act, notwithstanding the omission of the term ``military
department'' from current sections 3345 and 3346.
The section applies when an officer in an executive agency
whose appointment is made by the President by and with the
advice and consent of the Senate dies, resigns, or is otherwise
unable to perform the functions and duties of the office. The
law applies when any of those factual situations arises,
regardless of how the situation is characterized. For instance,
the Vacancies Act would apply in situations such as Doolin,
when the first acting director of the Office of Thrift
Supervision was purportedly designated by virtue of the
departing confirmed director's invocation of a statute
providing for his duties to be temporarily delegated in the
director's ``absence.'' Under this legislation, when an acting
officer is to be designated, as opposed to automatically
gaining acting status as a first assistant, only the President
may designate an acting officer in a position that requires
Senate confirmation.
When a vacancy arises, the bill provides an exclusive set
of procedures that may be followed. If the vacant officer has a
first assistant, the first assistant performs the functions and
duties of the office temporarily in an acting capacity, subject
to the time limitations of section 3346. The Committee does not
establish a definition of ``first assistant.'' That term has a
long history of use in the Vacancies Act. As under current law,
the term ``first assistant'' is used to refer to the first
assistant to the ``officer.'' However, the practice under
current law, which would be continued by this bill, is that the
first assistant is actually the first assistant to the vacant
office. Certain officers have first assistants designated by
statute. See, e.g., 28 U.S.C. Sec. 508(a) (``for the purpose of
section 3345 of title 5 the Deputy Attorney General is the
first assistant to the Attorney General.'') Other departments
and agencies have established first assistants by regulation.
The Vacancies Act provides for the automatic performance of the
functions and duties of the vacant office by the first
assistant because such person is often a career official with
knowledge of the office or a Senate-confirmed individual, and
the Committee believes that the routine functions of the office
should be allowed to continue for a limited period of time by
that one person. The provision therefore emphasizes the limit
on presidential power to select an acting officer without that
individual having received Senate confirmation, while
permitting flexibility in the performance of governmental
operations since, if a first assistant exists, the President
need not take any action for an acting official to serve.
If there is no first assistant, or if the President
following the assumption of acting status by the first
assistant, but within the time limits prescribed by section
3346 so chooses, the President (and only the President) may
direct a person who has already received Senate confirmation
for another position to perform the functions and duties of the
office temporarily in an acting capacity, subject to the time
limits of section 3346. This provision allows the President
limited flexibility in appointing temporary officers,
restricting the pool to persons who have already received
Senate confirmation for their current position. If there is no
first assistant, no one is permitted by law to become an acting
officer until the President designates a Senate-confirmed
individual to be the acting officer.
In either case, the acting officer's service is limited to
the time period specified in section 3346. This marks a repeal
of the current statutory provision in both sections 3345 and
3346 that the acting officer ``shall perform the duties of the
office until a successor is appointed or the absence or
sickness stops,'' language that has been a part of each
Vacancies Act since 1792.
Notwithstanding a first assistant on the day of the
vacancy's automatic functioning as the acting officer, such
first assistant who has not served as first assistant for 180
days of the 365 days prior to the vacancy may not serve as the
acting officer if the President nominates that person for
appointment to that position. If the President nominates the
former first assistant, who served for less than 180 of the 365
days preceding the vacancy, to the permanent position, the
first assistant must cease performing the functions and duties
of the office. In that instance, for an acting person to
continue to perform those duties, the President would be
required to designate as the acting officer a person who has
received Senate confirmation to another post, who can serve as
the acting officer for the remainder of the time period
established under section 3346 that was not consumed by the
first assistant.
A first assistant who is a career person will ordinarily
have served more than 180 days as first assistant at the time
the vacancy arises. Such a person will be able to serve both as
the acting officer and as the permanent nominee. The 180-day
requirement is not confined to the 180 days immediately
preceding the vacancy, as, for instance, the first assistant
may have been ill for part of that period. The President's
power to nominate is not disturbed in any way; however, if he
chooses to nominate a brief-serving first assistant, that
person may no longer serve as the acting officer. The President
would retain his existing power to designate first assistants
to those officers where he currently enjoys such power. The
Committee believes that the length of service of the first
assistant eligible to be both the nominee and the acting
officer should be sufficiently long to prevent manipulation of
first assistants to include persons highly unlikely to be
career officials.
With respect to a vacancy in the office of Attorney
General, 28 U.S.C. Sec. 508 will remain applicable. That
section ensures that Senate confirmed Justice Department
officials will be the only persons eligible to serve as Acting
Attorney General.
The new section 3346 limits the length of the acting
officer's service to 150 days, beginning on the date the
vacancy occurs. The Committee believes that while the
background check process takes no longer today than in 1988,
when the Vacancies Act limitation was set at 120 days, the
vagaries of the vetting and nomination process now make 150
days a more realistic time limit. Even if there is no first
assistant, and the President declines to designate a Senate-
confirmed person to be the acting person, the 150-day period
begins to run. Thus, the designated person would serve for 150
days less the time that elapsed between the vacancy and the
designation. If the vacancy arises while the Senate is in
adjournment sine die, and thus the acting officer begins to
serve during such period, the 150-day period is to begin on the
date that the Senate first reconvenes. The only time this
provision is relevant is when the Senate-confirmed person dies,
resigns, or becomes ineligible to serve when the Senate is in
adjournment sine die.
The 150 days is a maximum period, but an acting officer
need not serve the full 150 days. Besides the obvious ending of
service within 150 days if a nominee is confirmed in that time,
the Vacancies Act also applies to the beginning of an inability
of the applicable officer to serve. When that officer is again
eligible to resume service, he or she may return to the office,
thus ending the service of the acting officer.
The 150 days runs from the vacancy, ``vacancy'' referring
to the death, resignation, or beginning of inability to serve
of the Senate-confirmed officer. This meaning of ``vacancy''
applies each time it is used in the legislation. When the
acting person's 150 days expires, the position again becomes
vacant, but there is no ``vacancy'' that permits another person
to serve as acting for another 150 days. Otherwise, a string of
acting officials could serve for 150 days. That has never been
the understanding of the functioning of the Vacancies Act, and
the Committee reaffirms that there is only one vacancy that
triggers the 150 days.
An acting officer may die or resign. In that event, the
first assistant, if there is one, or a new presidential
designee of a Senate-confirmed officer may become the acting
officer, limited in service as acting officer to 150 days less
the time of service of the first acting officer. No one else
may serve as acting officer. Once again, that means that if
there is no first assistant, and no presidential designation,
no one may serve as acting officer. The prohibition on an
acting officer who was first assistant for less than 180 days
of the 365 days prior to the vacancy becoming the nominee for
the position would still be applicable, since the original
vacancy, not the subsequent departure of the acting officer, is
the measuring event.
Under new section 3346(a)(2), and subject to section
3346(b), an acting officer may serve more than 150 days if a
first or second nomination is submitted to the Senate, and may
serve while that nomination is pending from the date the
nomination is submitted. The acting officer may serve even if
the nomination is submitted after the 150 days has passed
although, as discussed below, the acting officer may not serve
between the 151st day and the day the nomination is submitted.
The Committee extends the time period for acting service so as
to create an incentive for the President to submit a
nomination. The submission of nominations also will lead to a
reduction in the number of acting officials, a goal the
Committee finds highly desirable.
