Jul 24, 2006, Vacancy Act Violation Letter-Department of Commerce, July 12, 2006, B-307351: Senators Richard Blumenthal (D-CT), Sheldon Whitehouse (D-RI), and Mazie K. Hirono (D-HI)  in the U.S. District Court for the District of Columbia challenging the constitutionality of President Donald Trump’s appointment of Matthew Whitaker as the Acting Attorney General. The Federal Vacancies Reform Act (FVRA) of 1998 was enacted to provide a process for filling vacancies on a temporary basis. 2681-611 (Oct. 21, 1998), as amended, 5 U.S.C. As Congress may know, the Vacancies Reform Act established new requirements for the temporary filling of vacant executive agency positions that require Presidential appointment and Senate confirmation. Reconcile agency-specific succession statutes to address current ambiguities. Feb 7, 2019, Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: General Counsel, Department of the Air Force, B-329939: The law also specifies how long the vacant position can be filled by an acting official. The Vacancies Reform Act provides for the time period to be extended when the last day of any 210-day period is "a day on which the Senate is not in session." Congress enacted the FVRA under the assumption that the President and Congress would be substantially aligned in wanting to fill vacant executive branch positions that require Senate confirmation, while understanding that the natural process would take time. Thank you for your leadership in introducing the Accountability for Acting Officials Act. It’s time for Congress to act on a bipartisan basis to put an end to this abuse of power.”. The Senators’ complaint asks the Court to declare Whitaker’s appointment unconstitutional and to enjoin him from serving as, or carrying out the duties of, Acting Attorney General. This may incentivize a president to rely more heavily on the use of acting leadership, as it permits a president to appoint someone based on their loyalty to the president, rather than based on his or her qualifications and ability to do the job. , where clarifications could be useful. Because President Trump has denied the Senate the opportunity to consider whether Matthew Whitaker is fit to serve as a principal Officer of the United States, the full scope of concerns about Acting Attorney General Whitaker is unknown. Because Wolf is not the lawful acting secretary under either statute, his attempt to exercise the power of that office violates the Appointments Clause. Marshals Service were deployed in Portland, purportedly to “protect federal property.” It soon became clear, however, that their mission was much broader and that their tactics went far beyond permissible law enforcement behavior. Read a summary below and download the full paper as a PDF. Presidents of both parties have increasingly exploited loopholes or violated the current vacancies law. “Congress passed the FVRA to ensure that the President could not prevent the Senate from playing its constitutional role as a check on the executive branch when vacancies arise,” said Rachel Goodman, counsel at Protect Democracy. Jul 20, 2005, Vacancy Act Violation Letter-Department of Veterans Affairs, July 20, 2005, B-305188: Jun 18, 2014, Violation of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998, B-323112: Under the Act, Whitaker can carry out those functions without confirmation for 210 days and then gain another 210 days if the nominee fails to secure confirmation. This is to report, pursuant to section 3349(b) of title 5 of the United States Code, as added by the Federal Vacancies Reform Act of 1998 (Vacancies Reform Act), that we have found three instances in which acting executive branch officers have served longer than the 210-day period allowed under the Act. On July 31, 2020, Matthew Albence announced that he was retiring from federal service. Under the Act, Whitaker can carry out those functions without confirmation for 210 days and then gain another 210 days if the nominee fails to secure confirmation. “The language of the Federal Vacancies Reform Act is very clear,” Mendelson said. 105 -277, Div. Amend the FVRA to make explicit that in the event a Senate-confirmed official is fired, a career official should fill the vacancy until a new confirmation. L. No. Note: Each position has a unique Vacancy Identification Number which may be used to match vacancies with acting officials and nominees. Congress often isn’t notified when positions are filled. The FVRA, then, specifies who is eligible to serve in an acting capacity for a limited period of time before a new official is confirmed. Currently, approximately 30 percent of high-level positions at the Department of Homeland Security and Department of Defense lack the Senate-confirmed leadership they are supposed to have.1 This leaves these critical agencies lacking effective leadership during a time of national crisis. 1, §151, 112 Stat. To do this, Congress must: The FVRA establishes the procedure for the President to temporarily fill certain vacancies within the executive branch while the President pursues a permanent appointment through the advice-and-consent process with the Senate. L. No. Mar 18, 2002, Vacancy Act Violation Letter-Institute of Museum and Library Services, May 18, 2001, B-287720: The FVRA should only be available to the President once agency-specific statute has been exhausted. Specifically, we are report... Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 (herein "the Vacancies Reform Act" or "Act") at the Department of Housing and Urban Development (HUD), Government National Mortgage Association (GNMA) with respect to the GNMA President position. Read the full letter below. Without exception for President Trump’s allies, principal officers who report directly to the President must be subject to a hearing and confirmed by the Senate,”, “President Trump has shown utter disregard for the bedrock constitutional plan for top executive branch officials to receive the advice and consent of the Senate before taking office,”, Complaint for Declaratory and Injunctive Relief, Defendants’ Motion for a Stay of Proceedings, Plaintiffs’ Opposition to Defendants’ Motion for a Stay, Defendants’ Reply in Support of Motion for a Stay, Democratic Senators Challenge Whitaker Appointment in Court, Senate Democrats sue to block Trump’s acting attorney general, Matt Whitaker, , The Washington Post (November 19, 2018), A critical lawsuit over the acting attorney general, The legal challenges to Matthew Whitaker’s appointment mount, Dem. 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