The Federalist Society

Congress Reforms Vacancies Act to Protect the Senate's Confirmation Prerogative

Administrative Law Practice Group Newsletter - Volume 3, Issue 1, Spring 1999

May 1, 1999

Morton Rosenberg

The Constitution directs how officials who will exercise substantial authority under the laws are to be selected. Under the Appointments Clause, Art, II, sec. 2, cl. 2, the President is vested with the authority (and duty) to appoint all officers of the United States, subject to Senate confirmation. The President may also, under certain circumstances, fill vacancies in such offices through recess appointments which expire at the end of the next session of the Congress in which they were issued. Art. II, sec. 2, cl. 3.

Over the years, Congress has established a legislative scheme to protect the Senate's constitutional role in the confirmation process against presidential evasion. The Vacancies Act traces its legislative origin to a 1795 enactment limiting the time a temporary assignee could hold office to six months.1 All subsequent vacancies legislation contained some time limitation on temporary occupancy. Congress has also enacted provisions requiring that filling of vacancies by recess appointments be promptly followed by submissions of presidential nominations for such positions,2 and prohibiting the payment of salary of recess appointees who had been rejected by a vote of the Senate.3

Congress's historic attention to the protection of the Senate's confirmation prerogative accords with the Supreme Court's view of the high importance the appointments process has in our constitutional scheme of balanced, separated powers. The Court has made it clear that the principle of separation of powers is embedded in the Appointments Clause,4 and most recently emphasized that the Clause "is more than a matter of `etiquette or protocol', it is among the significant structural safeguards of the constitutional scheme.5"

The Vacancies Act,6 originally passed in 1868,7 was intended to prevent the President from delaying sending forth nominations for advice and consent positions which could thereby evade the Senate's confirmation prerogative, and to provide the exclusive means for temporarily filling vacancies in covered positions unless Congress explicitly provided a superseding mechanism. Only two options were available under the statute: either a first assistant or a presidential designee who had previously received Senate confirmation could serve for a strictly defined and limited period. Prior to 1988, the limitation period was 30 days. In that year it was increased to 120 days. An unbroken line of Attorneys General and Office of Legal Counsel opinions from 1880 through 1977 reflected the understanding that there could be only one limited period of occupancy per vacancy (a first assistant's and a presidential designee's service could not be piggybacked) and that a pending nomination did not toll the limitation period.8 These opinions held that once the time period was exhausted, the office had to remain vacant and the powers and duties of the office could not be lawfully exercised. The Act was understood by the DOJ to apply in this rigid manner whether bureau chiefs or the heads of cabinet departments were involved. The only recourse of a President to fill a position in the event the Vacancies Act was unavailable was the nomination process or a recess appointment.

However, since 1973, DOJ took the position that the Vacancies Act only provides for one possible method for filling certain positions on an interim basis, and that some departments and agencies, including DOJ, have statutory authority to assign duties and powers of positions on a temporary basis outside the Vacancies Act. DOJ asserted that it had such authority under Section 509 of title 28, which provides that "[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General," and under Section 510 which permits the Attorney General from time to time to make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General. It also contended that these vesting and delegation provisions make the time limitations of the Vacancies Act on the filling of vacant positions inapplicable to the Department. This special authority was said to date from the establishment of the Department in 1870.9 On the basis of this theory DOJ repeatedly denied the applicability of the Vacancies Act to vacant positions in all departments.

With equal consistency, the Comptroller General of the United States has disputed DOJ's position. The Comptroller argued that the language and history of the Vacancies Act establish that it is the exclusive authority for the temporary filling of vacant positions which require presidential appointment with the advice and consent of the Senate unless there is specific statutory language providing another means for filling the particular vacancies. Neither the DOJ provisions, nor similar provisions in other department enabling statutes, which have common origins, the Comptroller General argued, have either the requisite specificity or legislative purpose to effect a displacement of the scheme of the Vacancies Act.10

The effect of the application of DOJ's supercession policy throughout the executive branch, and consequently on the Senate's confirmation power, was significant. At the Justice Department, 45 individuals since 1981 have been designated as "actings" in advice and consent positions for periods exceeding the permissible limitation of the Vacancies Act. The acting head of the Department's Criminal Division served in excess of 30 months until a nomination was submitted on March 13, 1998, and the acting Solicitor General served over 14 months until his resignation without any nomination being submitted. As late as September 1998 there were three other positions in the Department which were being filled by temporary designees for which nominations were submitted after the expiration of the 120-day limitation period.