The statutory language refers to ``[t]he person serving as
an acting officer as described under section 3345.'' The
Committee chose this wording deliberately. That is the only
person eligible to be the acting officer, whether during the
150 days or upon submission of a nomination. The same
considerations apply to the bill's references to ``the person''
in subsections (b) and (c).
If the first nomination for the office is rejected by the
Senate, withdrawn, or returned to the President by the Senate,
the person may continue to serve as the acting officer for no
more than 150 days after the date of such rejection,
withdrawal, or return. ``Return'' refers to Senate Rule XXXI,
which provides that, ``[I]f the Senate shall adjourn or take a
recess for more thanthirty days, all nominations pending and
not finally acted upon at the time of taking such adjournment or recess
shall be returned by the Secretary to the President, and shall not
again be considered unless they shall again be made to the Senate by
the President.'' This provision allows the office to be temporarily
filled by ``the person'' who was originally eligible to be the acting
officer at the time the vacancy arose while the President is provided
150 days to submit a second nomination.
Notwithstanding the 150-day limit on service of an acting
officer following the rejection, withdrawal, or return of a
first nomination, ``the person serving as the acting officer''
may serve longer than 150 days if, in the cases of rejection or
withdrawal of the first nominee, a second nomination of a
different individual for the office is submitted to the Senate.
If the second nomination is submitted after more than 150 days
after the rejection, withdrawal or return of the first
nomination, the provisions of revised section 3348 will apply
until the second nomination is submitted. If the second nominee
is confirmed within 150 days of the nomination, the term of the
acting officer ceases. In the case of a return, the second
nomination could be of the same individual first nominated. The
``person serving as the acting officer'' may serve for 150 days
following the rejection, withdrawal, or rejection of the second
nomination. However, after that 150-day period has elapsed, if
no permanent nominee has been confirmed, the provisions of
revised section 3348 apply.
The revised section 3347 provides that the Vacancies Reform
Act applies to any office of an executive agency (including the
Executive Office of the President) for which appointment is
required to be made by the President by and with the advice and
consent of the Senate. The section does allow temporary
appointments to be made other than through the Vacancies Reform
Act in three narrowly delineated exceptions. First, where
Congress provides that a statutory provision expressly provides
that it supersedes the Vacancies Reform Act, the other statute
will govern. But statutes enacted in the future purporting to
or argued to be construed to govern the temporary filling of
offices covered by this statute are not to be effective unless
they expressly provide that they are superseding the Vacancies
Reform Act.
Second, the bill retains existing statutes that are in
effect on the date of enactment of the Vacancies Act of 1998
that expressly authorize the President, or the head of an
executive department to designate an officer to perform the
functions and duties of a specified office temporarily in an
acting capacity, as well as statutes that expressly provide for
the temporary performance of the functions and duties of an
office by a particular officer or employee. (This includes
statutes that provide for an automatic designation, unless the
President designates another official). The Committee is aware
of the existence of statutes specifically governing a vacancy
in 41 specific offices, 40 of which would be retained by this
bill:
1. Administrator, Drug Enforcement Administration (5
U.S.C. Reorg. Plan No. 2 of 1973) (two alternatives);
2. Administrator, Environmental Protection Agency (5
U.S.C. Appendix 1);
3. Administrator, Federal Aviation Administration (49
U.S.C. Sec. 106(I));
4. Administrator, General Services Administration (40
U.S.C. Sec. 751(c));
5. Administrator, National Oceanic and Atmospheric
Administration (5 U.S.C. Appendix 1);
6. Administrator, Small Business Administration (15
U.S.C. Sec. 633(b)(1));
7. Archivist, National Archives and Records
Administration (44 U.S.C. Sec. 2103(c));
8. Attorney General (28 U.S.C. Sec. 508(a));
9. Attorney General (28 U.S.C. Sec. 508(b));
10. Chairman, Joint Chiefs of Staff (10 U.S.C.
Sec. 154(d));
11. Chairman, Joint Chiefs of Staff (10 U.S.C.
Sec. 154(e));
12. Chief Judge, Court of Veterans Appeals (38 U.S.C.
Sec. 7254(d));
13. Chief of Naval Operations (10 U.S.C.
Sec. 5035(d)(2));
14. Chief of Staff of the Air Force (10 U.S.C.
Sec. 8034(d)(2));
15. Chief of Staff of the Army (10 U.S.C.
Sec. 3034(d)(2));
16. Commandant of the Marine Corps (10 U.S.C.
Sec. 5044(d)(2));
17. Commissioner, Social Security Administration (42
U.S.C. Sec. 902(b)(4));
18. Comptroller General (31 U.S.C. Sec. 703(c));
19. Director, Office of Management and Budget (31
U.S.C. Sec. 502(f));
20. Director, U.S. Arms Control and Disarmament
Agency (22 U.S.C. Sec. 2563);
21. Director, U.S. Information Agency (5 U.S.C.
Appendix 1);
22. Director, U.S. International Development
Cooperation Agency (5 U.S.C. Appendix 1);
23. General Counsel, Department of the Treasury (31
U.S.C. Sec. 301(f)(1));
24. General Counsel, National Labor Relations Board
(29 U.S.C. Sec. 153(d));
25. President, Export-Import Bank (12 U.S.C.
Sec. 635a(b));
28. Public Printer, Government Printing Office (44
U.S.C. Sec. 304);
29. Secretary of Defense (10 U.S.C. Sec. 132(b));
30. Secretary of Education (20 U.S.C. Sec. 3412(a)(1)
(two alternatives);
31. Secretary of Energy (42 U.S.C. Sec. 7132(a)) (two
alternatives);
32. Secretary of Health and Human Services (5 U.S.C.
Appendix 1) (two alternatives);
33. Secretary of Labor (29 U.S.C. Sec. 552);
34. Secretary of Transportation (49 U.S.C.
Sec. 102(c)(2));
35. Secretary of Transportation (49 U.S.C.
Sec. 102(e));
36. Secretary of the Treasury (31 U.S.C.
Sec. 301(c)(2));
37. Secretary of Veterans Affairs (38 U.S.C.
Sec. 304);
38. Special Counsel, Immigration-Related Unfair
Employment Practices (8 U.S.C. Sec. 1324b(c)(1));
39. United States Attorney (28 U.S.C. Sec. 546(a)-
(d)); and
40. United States Marshal (28 U.S.C. Sec. 562(a)-
(b)).
A statute, 42 U.S.C. Sec. 206(a), provides that the Surgeon
General shall assign one commissioned officer from the Regular
Corps to act as Surgeon General in the event of disability or
vacancy in that office. The language of this bill does not
retain this statutory means for filling a vacancy in a specific
position.
Most of these retained statutes do not place time
restrictions on the length of an acting officer. The various
authorizing committees may choose in the future to reexamine
whether these positions should continue to be filled through
the existing procedure, or whether it would be advisable to
repeal those statutes in favor of the procedures contained in
the Vacancies Reform Act. The Committee believes that some of
these statutes may have been passed without knowledge of the
Vacancies Act. In any event, even with respect to the specific
positions inwhich temporary officers may serve under the
specific statutes this bill retains, the Vacancies Act would continue
to provide an alternative procedure for temporarily occupying the
office.
