Federal Vacancies Reform Act of 1998
The Federal Vacancies Reform Act of 1998, (5 U.S.C. § 3345) et seq., is a United States federal statute that establishes the procedure for a filling a vacancy in an appointed officer of an executive agency of the government during the time before a permanent replacement is appointed.
The law designates three classes of people who may serve as acting officials:
- By default, "the first assistant to the office" becomes the acting officer.
- The President may direct a person currently serving in a different Senate-confirmed position to serve as acting officer.
- The President can select a senior "officer or employee" of the same executive agency who is equivalent to a GS-15 or above on the federal pay scale, if that employee served in that agency for at least 90 days during the year preceding the vacancy.
Once a vacancy occurs, the position is eligible to be filled by an acting officer for 210 days from the date of the vacancy, as well as any time when a nomination is pending before the Senate. If the Senate rejects a first or second nomination, it activates additional 210-day periods from the date of the rejection, but this does not apply to a third or later nomination.
A person nominated to a position may not concurrently serve as an acting officer for that position, unless that person is in a "first assistant" position to that office and either has served in that position for at least 90 days, or was appointed to that position through the advice and consent process.
It requires the executive branch departments and agencies to report to Congress and Government Accountability Office (GAO) information about the temporary filling of vacant executive agency positions that require presidential appointment with Senate confirmation. The act requires the Comptroller General report to specified congressional committees, the president, and the Office of Personnel Management if an acting officer is determined to be serving longer than the 210 days (including applicable exceptions established by the act).
One of the additional requirements of the Act was to mandate that federal department and agencies create lines of succession plan in case of disaster or emergency. Though the Act was passed in 1998, many agencies didn't fulfill that requirement until after the September 11, 2001 terrorist attacks. President George W. Bush signed executive orders designating lines of succession in seven key departments within months after the attack. These succession plans do not affect the presidential line of succession, which is governed by the United States Constitution and the Presidential Succession Act.
The Department of Homeland Security is partially exempt from these provisions, as the Homeland Security Act of 2002 mandates that the Under Secretary of Homeland Security for Management is third in the line of succession for Secretary of Homeland Security as an explicit exception to the Federal Vacancies Reform Act.
Congressional Research Service summary
The Congressional Research Service summarizes the legislation, saying that it:
- Revises provisions regarding the filling of Federal vacancies to authorize the President, if an appointed officer of an executive agency (defined to include the Executive Office of the President and exclude the GAO) dies, resigns, or is otherwise unable to perform office functions, to direct a person who serves in an office for which appointment is required to perform such functions temporarily in an acting capacity, subject to specified time limitations. Retains the requirement that the first assistant of such officer shall perform such functions temporarily in an acting capacity as well, subject to specified time limitations and the limitations described below.
- Bars a person from serving as an acting officer if:
- on the date of the officer's inability to serve, such person serves in the position of first assistant;
- during the 365-day period preceding such date, such person served as first assistant for less than 90 days; and
- the President submits a nomination of such person to the Senate for appointment to such office.
- Applies vacancy provisions of the Federal judicial code with respect to the office of the Attorney General.
- Revises time limitations on temporary appointments, limiting service to 210 days, or, once a first or second nomination for the office is submitted to the Senate, to the period the nomination is pending. This period is modified around the time of a presidential transition (when a new president takes office), effectively extending the 210-day limit to 300 days.
- Makes vacancy and time limitation provisions applicable to any affected office for which an advice and consent appointment is required unless:
- another statutory provision expressly supersedes such provisions;
- a statutory provision in effect on this Act's enactment date expressly authorizes the President, a court, or the head of an executive department to designate an officer to perform the functions of a specified office temporarily in an acting capacity or designates an officer to perform functions of a specified office in such temporary acting capacity; or
- the President makes an appointment to fill a vacancy during a Senate recess.
- Sets forth additional requirements with respect to presidential nominations to fill vacant offices, requiring that an office, if it remains vacant after 210 days after the rejection, withdrawal, or return of a second presidential appointment nomination, remain vacant until a person is appointed by the President, by and with the advice and consent of the Senate. Permits, in such instance, only the head of an executive agency to perform office functions until such appointment is made in the case of an office other than the office of head of an executive agency.
- Provides that any action to perform a function of a vacant office by a person filling a vacancy in violation of requirements or by a person who is not filling such vacancy shall have no effect.
- Directs the heads of affected executive agencies to submit to the Comptroller General and to the Congress:
- notification of a vacancy and the date such vacancy occurred immediately upon occurrence of the vacancy;
- the name of the person serving in an acting capacity and the date such service began immediately upon the designation;
- the name of any person nominated to fill the vacancy and the date such nomination is submitted immediately upon submission; and
- the date of a rejection, withdrawal, or return of any nomination immediately upon such action.