Similar situations existed in all the other executive departments. For instance, as of February 1998, 9 vacant advice and consent positions at the Commerce Department were being filled by actings. Of the 9, 7 had occupied the offices in excess of 120 days. One had served for three years. Nominations were pending for 5 of the 7 positions, but none were submitted prior to the expiration of the 120-day statutory limit. In all of the 14 executive departments there were, as of February 28, 1998, 64 acting officials in the 320 advice and consent positions, 43 of whom were serving beyond the 120-day limit of the Act.11

The designation of Mr. Bill Lann Lee by the Attorney General on December 15, 1997, as Acting Assistant Attorney General for Civil Rights in the Department of Justice (DOJ) revived this long-standing interbranch controversy over the legal propriety of the failure of executive branch departments and agencies to consistently comply with the provisions of the Vacancies Act, and moved Congress to overhaul the legislation in the waning days of the 105th Congress.

The Federal Vacancies Reform Act of 1998, codified at 5 U.S.C. 3345-3349d, completely supplants the old Vacancies Act. The new legislation appears to reflect a variety of decisional factors: the lessons of the 1988 experience when imprecise legislative drafting allowed the Executive to evade the Senate Committee's intended goals; the realization that piecemeal remediation of the 130-year-old statute would not address and resolve contemporary problems in policing, through the confirmation process, the effective and efficient staffing of a responsible political bureaucracy; and the understanding that the congressional goals of timely presidential submission of nominations and minimization of the period during which unconfirmed acting officials serve in key positions meant to be politically responsible and responsive, had to be balanced against executive concerns that the vetting process for potential officeholders has become more complex, difficult and protracted, and that the need for flexibility in maintaining the continuity and quality of administration during the period of interim service of an acting official was being unduly constrained by current law. The rewrite appears animated by these considerations.

The new Vacancies Act rejects the DOJ position on temporary appointments and makes it clear that the Act is the exclusive vehicle for temporarily filling vacant advice and consent positions unless Congress expressly provides otherwise. The legislation provides substantial incentives for prompt presidential submissions of nominations, including an increase in the time during which an acting officer may serve when timely nominations are submitted. But the President's choices of action are strictly confined and the failure to comply with the statute's requirements may lead to the vacation of the authorities and responsibilities of the office and to rendering the actions of acting officials void without the possibility of subsequent ratification. Special provision is made for vacancies that occur during a change of Administration after a presidential election. Finally, responsibility for monitoring compliance with the provisions of the law is placed with the Comptroller General.

The President now has three options when an advice and consent position in any executive agency becomes vacant as a result of the death, resignation or other inability to perform the functions and duties of the office. Under new Section 3345 the President may allow the first assistant to such officer to assume the functions and duties of the office; or he may direct a current officer in any agency who has been subject to Senate confirmation to perform those tasks; or he may select any officer or employee of the subject agency who has been with that agency for at least 90 of the 365 days preceding the vacancy and is at least at the minimum GS-15 grade level. However, a person may not temporarily serve if that person did not, in the previous 365 days, serve as a first assistant, or was first assistant for less than 90 days, and the President submits a nomination of that person to the Senate. Section 3345 (b) (1).

Section 3345 (a) is designed to provide optimal flexibility and administrative continuity in the case of a covered vacancy. A first assistant may now be either one who is designated such by law or by agency regulation. If there is no provision of law or agency regulation designating such a person, and the President deems it inappropriate to assign an advice and consent officer from another agency to occupy the office, he may select a person in the agency who has been there a sufficient amount of time and at a high enough grade level to perform the duties of the office. The limitation of Section 3345 (b) (1), noted above, is to prevent placing an employee in an agency simply for the purpose of having him in place while his nomination is pending.12

The desirability of administrative continuity in office also explains the exception in Section 3345 (e). Where a person is serving in a position in an executive department for a term of years and the term expires, he may continue to hold that office (subject to the time limitations of Section 3346) if the President nominates him for reappointment to that same office.