The third exception to the applicability of the Vacancies
Reform Act to all executive agency offices that are appointed
by the President by and with the advice and consent of the
Senate is the President's constitutional power under Article
II, sec. 2, cl. 3 to make appointments during the recess of the
Senate.
The bill provides that any statutory provision providing
general authority to the head of an executive agency to
delegate or reassign duties within that executive agency is not
a statutory provision that qualifies within the exception
contained in section 3347(a)(2) for existing statutes that
provide for the filling of a vacancy in a specific office. This
provision forecloses the argument raised by the Justice
Department that sections 28 U.S.C. Sec. Sec. 509 and 510,
rather than the Vacancies Act, apply to vacancies in that
department. This provision also forecloses the argument that
similar language of vesting and delegation contained in the
organic statutes of other departments, rather than the
Vacancies Act, applies to those departments.
New section 3348 provides an enforcement mechanism for the
legislation. If the President does not submit a nominee for a
vacant executive agency position requiring the advice and
consent of the Senate within 150 days of the vacancy caused by
the departure of the last Senate-confirmed officer, the
functions and duties of the office can be performed only by the
head of that agency until a nomination is forwarded to the
Senate.
The bill defines ``function or duty'' of the office as
those functions or duties that (1) are established by statute
and are required to be performed only by the applicable
officer; (2) are established by regulation and are required to
be performed only by the applicable officer; (3) were
established by regulation and were required to be performed
only by the applicable officer at any time in the 180 days
preceding the vacancy, notwithstanding any regulation issued
more recently than 180 days before the vacancy occurred that
limits or eliminates any function or duty required to be
performed only by the applicable officer. The functions or
duties of the office that can be performed only by the head of
the executive agency are therefore defined as the non-delegable
functions or duties of the officer as they existed at any point
during the 180 days prior to the death, resignation, or
inability to serve of the last Senate-confirmed person to hold
the applicable office, less any such duties subsequently
limited by statute, but including duties subsequently limited
or repealed by regulation, and including any such duties
subsequently imposed by statute or regulation. Since so many
executive agency positions filled with the advice and consent
of the Senate lack any meaningful statutory duties, and because
internal departmental regulations such as those providing
duties for specific officers can be changed at will without
undergoing the notice and comment process, 5 U.S.C.
Sec. 553(b)(3)(A), the Committee defined the functions and
duties of a particular office to be those that existed at any
point in the 180 days prior to the vacancy and those
subsequently added, but not subtracted. Otherwise, agencies and
departments could avoid the enforcement mechanism of making the
office vacant by simply issuing regulations providing that the
office has no non-delegable duties. The Committee believes that
the duties as established 180 days before the vacancy is the
appropriate period for freezing the duties because in many
instances, the administration will know of an upcoming vacancy.
The bill does not include as duties or functions of the office
those duties that are limited or eliminated by statute after
the date 180 days preceding the vacancy. When Congress shifts
statutory duties from one agency to another, or changes the
statutory underpinnings of a regulation affecting the duties of
an officer, this bill does not extend the life of those
affected regulations. Functions and duties of the office added
by statute or regulation on or after 180 days preceding the
vacancy are defined as functions and duties of the office, and
thus, cannot be performed except by the head of the department
or agency if the vacant office provisions apply.
Subject to section 3347 and a special rule discussed below
when the 150th day is one on which the Senate is not in
session, if 150 days elapses from a vacancy to which this
legislation applies without the President having submitted a
nomination for the vacant office to the Senate, the office
shall remain vacant until the President submits a nomination to
the Senate. After the 151st day until the date the nomination
was made, neither the acting officer nor anyone else could fill
the vacant office. In addition, except in the case of the head
of an executive agency, only the head of that agency himself or
herself could perform any function or duty of the office as
defined in the legislation. Delegable functions of the office
could still be performed by other officers or employees, but
the functions and duties to be performed only by the officer
whose appointment is by the President by and with the advice
and consent of the Senate could be performed solely by the head
of the executive agency. For any such office located within a
department, that would mean that only the head of the
department could perform those functions. All the normal
functions of government thus could still be performed. The
legislation only limits the person who may perform them. The
goal is not to punish or to obstruct, nor to inconvenience for
the purpose of inconveniencing, but, rather, to encourage that
a nomination be forwarded to the Senate after more than
sufficient time for doing so has elapsed. Any inconvenience to
the executive branch can be eliminated instantly by the
President's unilateral decision to make a nomination, for once
such a nomination is made, the acting officer can resume
service, including performing the non-delegable duties of the
office.
If the head of the agency position is vacant for more than
150 days without a nomination being sent to the Senate, the
office is to remain vacant.
If the President does not submit a second nomination to the
Senate within 150 days after the rejection, withdrawal, or
return of the first nomination, the office will remain vacant,
and the non-delegable functions and duties of the office can be
performed only by the head of the executive agency as described
above. If an office is vacant after 150 days after the
rejection, withdrawal, or return of the second nomination, then
the office shall remain vacant until a person is appointed by
the President by and with the advice and consent of the Senate,
and only the head of the executive agency may perform any
function or duty of such office until the Senate has confirmed
a nominee for the office, as described above. This provision
tracks other provisions in the bill that allow the acting
officer to serve once a first or second nomination is made,
even if more than 150 days have elapsed, but do not permit an
additional opportunity for the acting officer to serve in the
event of exceeding the bill's time limits after disposition of
the second nomination.
If the 150th day following the vacancy, following
disposition of a first nomination other than by confirmation,
or following disposition of a second nomination other than by
confirmation falls on a date the Senate is not in session, then
the first day the Senate is next in session and receiving
nominations shall be deemed to be the last day of such period.
To enforce section 3348's vacant office and performance of
duties and functions of the office only by the agency head
provisions be enforced, any function or duty of the office
taken by a person who fills that vacancy despite the vacant
office provision or who, not being the agency head, performs
such a function duty without filling the office, shall be of no
force or effect. Such actions cannot be made to have force or
effect through ratification. For example, the successor in the
office by virtue of his appointment by the President by and
with the advice and the consent of the Senate may not ratify
the actions of a person who filled the office in violation of
the legislation's provisions or who, not being the agency head,
performed nondelegable duties of the office. A lawfully serving
acting officer cannot ratify the actions of a temporary officer
whose service does not comply with the Vacancies Reform Act.
The agency head may not ratify an action that is of no force or
effect under this legislation that was performed by another
official. Nor under well-established principles of
constitutional law may the President ratify actions taken by
officials that the law has provided shall be performed solely
by lower-level executive branch officials. The Committee
expects that litigants with standing to challenge purported
agency actions taken in violation of these provisions will
raise noncompliance with this legislation in a judicial
proceeding challenging the lawfulness of the agency action. It
is concerned that the ratification approach taken by the court
in Doolin would render enforcement of the Vacancies Reform Act
a nullity in many instances.
