The Federal Vacancies Reform Act and Implications for Presidential Transitions

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome, everyone, on this Friday afternoon, January 15, 20201, to The Federalist Society Teleforum conference call. This afternoon we're discussing "The Federal Vacancies Reform Act and Implications for Presidential Transitions." I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that expressions of opinion on today's call are those of our experts.

 

      I'll just introduce our moderator before we get started. This afternoon, we're very pleased to be joined by Mr. Brian Johnson. He's a Partner at Alston & Bird. Mr. Johnson's going to introduce our panelists. We'll have some opening remarks, a bit of moderated discussion, and then, if we have a bit of time at the end, we'll go to audience questions. Because we have such a great panel, we'll be looking to take the whole hour with some substantive discussion.

 

      Thanks very much, Brian, for being with us. I'll hand the floor off to you.

 

Brian Johnson:  Thank you so much. I have the pleasure of being the moderator for this discussion today, and I have the honor of introducing our distinguished panel. I'll start with Thomas Berry. He's a Research Fellow at the Cato Institute's Robert A. Levy Center for Constitutional Studies and Managing Editor of the Cato Supreme Court Review.

 

      Before, he was an attorney at Pacific Legal Foundation and a law clerk for Judge E. Grady Jolly of the Fifth Circuit. He's written several pieces on the Vacancies Act, including a law review article that was cited by the D.C. Federal District Court in the case L.M.-M. v. Cuccinellii. He's also testified before a U.S. Senate subcommittee on the Appointments Clause and agency rulemaking. He graduated with a J.D. from Stanford Law School and a B.A. in liberal arts from St. John's College Santa Fe.

 

      Our second panelist is Stephen Migala. He's currently an Attorney-Advisor at the U.S. Department of State where he counsels on administrative law, civil appellate, and district court litigation and liaises with criminal enforcement matters all related to international export control and national security laws.

 

      Prior to joining the Office of Legal Advisors, Stephen worked on civil appellate and district court cases at a boutique firm and at an international law firm in D.C. He earned a J.D. and LL.M. both from Georgetown Law, and prior to that, served as a military officer.

 

      If you wonder how that relates to this topic, it doesn't, really. Stephen was asked to share his personal insights because of the deep original research he did for a law review article related to the Vacancies Act, its history, and the context of the FVRA. That work would later be used and cited by other scholars, attorneys, and amici. For a time, he advised on a few FVRA cases pro bono. Stephen is currently working on other detailed academic pieces related to appointments and officers of the United States.

 

      Our third panelist is Anne Joseph O'Connell, a lawyer and political scientist. She is the Albert H. Sweet Professor at Stanford Law School whose research and teaching focuses on the administrative state. Outside of the law school, she is a contributor to the Center on Regulation and Markets at the Brookings Institution, an appointed public member of the Administrative Conference of the United States, and an elected fellow of the American Academy of Arts and Sciences and the National Academy of Public Administration.

 

      She has twice won the ABA Administrative Law and Regulatory Practice Award for scholarship and the ACA's Richard D. Cudahy Writing Competition on regulatory and administrative law. O'Connell clerked for Justice Ruth Bader Ginsburg and Judge Stephen F. Williams and was a trial attorney for DOJ's Federal Programs Branch. She is currently working on a book, Stand-Ins on temporary leaders in government, business, and religion.

 

      All accomplished academics who have written in detail on the FVRA, the topic of today's discussion.

 

      What is the FVRA? I'll give you the 10,000-foot view. It was a law enacted in 1998 on a bipartisan basis, and it deals with what happens when there is a vacancy for a PAS, a presidentially appointed and senate-confirmed position, within the executive branch of the federal government. The law provides a mechanism by which temporary appointments of acting officials can be made to fill those vacancies.

 

The law itself has a long and rich history. The FVRA from 1998 replaced a prior law, the Vacancies Act, which had its roots going back to 1868. It has been at the center of many separation of powers disputes between Congress and the president. Although, in recent years, there's been a frustrating lack of actual judicial opinions clarifying some of the ambiguous or uncertain provisions within the FVRA, though recent developments the last three years potentially shed additional light on the meaning of the FVRA and congressional intent with respect to enacting the provisions.

 

Very briefly, what it provides is that the president 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 office. The president may select either the first assistant to such officer to assume those functions, or he may direct a current officer in an agency who's been subject to senate confirmation to perform those tasks, or he may select any officer or employee of the subject agency who's been with that agency for at least 90 of the 365 days preceding the vacancy and is at least at a minimum GS-15 grade level.

 

      Any person appointed under FVRA in an acting capacity may temporarily hold that office for 210 days beginning on the date the vacancy occurs. That limitation period, however, is suspended if a first or second nomination is submitted to the Senate for as long as a nomination is pending in that body.

 

      FVRA is intended to be the exclusive means for authorizing the temporary filling of advice and consent positions unless one of three conditions are met. One, Congress expressly provides by law that the president, a court, or head of an executive department may designate an officer or employee to perform the function or duties of the specified office temporarily; two, Congress designates by law a particular officer or employee to temporarily serve; or three, the president exercises the Recess Appointment power under the Constitution.

 

      The law provides that if an officer or employee is not temporarily serving in accordance with the provisions of FVRA, the office must remain vacant. Further, if an action is taken by a person who is not qualified to act because he doesn't meet the requirements of the FVRA, such actions are deemed to have no force or effect and may not be ratified in the future except by an act of Congress.

 

      Given that we are in the midst of a presidential transition, I should also note that there is a special provision made for vacancies that occur during the transition to a new administration after a presidential election. For any vacancy that exists in a 60-day period after inauguration day, the 210-day limit period begins either 90 days after inauguration day or 90 days after the date on which the vacancy occurs.