Under Section 3346, a person who is serving in an acting capacity pursuant to Section 3345 may temporarily hold that office for 210 days beginning on the date the vacancy occurs. The limitation period is suspended, however, if a first or second nomination is submitted to the Senate for as long as the nomination is pending in that body. If the first nomination is rejected by the Senate, or is withdrawn or is returned to the President, the acting officer may continue to serve for no more than 210 days after such action. But if a second nomination is submitted within that 210-day period, the acting officer may serve until the second nomination is confirmed, or for no longer than 210 days after the nomination is rejected, withdrawn, or returned. If a vacancy commences during a sine die congressional adjournment, the 210-day limitation period does not begin until the Senate reconvenes.

New Section 3347 declares that Sections 3345 and 3346 are the exclusive means for authorizing the temporary filling of advice and consent positions unless (1) Congress expressly provides by law that the President, a court, or the head of an executive department may designate an officer or employee to perform the function or duties of a specified office temporarily; or (2) Congress designates by law a particular officer or employee to temporarily serve; or (3) the President exercises his recess appointment power pursuant to Article II, sec. 2, cl. 3 of the Constitution. Section 3347(b) expressly negates the DOJ position that the statutory vesting of general agency authority in the head of any agency and allowing the agency head to delegate or reassign those vested duties and responsibilities to other agency officers or employees thereby provides an alternative to the Act's otherwise exclusive means of temporarily filling vacant positions.

Section 3348 provides that if an officer or employee is not temporarily serving in accordance with Sections 3345, 3346 and 3347, the office must remain vacant; but if it is an office other than the head of an agency, the head of the agency may perform the duties and functions of that office. Thus, if the President submits no nomination for an office during the 210-day period from the date of the commencement of a vacancy, the options available under the Act can no longer be utilized. Or, if the options provided under the Act are exhausted, only the nomination process or a recess appointment are available to the President. Further, if an action is taken by a person who is not qualified to act because he has not met the requirements of Sections 3345, 3346 or 3347, such actions are deemed by Section 3348(d)(1) as of no force or effect and may not be ratified in the future, except by an act of Congress. See Section 3348(d)(2).

Section 3349 directs the Comptroller General of the United States to monitor executive administration of the Act. The head of every executive agency must notify the Comptroller General of each covered vacancy as soon as it occurs, the name of the acting officer serving in the vacant position, the name of the presidential nominee for the vacant position, and the date of any rejection, withdrawal or return of a nomination.

If Comptroller General determines that a person is serving longer than the 210 day limitation and its applicable exceptions, he is to report his determination of that fact to the specified House and Senate Committees, the President, and the Office of Personnel Management.

Special provision is made for vacancies that occur during the transition to a new administration after a presidential election. Under Section 3349a, for any vacancy that exists in the 60-day period after inauguration day, the 210-day limitation period begins either 90 days after inauguration day or 90 days after the date which the vacancy occurs.

The new Act does not apply to statutory provisions that authorize an officeholder to continue to serve in office after the expiration of the term for which the person was appointed of until a successor is appointed or a specified period of time has expired, i.e., so-called "holdover" provisions. Section 3349b. The Act also does not apply to advice and consent officers on boards, commissions or similar entities that are composed of multiple members and govern independent establishments or government corporations; the commissioners of the Federal Energy Regulatory Commission; members of the Surface Transportation Board; or Article I judges. Section 3349c.

Section 3349d provides that written notification by the President to the Senate that a nomination will be submitted to the Senate after a recess or an adjournment of more than 15 days is deemed to be a nomination for the purposes of Sections 3345 through 3349c of the Act if the notification contains the name of the nominee and the office to which he is to be nominated. But if the nomination is not actually submitted within two days after the end of such recess or adjournment, the nomination will be treated as withdrawn for the purposes of Sections 3345 through 3349c. This provision would appear to be an encouragement to the President not to utilize his recess appointment power.

The Act became effective on November 20, 1998, and will apply to any vacancy occurring after the effective date. But the time limitations of Section 3346 apply to any office that is vacant on the effective date as if the office became vacant on that date. Finally, a nomination for a vacant office submitted after the effective date will be considered the first nomination for that office even if that person had been previously nominated for that office.13

The new Vacancies Act is a historic revision of the Senate's confirmation process. It reflects significant political accommodations by both the Executive and the Congress. On the one hand, the legislature accepted the Executive's contention that finding and vetting suitable candidates is an arduous and time consuming task and will now effectively allow a search period of 210 days. Similar allowances were made for filling vacant positions during the transition between old and new presidential administrations. Concessions were also made with respect to who may be designated to temporarily act in case of a vacancy. In addition to a first assistant (who may be identified now either by law or agency regulation) or an official who has received Senate confirmation, a GS-15 employee who has been on the job at the agency for at least 90 days may be selected by the President. Further, the recognition of the value of maintaining administrative continuity is reflected in provisions for tolling the limitation period if timely nominations are sent up and by the establishment of a general "holdover" authorization for tenured officials whose terms have expired but whom the President intends to reappoint.