Section 3348 does not apply to the General Counsel of the
National Labor Relations Board, the General Counsel of the
Federal Labor Relations Authority or any inspector general
appointed by the President, by and with the advice and consent
of the Senate. Although the Committee believes that it has
retained the specific statute that governs vacancies in the
office of general counsel of the National Labor Relations
Board, the Committee desires to make certain that the vacant
office provisions do not apply to that position or its
equivalent at the Federal Labor Relations Authority. These are
two unusual positions that require appointment by the President
by and with the advice and consent of the Senate. The positions
are within multimember commissions but are not members of those
commissions. Congress provided for Senate confirmation for
these positions because it demands that these officials be
independent of the commissioners. Specifically, it wanted to
separate the official who would investigate and charge
potential violations of the underlying regulatory statute from
the officials who would determine whether that statute had
actually been violated. If the non-delegable duties of these
general counsel were somehow to be performed by the
commissioners, that policy would be obliterated. Thus, section
3345 applies to all advice and consent positions, but section
3347 retains the existing statutory procedure for filling a
vacancy in the general counsel of the NLRB. Section 3348 states
clearly its inapplicability to the general counsel of the NLRB.
Under current law, the general counsel of the FLRA is not
covered by the Vacancies Act because of the peculiarity that
the position requires the advice and consent of the Senate but
is not the head of an agency. Whereas the Justice Department
has argued that its non-coverage under the Vacancies Act means
that other provisions govern acting appointments for its
offices, the Department has concluded that no statute permits
an acting general counsel at the FLRA. Accordingly, in recent
years, when that position has become vacant, no one has
performed its duties until a permanent successor has been
confirmed by the Senate. Since one of the duties of that
position is to institute proceedings, this has resulted
essentially in the cessation of the agency's functions. S. 2176
covers the general counsel of the FLRA under sections 3345 and
3346, permitting an acting officer to serve in case of a
vacancy, but excludes the position from the enforcement
mechanisms of section 3348 to preserve the independence of the
position.
Similarly, agency inspectors general are to be independent
of the agencies to which they are assigned. Inspectors general
are to investigate mismanagement in their agency, and often may
be critical of the agency head. If an inspector general whose
appointment was made by the President by and with the advice
and consent of the Senate were to have his functions performed
by the agency head, the agency head might be delighted not to
perform them vigilantly. Thus, section 3348 will not apply to
this class of inspectors general.
Revised section 3349 of the bill requires the head of each
executive agency to submit to the Comptroller General and to
each house of Congress notification of vacancies in positions
in their agencies requiring Senate confirmation, the name of
any person serving in an acting capacity and the date such
service began as soon as such service began, the name of any
person nominated to the Senate to fill the vacancy as soon as
such nomination is submitted, and the date of a rejection,
withdrawal, or return of any nomination as soon as such
rejection, withdrawal, or return occurs. If the Comptroller
General makes a determination that an officer is serving longer
than the 150-day period, including the applicable exceptions to
such period in the legislation, the Comptroller General is to
report such determination to the relevant committees listed in
the legislation, the President, and the Office of Personnel
Management. This function is informational only and does not
provide the Comptroller General with any function properly to
be performed only by an executive branch official. The
Committee designated the recipients of the report so that
appropriate action can be taken by the individuals who are
informed of possible violations of the law.
New section 3349a extends the 150-day period in sections
3346 and 3348 for vacancies that exist on or that arise within
60 days after a presidential inaugural transition. In effect,
the 150-day period becomes 240 days in this circumstance,
running from the later of the date the vacancy arose or the
transitional inauguration day. The bill defines a presidential
inaugural transition as a date on which any person swears or
affirms the oath of office as President, if such person was not
the President on the date preceding the date of the swearing or
affirming such oath of office. The time limit is extended in
this circumstance because a new president will have essentially
all positions in the executive branch requiring Senate
confirmation to fill when he assumes office and may require
additional time to nominate individuals to fill them. By the
time the 240 days has run, the President would have confirmed
sufficient of his own Senate-confirmed officials to designate
as acting officers if he chose to exercise his power under
section 3346, and that could continue to serve as the acting
officer if a permanent nominee were submitted to the Senate.
The provision covers vacancies in positions requiring Senate
confirmation that arise in the 60 days following the
presidential inauguration transition because each department
keeps a Senate-confirmed person into a new administration for a
short time in case vacancies in that department are not able to
be filled as quickly as anticipated. The filling of those
holdover offices should also be subject to the 90-day tolling
of the 150-day period.
New section 3349b retains existing statutes that provide,
with respect to any independent establishment headed by a
single officer, that that officer can serve after the
expiration of his term and until a successor is appointed or a
specified period of time has elapsed. Whereassection 3347
retains those statutes that provide a means of succession for an acting
person to perform the duties of a specified office, section 3349b
retains statutes affecting specific independent establishments headed
by a single officer that do not provide for an acting officer, but
which instead permit the officer to serve until his successor is
appointed or for a specified period of time. These statutes govern the
Chairman of the National Endowment for the Arts (20 U.S.C.
Sec. 954(b)(2)), the Chairman of the National Endowment for the
Humanities (20 U.S.C. Sec. 956(b)(2)), the Special Counsel of the
Office of Special Counsel (5 U.S.C. Sec. 1211(b)), and the Commissioner
of the Social Security Administration (42 U.S.C. Sec. 901(a)(3)).
Independent establishments headed by a single officer previously
covered by the Vacancies Act continue to be so covered under this
legislation.
New section 3349c provides that the Vacancies Reform Act
shall not apply to any member appointed by the President by and
with the advice and consent of the Senate to a board,
commission, or similar entity that is composed of multiple
members, and governs an independent establishment or Government
corporation. The Committee believes that this has always been
the case with the respect to the Vacancies Act and wishes to
avoid any confusion that might result from the enactment of a
replacement statute on this point. Thus, vacancies in these
positions are not covered by this legislation. Section 3349c
excludes commissioners of the Federal Energy Regulatory
Commission from the Vacancies Act as well, since it is an
anomaly: the only multi-member independent agency that Congress
has not placed in an independent establishment but in a
department. Subsection (b) of section 3349c makes technical and
confirming changes.
Section 3 of the legislation specifies its effective date.
The legislation takes effect on the date of enactment, and
shall apply to any office that becomes vacant after the date of
enactment of this legislation or that is vacant on that date,
although, as to the latter, its provisions shall apply as
though such office first became vacant on that date. Thus, the
150-day period for those offices that are vacant on the date
the legislation is enacted begins on the date the legislation
is enacted, rather than the date the vacancy arose.
VII. Regulatory Impact Statement
Paragraph 11(b)(1) of rule XXVI of the Standing Rules of
the Senate requires that each report accompanying a bill
evaluate ``the regulatory impact which would be incurred in
carrying out this bill.''
The enactment of this legislation will not have significant
regulatory impact.
VIII. Cost Estimate of the Legislation
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 1, 1998.
Hon. Fred D. Thompson,
Chairman, Committee on Governmental Affairs, U.S. Senate, Washington,
DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2176, the Federal
Vacancies Reform Act of 1998.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is John R.
Righter.
Sincerely,
June E. O'Neill, Director.
Enclosure.
congressional budget office cost estimate
S. 2176--Federal Vacancies Reform Act of 1998
S. 2176 would amend the Vacancies Act to clarify
requirements relating to vacancies in and appointments to
executive branch positions, including limitations on the amount
of time that unconfirmed appointees can remain in office. It
also would require the head of each executive branch agency to
submit certain information regarding vacancies and appointments
to the General Accounting Office. CBO estimates that enacting
S. 2176 would have no significant impact on the federal budget.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: S. 2176
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act and would have no
impact on state, local, or tribal governments.
Estimate prepared by: John R. Righter.
Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.