 

      That's the mechanics of how it works. I'd like to turn this over now to the first topic. Tommy, I guess I would ask you. Given your scholarship on the constitutional issues surrounding FVRA, including when it may or may not apply and including a recent interesting concurrence that raised some eyebrows by Justice Thomas, I hope you would maybe tee up the constitutional issues that have surrounded and continue to surround FVRA.

 

      With that, I'll turn it over to you. Thank you.

 

Thomas Berry:  All right. Absolutely. Thank you, Brian, and thank you to The Federalist Society. The way I'll go through this is I'll start by briefly laying out the constitutional background, and then I'll connect that to the Vacancies Act specifically.

 

      The Appointments Clause of the Constitution says, "The president shall appoint all officers of the United States with the advice and consent of the Senate." But the Clause also includes one relevant exception: if an officer is an inferior officer, Congress can pass a law allowing the president to appoint that inferior officer unilaterally without the need for Senate confirmation.

 

      Courts have adopted the term "principal officer" to refer to officers who are not inferior for whom this is not an option. The way to think about an Appointments Clause question is to ask first is the person a principal officer, an inferior officer, or not an officer at all? And then, second, you look at how the person was appointed and you ask whether that method is permissible depending on the category the person falls in.

 

      The key question here is the dividing line between principal and inferior officers. The most recent Supreme Court precedent on that dividing line is called Edmond v. United States from 1997, but I have to put a huge asterisk, which is that the Supreme Court just this term granted review on another case about that line called United States v. ARTHREX. So, by the end of this very term, Edmond's language could well be either fleshed out or modified. But for now, we have Edmond. Edmond says that inferior officers are "officers whose work is directed and supervised at some level by others who are appointed by the president."

 

      Now, to connect that background of constitutional law to the Vacancies Act specifically. Brian laid out the basic mechanics behind the Vacancies Act, but the key point is that once an acting officer is installed, he or she has all the same powers as a normal, non-acting officer. In other words, the same authority as a Senate-confirmed permanent officer. The only difference is the Vacancies Act imposes the time limits that Brian mentioned.

 

      Here's the issue. There's no debate that cabinet secretaries, Senate-confirmed cabinet secretaries, are principal officers. They don't serve under any other presidential appointee. The only person above them in the chain of command is the president. But what about when there's a vacancy in the cabinet and the president selects an acting attorney general or acting secretary of state, for example? That acting secretary would seem, at first blush, to also be a principal officer under the standard laid out in Edmond because that acting secretary would also have no superior but the president.

 

      Yet, acting secretaries, like all acting officers under the Vacancies Act, serve without Senate confirmation. This is exactly the point that was made by Justice Thomas in the concurrence that you mentioned. It was a 2017 cased called NLRB v. SW General. Although the full Court didn't address any constitutional issues, Justice Thomas wrote that, in his view, an acting principal officer is indeed a principal officer him or herself. Thus, that appointing acting principal officers "raises grave constitutional concerns."

 

      Justice Thomas didn't address one wrinkle in his concurrence, and that's the question of whether it's relevant if an acting officer was confirmed by the Senate to some other position. I think that distinction is relevant.

 

      In two cases called Schumacher and Weiss, the Supreme Court held that when the Senate confirms a person to one position, it's permissible to subsequently add new duties to that person's portfolio as long as those duties are reasonably in line with the job they were confirmed. Though neither of those cases concern the Vacancies Act, I think their reasoning is applicable in this context. If the Senate confirms someone as deputy AG, for example, I think temporarily appointing that person as acting AG, adding the duties of the AG to their portfolio, is constitutionally permissible.

 

      The most serious concern, then, is when someone is selected as an acting principal officer and they weren't previously confirmed by the Senate to some other similar position. Now, on day one of the Trump administration, there were 12 acting cabinet secretaries, all of them holdovers from the Obama administration, and nine of those 12 were not Senate confirmed in the positions they'd held.

 

      Now, maybe because this practice is common at the start of an administration. Maybe because Justice Thomas' concurrence hadn't come out yet. Maybe because those holdovers didn't enact any significant policy. For whatever reason, none of them really elicited any outcry or constitutional concerns.

 

But in November 2018, Jeff Sessions resigned as attorney general and President Trump selected Sessions' chief of staff, Matthew Whitaker, to be the acting AG even though Whitaker's job was not Senate confirmed. Likely because this was right in the middle of the Mueller investigation from which Sessions had recused, there was, for the first time ever, an enormous amount of attention on this question of acting principal officers.

 

For my own part, I thought Justice Thomas' argument was compelling, but my one hesitation was based on history. Congress passed to predecessors of the Vacancies Act very early on, in 1792 and '95, both of which allowed the president to select "any person" to perform the duties of the secretaries of state, war, and treasury during a vacancy or absence.

 

If acting as a cabinet secretary without Senate confirmation is unconstitutional, why did these two early Congresses, formed so close to the Constitution's framing, pass bills allowing just that? Even though the text of these acts allowed the president to choose non-Senate-confirmed persons to perform the duties of cabinet secretaries, what I wondered was how often presidents actually made such a choice.

 

When I examined the historical record from the nineteenth century, what immediately jumps out is how frequently acting officers were appointed just for temporary absences of a cabinet secretary due to travel or illness.

 

Over and over, you see acting appointments made because the secretary was "absent from the seat of government," meaning he was traveling outside of Washington. Since modern communication means cabinet secretaries can perform their jobs from everywhere, it's not really an issue today, but it was in the nineteenth century.

 

In these records, you also frequently see an acting appointment "during the confinement of the secretary by sickness." In other words, when you have the type of quarantining we've all sadly become used to, the secretaries didn't have Zoom to allow them to do their jobs from their rooms.