What has the Senate gotten in return? First, there has been the important statutory recognition that the Vacancies Act is the exclusive vehicle for temporarily filling advice and consent positions and the legal rejection of DOJ's spurious vesting and delegation theory. Second, there are significant consequences for a presidential failure to act within the generous time limits accorded. If an appropriate acting is not designated, or if a nomination is not forwarded to the Senate within the 210 day period, the authority and functions of the office can only be exercised by the head of the agency, and no actions of an inappropriate acting can be subsequently ratified by the agency head. Finally, the creation of a mechanism for monitoring agency vacancies and their temporary occupants by the Comptroller General can provide an efficient policing and early warming system for Senate jurisdictional committees.

In the end, however, the ultimate effectiveness of the new Vacancies Act will lie with the Senate. While it would appear that the most egregious past loopholes have been eliminated, judicious executive utilization of the tolling provisions of the new legislation will allow a temporary designee to hold office for well over two years, more than would be possible under a presidential recess appointment. Thus only if the Senate exercises its confirmation prerogative promptly and decisively will it enjoy the fruits of the constitutional leverage it sought to secure.

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   1. Act of February 13, 1795, ch. 21, 1 Stat. 415.
   2. 5 U.S.C. 5503 (1994).
   3. The prohibition has been included in all Treasury and General Government Appropriations legislation for the past 60 years. See, e.g., Pub. L. 105-61, sec. 610, 111 Stat. 1310.
   4. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 882 (1991)
   5. Edmond v. United States, 117 S.Ct. 1573, 1579 (1997). See also, Confederated Tribe of Siletz Indians of Oregon v. United States, 110 F.3d 688, 696 (9th Cir. 1993)(AThe Appointments Clause serves as a guard against one branch aggrandizing its power at the expense of another.")
   6. 5 U.S.C. 3345-3349 (1994).
   7. Act of July 23, 1868, ch. 227, 15 Stat. 168.
   8. See, 16 Op. Atty. Gen. 596, 597 (1880); 18 Op. Atty. Gen. 530 (1883); 18 Op. Atty. Gen. 58 (1884); 20 Op. Atty. Gen. 8 1891); 32 Op. Atty. Gen. 139, 141 (1920); 1 Op. OLC 150, 152 n.1 (1997).
   9. Morton Rosenberg, "Validity of Designation of Bill Lann Lee as Acting Assistant Attorney General for Civil Rights (CRS General Distribution Memo, January 14, 1998.
  10. Id., at 17-19.
  11. Roger Garcia, "Acting Officials in Positions Requiring Senate Confirmation in Executive Departments, as of February 1998" (CRS Rept. No. 98-252 GOV).
  12. This is designed to prevent repetition of the Bill Lann Lee experience. Lee's designation as acting assistant attorney general was made by the Attorney General after his nomination was returned by the Senate at the end of the session. The Attorney General requested the office of Personnel Management (OPM), pursuant to 5 U.S.C. 3134 (1994), for authority to employ Lee as a non-career Senior Executive Service on an emergency basis. Lee had to have a position in DOJ as an employee before a delegation of duties could be effected under 28 U.S.C. 510. The request to OPM and its approval were transmitted and responded to on the same day as the designation (December 15, 1997).
  13. An often asked question is, how is it that Bill Lann Lee is still the Acting Assistant General for Civil Rights and how long can he continue to be the acting. Lee, who was renominated for the civil rights position by the President in March 1999, is lawfully in office as a result of the just noted grandfather provision (which was likely written with him in mind). Since all pending vacancies are deemed to have begun on the effective date of the Act, Lee qualifies to be an acting because he has served in the position for more than 90 days. Also, since his recent renomination is deemed to be his first such nomination, if the Senate does not act on it, he could be again nominated in the second session of the 106th congress and further Senate inaction would allow him to serve as the acting until the end of the Clinton Administration, for a total of three years plus without confirmation.

Morton Rosenberg is a Specialist in American Public Law at the Congressional Research Service (CRS). The views expressed herein are those of the author alone and do not reflect any positions of CRS.


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