IX. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law with no change
proposed is shown in roman):
UNITED STATES CODE
TITLE 5, GOVERNMENT ORGANIZATION AND EMPLOYEES
TABLE OF CONTENTS
PART III--EMPLOYEES
Subpart B--Employment and Retention
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
[Subchapter III--Details
[3341. Details; within Executive or military departments.
[[3342. Repealed.]
[3343. Details; to international organizations.
[3344. Details; administrative law judges.
[3345. Details; to office of head of Executive agency or military
department.
[3346. Details; to subordinate offices.
[3347. Details; Presidential authority.
[3348. Details; limited in time.
[3349. Details; to fill vacancies; restrictions.]
Subchapter III--Details, Vacancies, and Appointments
3341. Details; within Executive or military departments.
[3342. Repealed.]
3343. Details; to international organizations.
3344. Details; administrative law judges.
3345. Acting officer.
3346. Time limitation.
3347. Application.
3348. Vacant office.
3349. Reporting of vacancies.
3349a. Presidential inaugural transitions.
3349b. Holdover provisions relating to certain independent
establishments.
3349c. Exclusion of certain officers.
PART III--EMPLOYEES
Subpart B--Employment and Retention
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
[Subchapter III--Details]
Subchapter III_Details, Vacancies, and Appointments
[Sec. 3345. Details; to office of head of Executive agency or military
department
[When the head of an Executive agency (other than the
General Accounting Office) or military department dies,
resigns, or is sick or absent, his first assistant, unless
otherwise directed by the President under section 3347 of this
title, shall perform the duties of the office until a successor
is appointed or the absence or sickness stops.]
Sec. 3345. Acting officer
(a) If an officer of an Executive agency (including the
Executive Office of the President, and other than the General
Accounting Office) whose appointment to office is required to
be made by the President, by and with the advice and consent of
the Senate, dies, resigns, or is otherwise unable to perform
the functions and duties of the office--
(1) the first assistant of such officer shall perform
the functions and duties of the office temporarily in
an acting capacity, subject to the time limitations of
section 3346; or
(2) notwithstanding paragraph (1), the President (and
only the President) may direct a person who serves in
an office for which appointment is required to be made
by the President, by and with the advice and consent of
the Senate, to perform the functions and duties of the
office temporarily in an acting capacity, subject to
the time limitations of section 3346.
(b) Notwithstanding section 3346(a)(2), a person may not
serve as an acting officer for an office under this section,
if--
(1) on the date of the death, resignation, or
beginning of inability to server of the applicable
officer, such person serves in the position of first
assistant to such officer;
(2) during the 365-day period preceding such date,
such person served in the position of first assistant
to such officer for less than 180 days; and
(3) the President submits a nomination of such person
to the Senate for appointment to such office.
(c) With respect to the office of the Attorney General of
the United States, the provisions of section 508 of title 28
shall be applicable.
[Sec. 3346. Details; to subordinate offices
[When an officer of a bureau of an Executive department or
military department, whose appointment is not vested in the
head of the department, dies, resigns, or is sick or absent,
his first assistant, unless otherwise directed by the President
under section 3347 of this title, shall perform the duties of
the office until a successor is appointed or the absence or
sickness stops.]
Sec. 3346. Time limitation
(a) The person serving as an acting officer as described
under section 3345 may serve in the office--
(1) for no longer than 150 days beginning on the date
the vacancy occurs; or
(2) subject to subsection (b), once a first or second
nomination for the office is submitted to the Senate
from the date of such nomination, for the period that
the nomination is pending in the Senate.
(b)(1) If the first nomination for the office is rejected
by the Senate, withdrawn, or returned to the President by the
Senate, the person may continue to serve as the acting officer
for no more than 150 days after the date of such rejection,
withdrawal, or return.
(2) Notwithstanding paragraph (1), if a second nomination
for the office (of a different person than first nominated in
the case of a rejection or withdrawal) is submitted to the
Senate after the rejection, withdrawal, or return of the first
nomination, the person serving as the acting officer may
continue to serve--
(A) until the second nomination is confirmed; or
(B) for no more than 150 days after the second
nomination is rejected, withdrawn, or returned.
(c) If a person begins serving as an acting officer during
an adjournment of the Congress sine die, the 150-day period
under subsection (a) shall begin on the date that the Senate
first reconvenes.
[Sec. 3347. Details; Presidential authority
[Instead of a detail under section 3345 or 3346 of this
title, the President may direct the head of another Executive
department or military department or another officer of an
Executive department or military department, whose appointment
is vested in the President, by and with the advice and consent
of the Senate, to perform the duties of the office until a
successor is appointed or the absence or sickness stops. This
section does not apply to a vacancy in the office of Attorney
General.]
Sec. 3347. Application.
(a) Sections 3345 and 3346 are applicable to any office of
an Executive agency (including the Executive Office of the
President, and other than the General Accounting Office) for
which appointment is required to be made by the President, by
and with the advice and consent of the Senate, unless--
(1) another statutory provision expressly provides
that the such provision supersedes sections 3345 and
3346;
(2) a statutory provision in effect on the date of
enactment of the Federal Vacancies Reform Act of 1998
expressly--
(A) authorizes the President, a court, or the
head of an Executive department, to designate
an officer or employee to perform the functions
and duties of a specified office temporarily in
an acting capacity; or
(B) designates an officer or employee to
perform the functions and duties of a specified
office temporarily in an acting capacity; or
(3) the President makes an appointment to fill a
vacancy in such office during the recess of the Senate
pursuant to clause 3 of section 2 of article II of the
United States Constitution.
(b) Any statutory provision providing general authority to
the head of an Executive agency (including the Executive Office
of the President, and other than the General Accounting Office)
to delegate duties to, or to reassign duties among, officers or
employees of such Federal agency, is not a statutory provision
to which subsection (a)(2) applies.
[Sec. 3348. Details; limited in time
[(a) A vacancy caused by death or resignation may be filled
temporarily under section 3345, 3346, or 3347 of this title for
not more than 120 days, except that--
[(1) if a first or second nomination to fill such
vacancy has been submitted to the Senate, the position
may be filled temporarily under section 3345, 3346, or
3347 of this title--
[(A) until the Senate confirms the
nomination; or
[(B) until 120 days after the date on which
either the Senate rejects the nomination or the
nomination is withdrawn; or
[(2) if the vacancy occurs during an adjournment of
the Congress sine die, the position may be filled
temporarily until 120 days after the Congress next
convenes, subject thereafter to the provisions of
paragraph (1) of this subsection.
[(b) Any person filling a vacancy temporarily under section
3345, 3346, or 3347 of this title whose nomination to fill such
vacancy has been submitted to the Senate may not serve after
the end of the 120-day period referred to in paragraph (1)(B)
or (2) of subsection (a) of this section, if the nomination of
such person is rejected by the Senate or is withdrawn.]
Sec. 3348. Vacant office
(a) In this section--
(1) the term ``action'' includes any agency actions
as defined under section 551(13); and
(2) the term ``function or duty'' means any function
or duty of the applicable office that--
(A)(i) is established by statute; and
(ii) is required by statute to be performed
by the applicable officer (and only that
officer); or
(B)(i)(I) is established by regulation; and
(II) is required by such regulation to be
performed by the applicable officer (and only
that officer); and
(ii) includes a function or duty to which
clause (I) (I) and (II) applies, and the
applicable regulation is in effect at any time
during the 180-day period preceding the date on
which the vacancy occurs, notwithstanding any
regulation that--
(I) is issued on or after the date
occurring 180 days before the date on
which the vacancy occurs; and
(II) limits any function or duty
required to be performed by the
applicable officer (and only that
officer).