 

These two types of absences, travel and sickness, were much more common back in the nineteenth century and, in fact, the records distinguished temporary service during an absence by calling it acting service whereas temporary service during a gap after a secretary died or resigned was called ad interim service. That verbal distinction has disappeared today because nearly every use of the Vacancies Act now is the latter type, what used to be called ad interim.

 

I found a clear pattern, though it was not universally followed, that when cabinet officers were absent due to travel or sickness, a non-Senate-confirmed chief clerk of the department was usually chosen as the acting secretary whereas when cabinet positions were vacant due to a death or resignation, Senate-confirmed cabinet secretaries from some other department were chosen as ad interim for about half of the times.

 

Before 1868, I found 32 total ad interim appointments for a war, treasury, and state secretary; 15 were Senate-confirmed and 17 were not, but of the 17 that were not, six served less than a week and all but two served a month or less.

 

I think this history is relevant because there may well be a constitutional difference between these two types of service. An acting secretary standing in for a particular absent permanent secretary could plausibly be described as having a superior in the sense laid out in Edmond because, although the absent permanent secretary isn't giving day-to-day orders, the stand in knows the permanent secretary aims to return and could reverse whatever decisions they make.

 

That's why I think it's important to distinguish these two types of temporary service in the history, but most authorities don't, including the Office of Legal Counsel. In response to the Whitaker controversy, OLC wrote that chief clerks were appointed as temporary secretaries 110 times during this period, but I found only 13 of those times were appointments as ad interim secretary. The rest were acting.

 

In my view, presidents showed some hesitancy in appointing non-Senate-confirmed persons as ad interim cabinet secretaries, which shows, at the very least, a lack of confidence that it was constitutional. In some ways, that hesitancy continues today. Although, as I mentioned, nine of 12 acting secretaries at the start of Trump's presidency were unconfirmed, that was largely by necessity based on who was willing to stay on. By contrast, 18 of the 21 acting secretaries appointed after day one by Trump were in Senate-confirmed positions.

 

And now the final piece of the historical puzzle: an 1898 Supreme Court case called United States v. Eaton. In that case, a person had been tapped, without Senate consent, to temporarily serve as an acting consul general while the permanent consul general was seriously ill. The Supreme Court held even if the permanent consul general was a principal officer, the acting service did not make the acting officer a principal because he was a subordinate officer "charged with the performance of the duty of the superior for a limited time and under special and temporary conditions."

 

Now, I've argued in the past that it may have been relevant to the Supreme Court that he was acting during an illness rather than an ad interim officer during a vacancy. I think that language—"charged with a duty of a superior"—may lend some support to that. But the truth is we just don't know from the relatively sparse Eaton opinion, and courts have interpreted Eaton more broadly to hold that acting officers are inferior as long as their service is temporary.

 

I maintain that if Eaton does stand for that broader holding, it's really not compatible with Edmond. Eaton seems to take a more functionalist approach to the Appointments Clause. It speaks of a worry that "the discharge of administrative duties would be seriously hindered by a stricter rule." By contrast, Edmond is a firmly originalist opinion by Justice Scalia based on the original meaning of "inferior officer."

 

But nonetheless, I'm not surprised that lower courts, including the Fourth Circuit last year, have upheld Whitaker's service on the basis of Eaton. The Supreme Court has admonished lower courts "If a precedent of this Court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions, the court of appeals should follow the case which directly controls leaving to this Court the prerogative of overruling its own decisions."

 

I think, given that pretty clear instruction, lower courts, realistically, are going to continue to uphold acting service in principal offices under Eaton unless and until the Supreme Court itself considers the question.

 

Finally, to wrap up, given the controversy and attention this issue received for the first time in Whitaker, it will be very interesting to see in just five days what the Biden administration does and whether it keeps as many Senate-confirmed Trump officials as holdover secretaries as it can. I'll note that transfer in administrations from one party to the other is a case where, frankly, the framers of the Appointments Clause just didn't predict the reality we have now.

 

In Federalist 77, Alexander Hamilton predicted that, because of the advice and consent requirement, new presidents would keep most of the officers from a prior administration. Hamilton wrote "A change of the chief magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected if he were the sole disposer of officers. Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained from attempting a change in favor of a person more agreeable to him by the apprehension that a countenance of the Senate might frustrate the attempt and bring some degree of discredit upon himself."

 

Now, Hamilton was prescient about a lot, but this turned out to be one of his least accurate predictions. Fitting the realities of the partisan system we have into the requirements of the constitutional order that wasn't designed for this level of turnover is one of the biggest challenges we face in the realm of the Appointments Clause.

 

With that, I'll turn it back to Brian.

 

Brian Johnson:  Tommy, thank you for that. Anne and Stephen, why don't you jump in here. If you have any brief feedback or any other angle on the constitutional questions that Tommy, I think, very ably walked through. Maybe just very briefly. Anne, I'll turn it to you first.

 

Anne Joseph O'Connell:  Great. Two quick corrections. At the start of the Trump administration, we don't know whether Obama administration officials were unwilling to stay on or whether the new Trump administration didn't ask them or want them to stay.

 

      The second correction would be that the nine non-confirmed acting secretaries at the start of the Trump administration, I would not label them holdovers from the Obama administration. They were longtime senior careerists. One of the acting secretaries at the start of the Trump administration was Ed Hugler who was actually the acting secretary of labor as well at the start of the Obama administration coming from the Bush administration.

 

      Here's the one thought I would leave listeners with is that it is very likely that President Biden, on January 20, will have no confirmed secretaries. As Tommy indicated, there will be a significant number of non-confirmed acting secretaries in these jobs, and the question will be whether legal challenges to that are plausible.