- Requires the Comptroller General to report to specified congressional committees, the President, and the Office of Personnel Management any determination that an officer is serving longer than the prescribed 210-day period, including exceptions to such period.
- Sets forth additional provisions regarding vacancies existing during presidential inaugural transitions, independent establishments, and exceptions to requirements of this Act for certain board members of independent establishments or Government corporations or commissioners of the Federal Energy Regulatory Commission.
The legislation was introduced in the US Senate on June 16, 1998 as S. 2176 of the 105th Congress. The sponsor of the bill was Senator Fred Thompson of Tennessee, then chairman of the Senate Governmental Affairs Committee. Cloture was not invoked to have a final vote on this bill in the Senate. The division was mainly on partisan lines with mostly Republicans in support of the bill. The cloture vote failed on September 28, 1998 by a margin of 53-38. West Virginia Senator Robert Byrd was the only Democrat voting in favor of closing debate.
No action was seen in the House on this bill, however the legislation was added to the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (H.R. 4328), which finished the appropriations process for Congress for Fiscal Year 1999. The omnibus bill passed the House of Representatives on October 20, 1998 by a vote of 333–95. It then passed the Senate the following day on October 21, 1998 by a vote of 65–29. President Bill Clinton signed the bill the same day and it became Pub.L. 105–277.
In 2001, the Duke Law Journal published an article criticizing the nomination process and the Federal Vacancies Reform Act of 1998. The author, Joshua Stayn, asserts four constitutional problems with the act:
- The act allows the Senate to confirm or reject people whom the president never officially nominated. The act allows the Senate to treat a president's written notice of intent to nominate as a nomination, despite the fact that the president has yet to and may never nominate the named individual to an advice and consent position. Such treatment of a president's written notice of intent to nominate violates both the "formalist" and "functionalist" Supreme Court decisions on federal appointment issues.
- The act gives the Senate an impermissible role in making recess appointments. This second constitutional flaw is that it illegitimately interferes with the president's exercise of constitutional authority to make recess appointments.
- The act encroaches on the president's ability to nominate and control subordinate executive officers. It obligates each agency head to report any vacancy, temporary appointment, or official nomination directly and immediately to Congress, without clearance from the President.
- The act transfers too much of the Senate's power in the appointment process to the president in the year following a presidential transition. The act authorizes a newly elected president to appoint acting officers to every advice and consent position in the executive branch for up to 300 days after either inauguration day or the date on which the vacancy occurred. The act permits newly elected presidents to engage independently in precisely the kind of favoritism the framers sought to prevent, it is unconstitutional.
In 2018, upon the appointment of Matthew Whitaker as Acting Attorney General, some scholars and former government officials (including former Acting Solicitor General of the United States Neal Katyal) argued that the "senior officer or employee" clause may be unconstitutional when applied to principal officers, because the Appointments Clause of the Constitution requires Senate confirmation for these positions.
- Enacted by section 151 of Pub. L. No. 105-277, 112 Stat. 2681, 2681-611 (Oct. 21, 1998).
- Brannon, Valerie C. (July 20, 2018). "The Vacancies Act: A Legal Overview" (PDF). U.S. Congressional Research Service. pp. 9–13. Retrieved November 8, 2018. This article incorporates text from this source, which is in the public domain.
- "Federal Vacancies Act Reports". Government Accountability Office.
- "Bush Formalizes Lines of Succession at 7 Cabinet Departments". The New York Times. December 25, 2001. Retrieved April 20, 2011.
- Yglesias, Matthew (April 8, 2019). "Trump's possibly illegal designation of a new acting homeland security secretary, explained". Vox. Retrieved April 9, 2019.
- Brannon, Valerie C. (July 20, 2018). The Vacancies Act: A Legal Overview (PDF). Washington, DC: Congressional Research Service. Retrieved July 25, 2018.
- Roll call vote 289, via Senate.gov
- Roll call vote 538, via Clerk.House.gov
- Roll call vote 314, via Senate.gov
- Stayn, Joshua (2001). "Vacant Reform: Why the Federal Vacancies Reform Act of 1998 Is Unconstitutional" (PDF). Duke Law Journal. 50: 1511–1539. doi:10.2307/1373028.
- Katz, Eric (November 8, 2018). "Here's Why Some Are Questioning the Constitutionality of Trump's New Acting AG". Government Executive. Retrieved November 11, 2018.
- http://articles.sfgate.com/2011-03-08/news/28671351_1_tax-laws-tax-division-enforcer[dead link]
- Legislative Language: https://web.archive.org/web/20110330091109/http://www.gsa.gov/portal/content/103160
- Andrew Restuccia; Nahal Toosi. Trump nominees show up for work without waiting for Senate approval. Politico. 20 Oct 2017