(b) Subject to section 3347 and subsection (c)--
(1) if the President does not submit a first
nomination to the Senate to fill a vacant office within
150 days after the date on which a vacancy occurs--
(A) the office shall remain vacant until the
President submits a first nomination to the
Senate; and
(B) in the case of an office other than the
office of the head of an Executive agency
(including the Executive Office of the
President, and other than the General
Accounting Office), only the head of such
Executive agency may perform any function or
duty of such office, until a nomination is made
in accordance with subparagraph (A);
(2) if the President does not submit a second
nomination to the Senate within 150 days after the date
of the rejection, withdrawal, or return of the first
nomination--
(A) the office shall remain vacant until the
President submits a second nomination to the
Senate; and
(B) in the case of any office other than the
office of the head of an Executive agency
(including the Executive Office of the
President, and other than the General
Accounting Office), only the head of such
Executive agency may perform any function or
duty of such officer, until a nomination is
made in accordance with subparagraph (A); and
(3) if an office is vacant after 150 days after the
rejection, withdrawal, or return of the second
nomination--
(A) the office shall remain vacant until a
person is appointed by the President, by and
with the advice and consent of the Senate; and
(B) in the case of an office other than the
office of the head of an Executive agency
(including the Executive Office of the
President, and other than the General
Accounting Office), only the head of such
Executive agency may perform any function or
duty of such office, until an appointment is
made in accordance with subparagraph (A).
(c) If the last day of any 150-day period under subsection
(b) is a day on which the Senate is not in session, the first
day the Senate is next in session and receiving nominations
shall be deemed to be the last day of such period.
(d)(1) Except as provided under paragraphs (1)(B), (2)(B),
and (3)(B) of subsection (b), an action shall have no force or
effect if such action--
(A)(i) is taken by any person who fills a vacancy in
violation of subsection (b); and
(ii) is the performance of a function or duty of such
vacant office; or
(B)(i) is taken by a person who is not filling a
vacant office; and
(ii) is the performance of a function or duty of such
vacant office.
(2) An action that has no force or effect under paragraph
(1) may not be ratified.
(e) this section shall not apply to--
(1) the General Counsel of the National Labor
Relations Board;
(2) the General Counsel of the Federal Labor
Relations Authority; or
(3) any Inspector General appointed by the President,
by and with the advice and consent of the Senate.
[Sec. 3349. Details; to fill vacancies; restrictions
[A temporary appointment, designation, or assignment of one
officer to perform the duties of another under section 3345 or
3346 of this title may not be made otherwise than as provided
by those sections, except to fill a vacancy occurring during a
recess of the Senate.]
Sec. 3349. Reporting of vacancies
(a) The head of each Executive agency (including the
Executive Office of the President, and other than the General
Accounting Office) shall submit to the Comptroller General of
the United States and to each House of Congress--
(1) notification of a vacancy and the date such
vacancy occurred immediately upon the occurrence of the
vacancy;
(2) the name of any person serving in an acting
capacity and the date such service began immediately
upon the designation;
(3) the name of any person nominated to the Senate to
fill the vacancy and the date such nomination is
submitted immediately upon the submission of the
nomination; and
(4) the date of a rejection, withdrawal, or return of
any nomination immediately upon such rejection,
withdrawal, or return.
(b) If the Comptroller General of the United States makes a
determination that an officer is serving longer than the 150-
day period including the applicable exceptions to such period
under section 3346, the Comptroller General shall report such
determination to--
(1) the Committee on Governmental Affairs of the
Senate;
(2) the Committee on Government Reform and Oversight
of the House of Representatives;
(3) the Committees on Appropriations of the Senate
and House of Representatives;
(4) the appropriate committees of jurisdiction of the
Senate and House of Representatives;
(5) the President; and
(6) the Office of Personnel Management.
Sec. 3349a. Presidential inaugural transitions
(a) In this section, the term ``transitional inauguration
day'' means the date on which any person swears or affirms the
oath of office as President, if such person is not the
President on the date preceding the date of swearing or
affirming such oath of office.
(b) With respect to any vacancy that exists during the 60-
day period beginning on a transitional inauguration day, the
150-day period under section 3346 or 3348 shall be deemed to
begin on the later of the date occurring--
(1) 90 days after such transitional inauguration day;
or
(2) 90 days after the date on which the vacancy
occurs.
Sec. 3349b. Holdover provisions relating to certain independent
establishments
With respect to any independent establishment for which a
single officer is the head of the establishment, sections 3345
through 3349a shall not be construed to affect any statute that
authorizes a person to continue to serve in any office--
(1) after the expiration of the term for which such
person is appointed; and
(2) until a successor is appointed or a specified
period of time has expired.
Sec. 3349c. Exclusion of certain officers
Sections 3345 through 3349b shall not apply to--
(1) any member who is appointed by the President, by
and with the advice and consent of the Senate to any
board, commission, or similar entity that--
(A) is composed of multiple members; and
(B) governs an independent establishment or
Government corporation; or
(2) any commissioner of the Federal Energy Regulatory
Commission.
ADDITIONAL VIEWS
The Committee on Governmental Affairs has a long list of
legislative accomplishments that have enhanced the efficiency
and effectiveness of the Federal government. These milestones
were achieved with bipartisan support in both Democratic and
Republican controlled Administrations and Congresses. The
Vacancies Act should be no exception. As the Majority's Report
well explains, the Vacancies Act is in need of reform. For too
long, the Executive Branch's interpretation and implementation
of that law have stripped it of its original intent and, on
occasion, effectively deprived the Senate of its constitutional
right to partake in the appointment of a number of Federal
officers. Nevertheless, although we share the Majority's desire
to amend the Vacancies Act--and agree with many, if not most,
of the policy choices contained in S. 2176--we write separately
to emphasize a number of concerns we have about the current
draft of the bill. Although these concerns were not sufficient
to prevent us from voting to report the bill out of Committee,
they are nonetheless serious and, we believe, need to be
addressed before the bill is ready for final action on the
Senate floor.
Some of our reservations about the bill are largely
technical, reflecting our concern that the bill, in fact, could
be misinterpreted and fail to do what the Committee intends it
to do. Others are more substantive in nature and rest on our
fear that the Committee's understandable desire to protect the
Senate's constitutional prerogatives may have led it to create
a situation that could prevent the Executive Branch from
efficiently and effectively fulfilling its constitutional
duties to execute the Congress' laws. We discuss these concerns
in detail below. We remain hopeful that, in the bipartisan
spirit in which this legislation has thus far progressed, we
can work out all of them before moving this bill further in the
legislative process.
We are pleased that the Majority included us in the
discussions leading up to the introduction and markup of S.
2176, and we believe that, due to those discussions, agreement
was reached in four significant areas: (1) the time period of
150 days for service by an acting official absent a nomination,
(2) the need for a ``cure'' in the case of a nomination made
subsequent to the expiration of such period to allow an acting
official to resume the functions and duties of the vacant
office, (3) the exclusivity of the Act except in cases in which
Congress makes clear it is specifying an alternative or
supplemental means for filling vacancies, and (4) the necessity
of an enforcement mechanism to encourage nominations to be made
in a timely manner.