 

      I think, given Eaton, and if the appointment system works quickly, that these non-confirmed acting secretaries will serve just a short amount of time, and I think the shorter the amount of time they serve, the far less plausible the legal concerns are.

 

Brian Johnson:  Thanks for that. Stephen, maybe in the interest of time, why don't I tee up topic two? We've explored the constitutional issues that surround FVRA and the context of appointments of actings by reason of statute.

 

There are other statutes on the books that interact with FVRA in interesting ways. Given some high-profile examples over the past three to four years, we've seen this play out, including complaints filed in court challenging the validity of certain actions.

 

      There's, I guess, two species of statutes on the books that interact with FVRA. One is the general authority of the head of a department or agency to delegate powers and responsibilities to other employees of the department or agency.

 

Secondly, there are agency-specific succession statues, some of which predated FVRA and some of which postdate FVRA. There's a question in my mind about to what extent those agency-specific succession statutes supplant or replace FVRA or to what extent has FVRA remained the exclusive remedy.

 

      Stephen, could you kick this off? You've written extensively on this, including a deep dive into legislative history here. I'd love to hear your thoughts.

 

Stephen Migala:  Thank you, Brian. I'll begin by saying this really is a great opportunity to discuss fascinating topics with real experts. And yet, at the same time, it feels sort of challenging, and frankly, a punishing test of self-control to keep this so succinct and at a high level. There's so many things to discuss there that it's just impossible to touch on in short times.

 

      Let me, then, reset and try to do an overarching point and really stress here that context is key. With respect of how office-specific statutes interact with the Vacancies Act, you can't just look at one provision in isolation without looking at the other text of the law and how it interacts in the same way that you can't just pick out one piece of legislative history, ignore others, and say, "Look, I found support for my preferred outcome."

 

      I think lately some courts and some commenters and, frankly, the government too, have been guilty of both. Let me caveat this by saying that these are all my personal views. They're in my personal capacity. They're not of any organization, entity, or in government.

 

      But let me kind of build off of what Tommy and you, Brian, introduced. We have Congress doing two things, generally. Usually, for a specific office, when that office is created, historically, Congress had a specific office-succession provision within that statute. What happens when the office becomes vacant? Or, more usually, and, in fact, early on in the statutes, what happens when the officeholder is explicitly removed?

 

      Tommy introduced the difference between the ad interim and the actings, and this actually becomes important because the Vacancies Act of '72 kind of fills around the blanks outside of removal, and it talks about what can happen only during the death, absence from the seat of government, or sickness. So, you have this important distinction that you have office-specific succession statutes already from the earliest, earliest statutes and offices, but they're cabined. What we think of as general actings are, in fact, different than ad interim; although, today it's been kind of collapsed into one overarching point.

 

      Flash forward, like Brian said, to 1868, and that idea you see between actings and ad interim for sickness versus resignation, that's carried over into the Vacancies Act. The Vacancies Act, which was the foundation of what we had for 130 years and is incorporated, really, much of it, into today's structure. In that Vacancies Act of 1868, there's no time limit for sickness or absence, but the vacancy occasion by death or resignation was limited to ten days. So, it stood for a long time.

 

      In 1891, that was expanded to 30 days, and then, in 1988, things start to change a little bit. Let me contextualize a little bit more of what changed in those 120 years. You would hope some things. One of the pertinent of which is something called the Hoover Commission. I think it's called Commission on Organization of the Executive Branch of the Government.

 

Congress was looking for efficiencies in government as you have rapid expansion in the '30s and '40s of the so-called administrative state. They were looking how to promote efficiencies. Herbert Hoover comes in and proposes certain recommendations, one of which is this idea of being able to more efficiently manage the day-to-day duties of the department.

 

      But there was a problem. The attorneys general at the time had posited that not every power that Congress vests in an office can, in fact, be delegated. There was this uncertain question. The solution to this was a specific law that had allowed an agency head or others to delegate to others, usually down in the lower chain of command.

 

But also, in case some statutes had escaped and not created a power in the head of the agency but in some subordinate officials, you also had vesting statutes which allowed those responsibilities to flow up to the department. Vesting everything goes up to the top; delegation, everything goes down. Together, vesting and delegation statutes are, today, more commonly known as housekeeping statutes.

 

      By 1953, you have reorganization acts, you have plans that come in. Some are approved by Congress explicitly for certain department, some as part of a proposal where the president would submit to Congress an idea for a plan, and if either chamber did not object, then it would go into law. Obviously, we don't have that kind of unicameral or bicameral veto anymore, but that's how a lot of provisions got into play.

 

      Almost all executive departments and most agencies have vesting and delegation and have housekeeping statutes. We're in the 1950s. All is basically well with appointments and actings. There's a general understanding of how this longstanding Vacancies Act has worked for so long. There's not a problem.

 

But then there comes some inter-branch conflict. Some nominees can't get confirmed, and someone at DOJ gets the bright idea to say, "Hey, there's this alternate way that we can have people perform the duties we want to perform." Specifically, the first real conflict happened over the director of the Law Assistance Administration.

 

      The people and DOJ look at this. They say, "What? There's a Senate? What's that? And why should I care? I have this other statute, this housekeeping authority, and it seems like it gives me great discretion to do whatever I want to do to effectuate the president's desires, the executive's desires."

 

This starts a really long-running debate. DOJ goes at it with the comptroller general, specifically. A series of letters are exchanged. They write a series of opinions, and, unsurprisingly, both legal theories and rationales get them to their desired positions, and they think that other positions are just too wrong and too crazy.

