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Federal Vacancies Reform Act

Overview

The Appointments Clause of the Constitution mandates that high-ranking federal officials cannot serve without the advice and consent of the Senate. The Clause was added to the Constitution by the Founders to ensure that the highest offices in the land would be filled those who are competent to serve and owe their loyalty to the American people and the Constitution, not only to the President. The Federal Vacancies Reform Act (FVRA) of 1998 was enacted to provide a process for filling vacancies on a temporary basis. 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. 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.

Because presidents have sought ways to circumvent or have outright ignored the FVRA and the Appointments Clause, a core check that Congress has on executive agencies has been severely weakened. For Congress to fulfill its role as a co-equal branch, it must reassert its authority over the appointments process. To do this, Congress must:

  • Limit the powers of Acting officials over personnel;
  • Limit the amount of time that a position can be filled under the FVRA;
  • Clarify that the FVRA is not available when the President fires a Senate-confirmed official;
  • Require a public statement by the President to fill a position under the FVRA; and
  • Reconcile agency-specific succession statutes to address current ambiguities.

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. But the FVRA also includes limits on how long an acting official may serve in such a position. Thus, the FVRA was designed to bridge reasonable gaps in the appointment process, not to supplant the Senate confirmation process entirely.

Presidents of both parties have evaded the letter and spirit of the FVRA, but there have been unprecedented abuses under President Trump’s Administration.

We are working to reassert the FVRA in the following cases that have arisen during this period, and have also proposed reforms to strengthen Congress’s capacity to fulfill its Constitutional role. 

Read through each section for details. 

ASISTA v. Albence

Protect Democracy and the Constitutional Accountability Center filed a lawsuit alleging that Matthew Albence, the purported Acting Director of Immigration and Customs Enforcement (ICE), is not legally serving in that position and that any actions he takes under the authority of the office of ICE Director are therefore unlawful.

The lawsuit specifically challenges a new ICE policy altering the treatment of applicants for U visas, a legal status for noncitizen survivors of domestic violence, sexual assault, and other crimes who are assisting law enforcement in the investigation or prosecution of the crimes against them. In August 2019, ICE, at the direction of Albence, altered the standard for granting stays of removal, making it more difficult for applicants to fight deportation during the years-long wait for visa approval. The plaintiffs argue that the change is unlawful because, at the time he enacted it, Albence was serving illegally in violation of the Appointments Clause of the Constitution and related federal statutes.

The Appointments Clause and federal law require that the Director of ICE be confirmed by the Senate. The last Senate-confirmed Director resigned on January 20, 2017. Thus, there has not been a Senate-confirmed ICE Director for more than three years.

The Federal Vacancies Reform Act (FVRA) allows acting officers to temporarily carry out the duties of a federal office before it is filled through the Constitution’s mechanism of presidential nomination and Senate confirmation. However, the law only allows someone to serve in an “acting” capacity for an absolute maximum of 210 days after the failure of a second nomination for the position—a date which had passed before Albence issued the directive changing the U-visa policy. The lawsuit also names the Acting Secretary of the Department of Homeland Security and President Trump for allowing Albence to serve illegally.

“The Framers gave the Senate a role in appointments precisely so that the President wouldn’t be able to install officials whose only loyalty is to the White House,” said Rachel Goodman, Counsel for Protect Democracy. “That an unconfirmed Acting Director of ICE is dismantling an effective, congressionally-designed program underscores their wisdom.”

“It is deeply disturbing that ICE has been without a confirmed head for more than three years,” continued Brianne Gorod, Chief Counsel for the Constitutional Accountability Center. “This Administration should not be allowed to thumb its nose at the Constitution and laws passed by Congress to govern appointments—both of which assign the Senate a critical role in determining who is making immigration policy as the head of ICE.”

Protect Democracy and the Constitutional Accountability Center filed this lawsuit in the U.S. District Court for the District of Connecticut on behalf of ASISTA Immigration Assistance, an organization that fights for the dignity of immigrant survivors of violence in part by training and supporting attorneys who represent them, and Sanctuary for Families, an organization, which, through its Immigration Intervention Project, represents and advocates on behalf of gender violence survivors by defending them against deportation and assisting them in applying for and obtaining lawful immigration status.

“The U visa was created as a bipartisan tool to make communities safer and to provide protection for survivors who come forward. ICE must be held accountable for violating the law and blocking immigrant survivors of violence from gaining safety and justice,” said Cecelia Friedman Levin, Policy Director of ASISTA Immigration Assistance.

Background about the U-Visa Program

According to USCIS:

The U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. The legislation also helps law enforcement agencies to better serve victims of crimes.

According to a national survey conducted in 2011 by the National Immigrant Women’s Advocacy Project at American University, more than 75 percent of the U visa cases filed nationally were based on domestic violence, sexual assault, or human trafficking.

Case Documents

Press Coverage

Shannon Dooling, “Advocates In Conn. Sue ICE, Claiming Agency’s Acting-Director Is Serving Illegally,” WBUR Public Radio (February 20, 2020)

Seattle v. DHS

In October, 2019, the US Department of Homeland Security (DHS) announced changes to the naturalization process that will present significant barriers to citizenship for tens of thousands of non-wealthy applicants each year.