While these four areas are addressed in the bill, we remain
concerned that Sec. 3348, the enforcement mechanism, as
drafted, may not operate to achieve our goals. We must be sure
that the operation of this provision does not cause an
unintended shutdown of the Federal agency within which the
vacancy exists due to administrative paralysis and that the
provision is drafted clearly so that its scope, mainly the
extent of government functions and duties it would affect, is
well understood. We must be clear that the non-delegable duties
we intend to have performed only by the agency head in the
event of a vacancy beyond the 150 days without a nomination are
only those expressly vested by law or regulation exclusively in
the vacant position. In this regard, we acknowledge and
appreciate the Majority's statement that ``all the normal
functions ofgovernment thus could still be performed.'' For
example, where a statute or regulation specifies that an Assistant
Secretary for Policy Development is responsible for overseeing policy
development, the development of policy would continue, but if a non-
delegable approval is necessary to implement the policy, that approval
must be performed by the agency head during a vacancy.
One other concept in Sec. 3348 bears emphasis. The non-
delegable duties of an agency head are not addressed in this
legislation because the Committee expects that there will never
be a case where a nomination for these positions is not timely
submitted.
We would like to see serious consideration given to who,
other than the first assistant or another Presidentially-
appointed, Senate confirmed official designated by the
President, as a qualifying acting official. We recognize the
policy of maintaining the continuity and regularity of the
vacated office by allowing a first assistant to automatically
succeed to the position and the policy of allowing any
individual nominated by the President and confirmed by the
Senate to fill any ``advice and consent'' position. However, we
believe that more flexibility is advisable and that our
ultimate goal should be to ensure that the most qualified
individual available fills the position. One possible
alternative would be to allow a third category of individuals
to temporarily fill positions, such as a qualified individuals
who have worked within the agency in which the vacancy occurs
for a minimum number of days and who are of a minimum grade
level.
On related point, we believe the length of service
requirement for first assistants who are nominees should be
reevaluated. Senator Glenn offered an amendment at the
Committee's June 17, 1998 markup to shorten the period required
for an acting official who was a first assistant to be a
nominee. As Senator Glenn noted at markup, this requirement
would preclude service by a first assistant who naturally
ascends to that position from within the agency, who might be a
logical choice to fill the vacancy on a permanent basis. In
considering shortening this requirement, we should strive to
ensure the smooth flow of government activity, not penalize the
individual, the agency or the taxpayers. We reiterate our
preference for shortening this requirement.
We would also like to see a ``safety valve'' provision
considered which would extend the 150-day period for a
temporary appointment for an additional period of time if the
President certifies that it is in the national interest to
suspend or lengthen the period. Such ``interests'' could
include reasons relating to national security, public health
and safety, or financial stability. We recommend that
information be gathered to determine which critical functions
affect such interests.
We believe that special consideration should be given to a
situation in which a new president is being inaugurated. In
such a case, especially when there is a change in the political
party of the new president, there is unlikely, in many cases,
to be a first assistant who, according to the bill's length of
service requirement, would be eligible to both serve as the
acting official and be the nominee. This limits a new
Administration which may want to put its qualified people in
acting positions and nominate them as well. The Senate should
consider whether it is advisable to prohibit this type of
service categorically or whether a more narrow compromise would
be possible. In addition, we should ensure that the extended
time period for temporary appointments at the beginning of a
new Administration \1\ accurately reflects the reality of the
nomination process when a new President assumes office. We
would not want to hamper future Administrations' ability to
become operational as quickly as possible.
---------------------------------------------------------------------------
\1\ The extended time periods provided in Sec. 3349b total 240 days
as the period for temporary appointments in a new Administration. This
time period is applicable to all vacancies that arise from the date of
the inauguration of the new President and for the subsequent 60 days.
---------------------------------------------------------------------------
At markup, the Committee also discussed whether nominations
could be sent up during a recess of the Senate. Specifically,
we believe it is still unclear whether the bill, as written,
would allow the Administration to cure a violation by making a
nomination during recesses of the Senate. While it is clear
that the Senate regularly authorizes itself to accept
Presidential messages during its recesses,\2\ and the President
is permitted to submit nominations to the Senate at any
time,\3\ in practice, nominations are not sent up during
recesses. We are concerned with assuring the smooth functioning
of Government. One of our overriding concerns in reforming the
Vacancies Act should be to ensure that we are not overburdening
an agency head with the non-delegable responsibilities of other
positions where such a situation can be avoided. We urge the
Senate to consider remedying this situation by allowing the
President to effectively notice the Senate with a letter of
intent including the name of a nominee and a statement that he
intends to nominate that person when the Senate reconvenes. By
allowing such letter, the Senate would allow the President to
exercise good faith where he wants to avoid using a recess
appointment.\4\
---------------------------------------------------------------------------
\2\ See 139 CR 8 (1993), 141 CR S9 (daily ed. Jan. 4, 1995), 143 CR
S8 (daily ed. Jan. 7, 1997).
\3\ See Floyd M. Riddick and Alan S. Frumin, Riddick's Senate
Procedure, p. 949 (Rev. Ed. 1992).
\4\ President Clinton has exercised his Constitutionally mandated
recess appointment power 45 times in five years, President Bush made 78
recess appointments in four years and President Reagan made 239 in
eight years.
---------------------------------------------------------------------------
Finally, we would hope that consideration will be given to
increasing the one-day requirement of Sec. 3348(c). While we
are pleased that a recess will toll the temporary appointment
period, to guard against an Administration's inadvertently
missing the one-day window and certain functions and duties
unnecessarily being delegated to the agency head, we recommend
adding two days to the requirement that the President submit a
nomination the day the Senate reconvenes.
As mentioned above, there are several other issues of
concern to us which we believe are of a technical nature. While
they are important issues in that their resolution affects the
way a new law could be interpreted, because there is agreement
between Majority and Minority staffs to aim to address these
issues in a Managers' Amendment as the bill is considered by
the full Senate, such issues will not be enumerated here. It is
our hope that all of our concerns will be addressed in future
discussions before S. 2176 is presented for debate on the
Senate floor.
We cannot leave the topic of the process by which the
President nominates federal officials without touching on the
process by which the Senate confirms them. It is getting
increasingly difficult to attract the best and brightest to
government service, and those who serve in Presidentially-
appointed, Senate confirmed positions are doing so for an
average of less than two and a half years. And because the time
period from vacancy through confirmation has become
increasingly lengthy, we must go through this arduous process
often multiple times within a single Administration. We agree
that the Executive Branch too often takes too long to submit
nominations to the Senate and that this delay not only intrudes
upon the Senate's constitutional prerogatives but also impedes
the good functioning of government. At the same time, however,
we would be truly remiss if we failed to acknowledge that blame
in this area does not rest in the Executive Branch alone; the
Senate has frequently declined to exercise its advice and
consent responsibility in a timely and appropriate manner. Too
often, nominations die in Committee, languish on the Executive
Calendar, or simply take months or years to move through this
Chamber. While the Senate remains free to reject the
President's nominees when appropriate, it owes it to both the
Executive, and more importantly, the American people, to
discharge its constitutional duty to offer--and not withhold--
its advice and, where appropriate, timely consent. We hope that
in the future the Senate is willing to commit itself to act to
reform its confirmation process in the same bi-partisan spirit
we expect it to exhibit in enacting this legislation.