 

Slowly, they start to build. This started out with DOJ, but other departments look around and say, "Hey, wait a minute. DOJ's doing this, and they're getting away with it. We should too." So, you have this big expanse during the '70s and '80s in particular of using housekeeping statutes. The idea that if there's an acting subordinate, let's say, for a hypothetical, a number two official in the department that has specific duties assigned to it. Well, if that office is vacant, it's not that that duty goes unperformed, but rather the vesting and delegation statutes allow it to flow up to the agency head, and then the agency head can just give it to whomever he or she wants.

 

The comptroller general and many in the Senate, unsurprisingly, saw this as too big of a back door around the Appointments Clause. They said, "Hey, we need to do something about it." There was this back-and-forth debate on when housekeeping statues can override the Vacancies Act. But all throughout this debate, it's really important to understand that there's one point of agreement between these very opposed parties that when there is an office-specific succession statute, that applies, and the Vacancies Act does not.

 

Flash forward. 1988. The Senate feels like it needs to do something. They amend the Vacancies Act, and they dramatically increase the time to 120 days, and they put in some resets. And they put in the legislative history of that law. "Look, we're being very clear here. The Vacancies Act trumps all housekeeping statutes." Hot stove; don't touch.

 

But then a spry OLC head in 1989 named William Barr looks at this and says, "Hey, I like writing long memos about this, and have I got one for you." No. The end. Your point doesn't hold. You can't alter the prior interpretation of a statute through subsequent legislative history. Which is, in fairness, seems like a quite reasonable position.

 

The Senate is very confused. They thought, "Wait a minute." They amended the Vacancies Act. How does their legislative history not control here? And DOJ says, "Well, you did, but you didn't amend the section you're describing. Better luck next time." So, DOJ wins this round, and there's a slight detente.

 

Then 1998 comes around and two main things happen. Bill Lann Lee is designated using a housekeeping statute to a position within the Justice Department on civil rights. Many in the Senate opposed that and thought it was another incomprehensible use of the housekeeping statutes. Also, there is a case about the director of the Office of Thrift Supervision called Doolin. The Senate looks at these two things. They say, "Enough is enough. There's too much housekeeping statutes. We need to do something."

 

They rewrote the Vacancies Act. They said, "We're going to start it anew, but we're going to make sure that we're going to keep in this notion, this commonly understood agreement, that specific office succession statutes control in place of a more general statute." The same thing they had tried to work into legislative history.

 

What happens is you have this provision that's now housed in 5 U.S.C. § 3347, and it says, currently, sections 3345 and 46 are the exclusive means for authorizing an official unless three things: the statute authorizes the head of a department or president to designate—in other words, they give them a may option; "You may designate someone"—there's a 1(b) provision, a shell provision, in case a vacancy X will occur—in other words, it automatically has to occur without any other action—and, then, there's this other, of course, the Recess Appointments Clause.

 

There's this odd drafting. I explain it in my piece, and I won't go in it too long here, or at all really, about how that came to be. It was, frankly, just meant to keep out an interpretation of these housekeeping statutes of being so broad and inclusive to kind of serve as a back door around both the Vacancies Act and the Appointments Clause.

 

When the Senate was voting on this and when they were writing this, they said Section 3345 and 46 are something like "available unless" -- or, applicable. I'm sorry. They said they were "applicable unless." And then someone looked at it and the manager's amendment thought, "Wait a minute. That's too much of a loophole. We're going to say no, that's not the case. We're going to close any use of housekeeping statutes and say it's exclusive unless."

 

So now you have courts, OLC, trying to parse what this means, and they point to some odd provisions of the law. This is kind of a Rorschach test, really, for how you interpret legislation. They look at this. They say, "Oh, look. It's text that says 'exclusive unless.' That must mean it's not exclusive."

 

But then they miss contextual clues here: the Recess Appointments Clause, the fact that this is self-executing and could create a conflict with the self-executing provision of the first assistant provision in 3345. Both of them happen at the same time. Both of them could happen to other people. So what works, then?

 

I think my overarching point, which I'll try to wrap up right now, is just the context is key here. The housekeeping statutes were the ill that the Congress was trying to avoid. They were trying to constrict the way that the executive can go around it and not expand it. The view that's taken today that the executive has this pick or choose, this choose your own adventure, pick whichever statute you like, surely that just can't be the case.

 

These statutes were around for 100 years. There were common understandings. They implicate so many departments. The idea that in this implicit, ambiguous language, without so much of a peep from Congress in our legislative history would make such a huge sea change is just, I think, a little bit too far.

 

I'll pause there to allow some questions or interjections.

 

Brian Johnson:  Thanks, Stephen. That's great. Why don't I do this for purposes of conserving our time here—and feel free to provide feedback on that piece—but I want to take the discussion about some of the statutory or interpretive questions a little bit further.

 

There are two topics that I think are worth exploring. I would turn it over to you maybe for your thoughts on these topics. And, again, as feedback to Stephen's presentation. One is the FVRA is pretty explicit in that it applies when an officer dies, resigns, or is "otherwise unable to perform the functions and duties of the office."

 

It doesn't speak explicitly to the circumstance where the president fires, say, a cabinet official or an agency head. A vacancy created by removal creates at least a question mark in my mind about whether FVRA applies or to what extent it applies.

 

      The second question that comes to mind is can a president, for instance, create a vacancy and then appoint a new first assistant ex post, so after the vacancy is created? How does that work in the framework established by FVRA?

 

      Anne, I'll turn it over to you, again, for feedback on Stephen's presentation and for your thoughts on those two issues and any others you wish to address. Thanks.