John Glenn.
Carl Levin.
Joe Lieberman.
Max Cleland.
Robert Torricelli.
MINORITY VIEWS
While we associate ourselves with the concerns outlined in
the Additional Views of Senator John Glenn, our serious
reservations abut the bill prevents us from supporting this
legislation in its present form. Revisions to the Vacancies Act
must reflect the realities of the nomination and confirmation
process as it have evolved over the last several years.
Furthermore, it is important to recognize the implication of
imposing unrealistic expectations or restrictions on the
process which could force the President to expand the use of
recess appointment authority.
We recognize the need to safeguard the Senate's
constitutional prerogative to advise and consent to nominations
of executive officers, and do not oppose efforts to clarify and
bolster the Vacancies Act as the executive mechanism (with
limited and explicit exception) for the President to designate
officials to temporarily fill vacancies in positions requiring
Senate confirmation. Unfortunately, this bill goes well beyond
that justifiable but limited goals.
We are concerned that this bill would impede the
functioning of the Executive Branch. Concerns about the
inability of Presidents to promptly submit nominees to fill
positions requiring Senate confirmation has been a driving
force prompting periodic reevaluation of Vacancies Act
provisions throughout the last two centuries, including the
present instance. Yet merely adding 30 days to the time
permitted under current law for positions to be temporarily
filled by an acting official is, in our opinion, wholly
inadequate and impractical.
While the White House certainly bears some responsibility
for the time it takes to select and advance nominees, it is a
responsibility that is shared by the Senate. Given that the
protracted, arduous, and unduly politicized Senate confirmation
process contributes to making it increasingly more difficult to
identify, recruit, and screen candidates for Federal
appointments, it is imprudent to impose rigid statutory
deadlines and to limit the persons eligible to serve
temporarily as acting officers in vacant positions. Within
substantial changes, we cannot support this bill.
First, this legislation too narrowly restricts who can
function in an ``acting'' capacity. Section 3345(a)(1) of the
bill can be read to provide that, aside from another Senate-
confirmed Presidential appointee designated by the President,
only the ``first assistant'' to the particular Senate confirmed
officer who dies, resigns or is other unable to perform the
functions and duties of the position, can be an acting officer.
Early in the Administration of a newly-inaugurated President,
virtually the only person who could serve as acting officers
would be the first assistants from the prior Administration,
since transferring another PAS person would merely create a new
vacancy elsewhere. Moreover, the Senate could prolong the
tenure of those holdover officers simply by delaying or failing
to confirm the President's nominee. No President should have to
accept such a state of affairs.
Moreover, mandating that only first assistant or Senate-
confirmed officials are eligible to serve as acting officers
promotes no legitimate public policy. Indeed, this limitation
prevents a President from naming an experienced career employee
as an acting official, in favor of a person lacking broad
experience who was brought into Department by the departing
official. Consequently, the bill could preclude the President
from naming the most qualified person to serve as an acting
officer. In addition, the lack of a first assistant to a
particular office that becomes vacant would leave the position
vacant until such time as the President designates a previously
Senate-confirmed official to temporarily fill that vacancy as
an acting official. Given the tight time period of the Act, we
fail to see why this provision should be so narrowly drawn.
Without any justification based on its institutional interests,
the Senate would do a great disservice by adopting such a
restrictive measure. Therefore, we endorse Senator Glenn's
suggestion that serious consideration be given to establishing
a third category of individuals eligible to temporarily fill
vacant positions.
Second, the unalterable 150 day time limit on service by
acting officers is far too rigid. Indeed, it could impair the
national interest. Circumstances may arise under which the
President is unable to nominate an individual for a particular
office within 150 days of a vacancy. Under this bill, the
office would have to remain vacant even if that vacancy would
undermine national security, impede public health and safety,
threaten financial stability, or interfere with law
enforcement. We believe there should be a flexible ``safety
valve'' available for exceptional situations, whereby the
President could certify to the Senate that a reasonable amount
of additional time is needed to designate the appropriate
nominee and that it is essential for the acting officer to
continue to perform these critical tasks in the interim without
interruption.
Third, while it would not affect this President, experience
has shown that at the beginning of a new Administration,
filling positions in the government requires time far longer
than that specified in this bill. At the outset of a new
Administration, a President must nominate individuals to at
least 320 positions in the 14 executive departments in addition
to appointing hundreds of other employees who do not require
confirmation. The new President cannot possibly make all
required nominations within the 240 days allowed by the bill.
In 1993, when the nominations process was, if anything, simpler
than it is today, the new Administration was able to forward
only 68% of nominations within the first 240 days, leaving 32%
of positions unfilled. Unless this time period is changed, the
next Administration could effectively be facing departmental
shutdowns before the new President can even begin to accomplish
what he was elected to do.
Finally, our concern about these time limitations and the
constraints on who can be appointed is magnified many times by
the enforcement mechanism the bill establishes. It is
essentially a sanction of administrative immobilization.
Section 3348 of the bill specifies that if the President fails
to forward a nomination within the 150-day span following the
occurrence of a vacancy or the withdrawal, rejection, or return
of a first nomination, the office in question must remain
vacant until a nomination is made. No one--apart from the head
of the agency--can perform the functions and duties of the
office. It is imperative that the bill unequivocally ensure
that the affected functions and duties of the office are only
those that are expressly deemed nondelegable by statute or
regulation. Absent that clarity, whole components of federal
agencies would have to stop their work. The potential
bottleneck created by this provision would prevent the
Executive Branch from doing its job. The Senate has tried
before to enforce its policy preferences by shutting down the
federal government. It was a bad idea then, and its still is
now.
As we noted, the Senate bears partial responsibility for
the time it takes to nominate officials from Senate confirmed
positions. To further amplify, this Congress has subjected the
Administration's nominees to unprecedented scrutiny, using
almost any prior alleged indiscretion--no matter how trivial--
by a nominee as an excuse to delay or prevent a vote. Senators
have also interjected themselves into the President's
nominations process to an unparalleled degree. As a result,
that process--the selection, recruitment, and vetting of
candidates--takes longer than ever before. While the
Administration may well bear some responsibility for the slow
pace of nominations, we find it troublesome that the Senate
would so severely restrict the ability to fill vacant positions
temporarily and to conduct the people's business while at the
same time impeding the nominations process and confirming
nominees at a snail's pace.
This President has made every effort to accommodate
Senators' views about particular positions and nominees.
Moreover, this President has used his power to make recess
appointments far less than his predecessors. President Reagan
made 239 recess appointments in eight years; President Bush
made 78 recess appointments in four years. President Clinton
has made only 45 recess appointments in his first five years in
office. If this bill passes, we anticipate that the President
will have no alternative but to make more recess appointments.
That will hardly vindicate the Senate's advise and consent
function.
We are anxious to craft a bill that fully protects the
Senate's advise and consent function, while affording the
Executive Branch the flexibility it needs to faithfully
discharge the laws. In its current form, this bill does not do
that. Without changes to address the problems identified above,
we cannot support it.
Richard Durbin.
Daniel K. Akaka.