 

Anne Joseph O'Connell:  Thanks, Brian. We should all be in both Tommy and Stephen's debt just for their incredible historical work that they've done on the issues that they discussed. I'll just say, briefly, on Stephen's discussion about how the Vacancies Act fits or doesn't fit with specific agency succession provisions, just from a more modern-day perspective, that these conflicts have arisen quite frequently in recent years.

 

      Of course, there was the dispute over who was the proper acting head of the Consumer Financial Protection Bureau. It came up with regard to Matthew Whitaker's service. There were the constitutional questions that Tommy indicated, but there was also a statutory question about whether the Attorney General Succession Act was the only provision that could be turned to or whether the Vacancies Act was available.

 

      There were discussions in the past few years as well about the Director of National Intelligence, the Federal Housing Finance Agency, and, of course, the Department of Homeland Security. In recent litigation, there was a related question: Do the time limits of the Vacancies Act apply to acting DHS secretaries who are serving under the Homeland Security Act as opposed to the Vacancies Act?

 

      Let me turn to these two other statutory issues. The first one is whether the Vacancies Act applies to presidential firings. This came up in March 2018 when President Trump fired VA Secretary David Shulkin. There was an agency succession provision which would've had the deputy secretary serve as the acting VA secretary, and there was a confirmed deputy secretary at the VA.

 

But President Trump instead turned to the Vacancies Act to install Robert Wilke, who had been a confirmed assistant secretary in the Defense Department, and there was litigation. A veteran sued. That lawsuit was voluntarily dismissed when Wilke was eventually confirmed as the new secretary of the VA.

 

      It could arise again. We have Kathy Kraninger as the head of the Consumer Financial Protection Bureau. She's named a deputy director, Thomas Paul, in July of this year. Now, of course, the Supreme Court's recent decision in Seila Law, we now have the director of the CFPB having a five-year term but with the president being able to remove her at will.

 

      So, the question would arise if President Biden were to fire Ms. Kraninger, presumably, he would turn to the Vacancies Act as opposed to the Dodd-Frank agency succession provision. Let's put aside the question of whether he can turn to the Vacancies Act, but there would be this additional question, assuming he could turn to the Vacancies Act and not rely entirely on the Dodd-Frank provision. Does the Vacancies Act apply to firings?

 

It could come up also if President Biden were to fire the general counsel of the National Labor Relations Board, for example, which is a position normally covered. Unlike most commissions and boards, the general counsel of the NLRB is covered by the Vacancies Act.

 

      What to make of this question. As Brian indicated, the text only says "otherwise unable to perform the functions and duties of office." Does that include firings? There's some limited legislative history—a few statements by members of Congress—that it does. In the floor debate, senators said that an officer would be otherwise unable to perform the functions and duties of the office if he or she were fired, imprisoned, or sick.

 

      The Office of Legal Counsel, in its 1999 guidance on the 1998 version of the Vacancies Act, relied on these limited legislative history items to give the advice that the Vacancies Act did apply to firings. In more recent years, with regard to the controversies that I just referred to over the CFPB and the Department of Justice, the OLC has affirmed this understanding.

 

      Now, no court has directly ruled on the question. There was some dicta in one of the lawsuits regarding Matthew Whitaker's service as acting attorney general. One district court in dicta, without any analysis, said, "Had Sessions chosen to refuse to resign, the president could've exercised his authority to fire him, which would make the Vacancies Act inapplicable." So, one district court thought, without analysis, that the Vacancies Act would not apply to firings.

 

      Now, I am somebody who believes that the language does apply to firings because of the text, because of the legislative history, because of the OLC rulings. There are also some additional policy concerns on both sides of the question. On the side that the Vacancies Act should apply to firings, it would avoid getting the courts involved in questions of trying to determine whether someone was fired or was not fired. Sometimes kind of pressured resignations versus removal can be blurry.

 

      On the other hand, you could parry that concern and say, "Well, it's only true firings. That if you were pressured to resign, that is not firing. But if you refuse to resign and are then fired, that would be a firing and then we could get the courts out of this business."

 

      Another policy concern to consider is usually raised by those who believe that the Vacancies Act should not apply to firings. The argument goes as follows. That it would create an incentive for the president to work around the traditional appointment system. Why not fire, create the vacancies yourself, and then use the Vacancies Act to get people in who don't need to go through Senate confirmation?

 

I do think there's a policy response to that that sometimes presidents need to fire officials for good reasons, and without the Vacancies Act, presidents would then have to choose between firing bad apples—which would leave important positions, arguably, unfilled until the Senate confirmed new officials—or keeping deeply problematic appointees in the meantime.

 

      I'll conclude this first statutory question by suggesting a hypothetical. Imagine on January 20 that some of President Trump's officials refuse to resign. What happens? If President Biden were then to fire them, is he then unable to turn to the Vacancies Act to fill those jobs temporarily?

 

      The second open statutory question is whether a first assistant to a covered Senate-confirmed position can be named after the vacancy. Why does this matter? Well, the default acting official under the Vacancies Act is the first assistant to the office. Typically, first assistants are in their positions when offices become vacant, but not always.

 

      Here's the big example in recent years -- involves the United States Citizen and Immigration Services. We had McAleenan naming Ken Cuccinelli as the principal deputy director of USCIS after President Trump had pushed out the USCIS director and then elevating Cuccinelli from this new first assistant position into becoming the acting USCIS director.

 

      What's been determined about whether a post-vacancy first assistant qualifying or not qualifying under the Vacancies Act? Well, we don't really have much. The Office of Legal Counsel itself has switched its view. Initially, OLC said that a post-vacancy first assistant wouldn't qualify. That's what it did in its 1999 guidance. But it changed its mind a few years later.

 

      The D.C. Circuit, in the SW General case that was referred to earlier did note that the Vacancies Act may refer "to the person who is serving as first assistant when the vacancy occurs." But the D.C. Circuit in that case was not actually focusing on this question about whether a post-vacancy first assistant was permitted under the statute.

 

      Now, what's interesting about what happened with regard to U.S. Citizen and Immigration Services is a litigation was brought about Cuccinelli's service, and Judge Moss, a federal district court judge in the District of Columbia -- interestingly, Judge Moss was the head of Office of Legal Counsel in 1999 when there was this initial guidance. Judge Moss did not decide the question about whether you could have a post-vacancy first assistant.

 

Instead, he ruled that this new position, this principal deputy director, was not a valid first assistant position, and then struck down two asylum directives issued by Cuccinelli because he was in this new principal deputy position which was not a legitimate first assistant role without ever deciding the question.

 

      These are two statutory questions that have not been resolved by the court. I think they could easily be resolved by bipartisan legislation, and I have views about what that legislation should say. Very briefly, on the firing question, I believe that the Vacancies Act should apply to firings. If you are very worried about the end run around the appointment systems, you could limit that to the first 180 days of a new administration to prevent this strategic decision not to resign when a new administration was coming in.

 

      On the second question with regard to first assistants, I also support the Vacancies Act applying to first assistants who are named after the vacancy. But again, if you're worried about end runs—and I am worried about end runs of the traditional appointment system—you could also limit that to a certain number of months to a new administration as well.

 

      Thank you, Brian.

 

Brian Johnson:  Thank you, Anne. To your point about whether FVRA should apply to vacancies created by removal, I would note an interesting fact, not for purposes of understanding what the law means but for purposes of an indication of where at least a sizeable portion of Congress may want to go in terms of amending the FVRA.

 

      There were three bills introduced in the immediate last Congress, the 116th—one by Katie Porter on the House side, one by Adam Schiff on the House side, and one by Senator Klobuchar—each of which have provisions which would amend FVRA to specifically apply in circumstances where a vacancy is created by removal.

 

      So, there's at least some indication among Congress that to the extent there is ambiguity, the issue should be resolved. Or, to the extent that they believe that it does not apply, they want to flip the meaning of the law in the other direction.

 

      The Schiff bill was co-sponsored by 92 House members, and the Porter bill was co-sponsored by eight House committee chairmen. There appears to be -- not specifically this provision—there are many provisions in the legislation—but there appears to be support for moving in the direction you suggest.

 

      Why don't I turn it over briefly to Tommy and Stephen. Do you all have feedback on these two provisions?

 

Stephen Migala:  No, I think Anne's points were all great and well taken. There are so many other interesting unresolved questions of the Vacancies Act I know we might want to get to.

 

Thomas Berry:  This is Tommy. I just have a quick 30-second one. There's an even wonkier wrinkle about the first assistant question which is what happens when there is a chain of acting officers, as there sometimes are for these long vacancies. In other words, one after another.

 

Sometimes you'll have an acting officer and they're in for so long that someone is newly appointed as the first assistant to that acting officer, and they're in there as the first assistant. Then that acting officer decides to leave and then you have the question: well, if that first assistant wasn't there way back at the original vacancy when the permanent person left but the first assistant's been there for a while under the acting officer, is that permissible?

 

      In my own view, the FVRA, weirdly, changed some of the language from first assistant to the officer to first assistant to the office of that officer. My best reading of the legislative history, even though it's not totally explicit, is that they were trying to say that yes, in that situation, if you have a first assistant who's come on under a new acting officer and then that acting officer leaves, the new first assistant can become the second acting officer in a row. I think that's more in line with the intent -- that doesn't really constitute an end run around it since that first assistant has the experience which was intended.

 

Brian Johnson:  Thank you for that. With our remaining nine minutes here, why don't we a lightning round, maybe of two minutes, on a couple of other interesting topics that arise.

 

      The first is the issue of ratification. I raised this at the outset which is there's a provision in the FVRA that says that an acting who is appointed outside of the conditions and requirements of FVRA, the actions of that acting official shall have no force or effect and can't later be ratified, which creates a potential problem if there's an active challenge to an FVRA appointment.

 

What happens, what's the remedy imposed if a later Senate-confirmed head of that office or officer appointed to fulfill that position can't later ratify those actions? Does anybody have thoughts on the ratification question?

 

Stephen Migala:  Yes. This is Stephen. I'll start off with -- I'll note here that this ratification provision is kind of the new teeth of the Vacancies Act. Congress was so upset in 1998 that the use of housekeeping statutes was so prevalent, and they thought they had made themselves clear that they felt like they needed to do this, and it was specifically in response to Doolin.

 

      Ratification is going to be the new frontier of the Vacancies Act. When it applies and what function or duty means out of 3348 and when it precludes a subsequent ratification is entirely important. Think of it in two quick directions. If there's a violation of the Vacancies Act and the action which leads to standing and challenge qualifies for this anti-ratification provision, it's game over.

 

If it doesn't qualify, if it's not considered a function or duty, then you go to this APA challenge stair. Under the APA, you basically look at, well, okay, it was later ratified. Is it harmless error? Is it prejudicial? Usually that means that the challenge loses.

 

      Really interpreting what the scope of 3348 is when it applies is going to be, I think, the new subject of litigation.

 

Brian Johnson:  Let me turn to another question.

 

Thomas Berry:  I'm sorry. This is Tommy. I just have one note on kind of a weird quirk. I completely agree with Stephen that it's a hugely important aspect of the Act, and I think they were justified in worrying that ratification, if it were allowed, could basically make the Vacancies Act not have much teeth.

 

But given that statutory barrier, we're now in a very odd situation where there's a bar on certain Vacancies Act violations, but there's no statutory bar on ratification of Appointments Clause violations, which might, at first, seem kind of backwards given that the Appointments Clause is even more fundamental. But the D.C. Circuit, right now, takes a very broad view—in a 2019 case called Guedes—a very broad view of ratification being permissible for potential Appointments Clause variations.

 

      I think it would be interesting if someone considered whether there should be a statutory bar on ratification of Appointments Clause violations modeled on what's in the Vacancies Act.

 

Brian Johnson:  Very interesting. Let me tee up one other layer on that question which is the question of standing. This has been in play in all the recent actions filed during the Trump administration.

 

      Leandra English, of course, was appointed the same day as Director Cordray's resignation as deputy director and mounted a legal challenge against the president's appointment of an acting director of CFPB citing FVRA as authority. Other groups on the outside had challenged some of these appointments and some of those challenges failed on standing grounds.

 

      Are we looking at a standard Article III standing question for these cases? What are the group's thoughts on that?

 

Anne Joseph O'Connell:  I think you're seeing -- there's been a decent amount of litigation during the Trump administration on these questions, and you see the lower courts applying a standard Article III analysis. I'll just refer back to the litigation I mentioned with regard to the firing of VA Secretary Shulkin. I think if the plaintiffs had not voluntarily dismissed their litigation once Wilkie got confirmed—these were veterans who were arguing about healthcare being provided by the VA—I think it would've been a really hard lift for them to show that they had the requisite standing to bring their claim that the Vacancies Act did not apply to presidential removals.

 

      Now, I think in all this DHS litigation is Chad Wolf. Is he the proper acting secretary of the Department of Homeland Security? Many of these lower courts said no, he was not, and got to that, of course -- these were on PI type of procedural postures, but they still had to decide standing. The people bringing the cases were able to show that they were affected by, for example, particular immigration actions that Wolf had signed off on.

 

Brian Johnson:  Would you similarly find a better standing argument for, say, a company that's subject to the enforcement or rulemaking or supervisory authority of an agency who, for instance, might receive a CID or be subject to an examination to make a challenge on that ground?

 

Anne Joseph O'Connell:  I'm not sure if this question is to me or -- I didn't want to dominate in the lighting round. But yeah, I think that would be a plausible case for standing.

 

Brian Johnson:  Okay. We have three minutes left, so why don't I do this. I'll turn it over to each of you for maybe your closing minute. We'd love to hear if you have thoughts on legislative amendments that you think would improve the operation of FVRA or otherwise just your closing thoughts on this discussion.

 

      I'll just go in the order of how we started this, so Tommy, why don't I start with you and then I'll turn it over to Stephen and Anne.

 

Thomas Berry:  Sure. Thanks. Yeah, I do have a recommendation, and it's based on something that Stephen mentioned as the most important unsolved riddle of the Vacancies Act so far, which is its seemingly narrow definition of what Acts actually apply under the Vacancies Act. What's the definition of a function or duty that can't be ratified and has no force or effect?

 

There's very interesting legislative history on why it has this seemingly large exception for non-exclusive rules, and the question to the extent to which simply being delegable makes something non-exclusive.

 

That's a wonky question, but the extent to which something is interpreted as non-delegable basically determines whether the Vacancies Act has teeth or not. In my view, amendments are possible which gets rid of that exception while still achieving what they originally wanted to achieve with that exception which was not bringing agency actions down to a complete halt during a vacancy.

 

Stephen Migala:  This is Stephen. I have many recommendations too. I'll point people very quickly to Northwest Immigrant Rights Project in the District of Columbia on October 8 by Judge Moss. It talks a lot about ratification.

 

This Act could be improved by making it even more clear, solving this yet-unresolved problem. I think you need to shorten the limits for time to make it have more teeth as well. I think you need to clarify the office succession provisions and you need to clarify the enforcement provisions. This is a structural guard of our democracy, and it should be given serious and long attention.

 

Anne Joseph O'Connell:  I guess I have many ideas for reforms. If you need help falling asleep, I have a piece called "Actings" in the Columbia Law Review listing out a bunch, but I'll just list one here that I don't actually discuss much in that piece at all. That is with regard to inspectors general, IGs.

 

We saw a lot of controversy concerning IGs in the Trump administration in the firing of IGs and then relying on the Vacancies Act to put in political appointees in the agency as acting IGs. I would support legislative reform which has been endorsed by both Republicans and Democrats to limit acting IGs to Senate-confirmed IGs in other agencies or to senior careerists, non-political people, in the IG office in the relevant agency.

 

      I'll just conclude with this one thought. The appointments system in this country is broken both in terms of nominations and in terms of confirmations. Actings and the Vacancies Act provide a needed stopgap because of that. But that stopgap can be abused and actings can become a workaround to the constitutional appointments process.

 

Just as actings can be a workaround to the traditional appointments process, as Tommy and Stephen have indicated, that delegations then become the workaround to actings. So, we really need to think about what's needed to make sure that our government functions and what is not needed and what is creating incentives to take us away from the traditional appointments process.

 

Brian Johnson:  Thank you, Anne. And with that, we'll close. I just wanted to thank each of the panelists for your depth of knowledge and the substantive discussion we've had today. If listeners get the sense that we've only scratched the surface with some of these complexities, it's because we have. But I commend the academic and research work of each of our panelists for further review. Thanks very much.

 

Nick Marr:  Thanks very much, all. This is Nick from FedSoc. Thanks for the benefit of your valuable time and expertise this afternoon for this really in-depth and engaging panel on a Friday afternoon.

 

      Thanks to our audience for calling in and listening. As always, be checking your emails and our website for announcements about upcoming teleforum calls. We've got more planned next week, so hope you can tune in then.

 

      Thank you all for joining us today. Have a great weekend. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.