The new rules would have made it much harder to qualify for a fee waiver, and would have severely curtailed naturalization applications, particularly from low-income applicants. Research from Stanford University’s Immigration Policy Lab suggests that the new rules could have reduced the number of naturalization applications filed each year by as much as 10 percent.

Immigrants are typically not eligible to naturalize until they have lived as lawful permanent residents in the United States for five years, speak English, understand U.S. history and civics, and demonstrate a commitment to the U.S. Constitution. There is also a $725 application fee. U.S. Citizenship and Immigration Services currently waives the fee for those who cannot afford to pay it, which is approximately 40% of applicants. Under rules in place since 2010, lawful permanent residents (also commonly referred to as green card holders), who receive means-tested benefits from another government agency, are automatically entitled to a fee waiver, making the process easy for USCIS to administer and for applicants and service providers to complete. The new policy significantly increased the burden on applicants who wished to apply for a fee waiver, and made it impossible for some poor lawful permanent residents to apply at all.

On October 30, 2019, Protect Democracy, Advancing Justice-AAJC, the Seattle City Attorney’s Office, and Mayer Brown LLP filed suit in California on behalf of organizations and communities who will be irreparably harmed by the proposed changes to the naturalization process.

Plaintiffs are the City of Seattle and five naturalization legal service providers who serve low-income, citizenship-eligible legal permanent residents: Catholic Legal Immigration Network, Inc. (CLINIC), Central American Resource Center of California (CARECEN), Immigrant Legal Resource Center (ILRC), OneAmerica, and Self-Help for the Elderly.

On November 6, 2019, the organizations and communities challenging changes to the naturalization fee waiver process asked a federal court to immediately bar USCIS from implementing those changes until the pending lawsuit is resolved. They also added new claims to the case, asking the court to find that Ken Cuccinelli’s installation as acting head of USCIS was unlawful and that the proposed new rules are invalid as a result.

Cuccinelli was placed in the role of acting director in violation of the Federal Vacancies Reform Act (FVRA), which governs the process for filling a vacant executive branch position that is subject to Senate confirmation. The FVRA has been in the news as it also governs who succeeds Kevin McAleenan as acting Secretary of the Department of Homeland Security.

“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. “It gave the FVRA teeth by making all actions taken by illegally-appointed officials void.”

Case Documents

Press Coverage

Updates

Blumenthal v. Whitaker

On November 7, 2018, President Trump appointed Whitaker to oversee the Department of Justice – including the Special Counsel’s investigation – in violation of the Constitution’s Appointments Clause. 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.

On November 19, 2018, Protect Democracy and the Constitutional Accountability Center filed a complaint on behalf of U.S. 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 Constitution’s Appointments Clause requires that the Senate confirm high-level federal government officials, including the Attorney General, before they exercise the duties of the office. The Framers included this requirement to ensure that senior administration officials receive scrutiny by the American people’s representatives in Congress. The Appointments Clause is also meant to prevent the President, in the words of Alexander Hamilton in Federalist 76, from appointing officers with “no other merit than that of…possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays,” Blumenthal said. “President Trump is denying Senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation’s top law enforcement official. The reason is simple: Whitaker would never pass the advice and consent test. In selecting a so-called “constitutional nobody” and thwarting every Senator’s constitutional duty, Trump leaves us no choice but to seek recourse through the courts.”

“The stakes are too high to allow the president to install an unconfirmed lackey to lead the Department of Justice – a lackey whose stated purpose, apparently, is undermining a major investigation into the president. Unless the courts intercede, this troubling move creates a plain road map for persistent and deliberate evasion by the executive branch of the Senate’s constitutionally mandated advice and consent. Indeed, this appointment appears planned to accomplish that goal,” said Whitehouse.

“Donald Trump cannot subvert the Constitution to protect himself and evade accountability. We want the court to make clear that the Senate must confirm Matthew Whitaker’s appointment as Acting Attorney General—otherwise this temporary appointment violates the Constitution’s Appointments Clause. 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,” said Hirono.

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. However, issues that have come to light through public reporting underscore the importance of the Senate’s constitutional responsibility to offer advice and consent before high-level executive administrators assume office.

President Trump’s violation of the Constitution’s Appointments Clause, unilaterally preventing members of the Senate from voting on whether or not to consent to Matthew Whitaker serving as a principal Officer, leaves Senators no choice but to seek a remedy through the courts.

Anne Tindall, Counsel at Protect Democracy said, “Under the legal theory currently being advanced by the White House, the President could elevate a family member who worked for an agency to lead it without Senate confirmation. The prospect that the Attorney General might seek to serve the President, rather than the American people, reaffirms the importance of a confirmation process that follows the Constitution.”

“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,” added Elizabeth Wydra, President of Constitutional Accountability Center, a public interest think tank and law firm dedicated to promoting the progressive promise of the Constitution’s text, history, and values. “The prospect that a president’s high-level executive branch appointments would be influenced by personal, rather than public, interests is one key reason why the nation’s Founders required such appointees to receive the advice and consent of the Senate in the first place.”

Case Documents

 Press Coverage

Don't Shoot Portland v. Wolf

Protect Democracy, Debevoise & Plimpton LLP, and Perkins Coie LLP filed a lawsuit on July 27, 2020 on behalf of Don’t Shoot Portland, an organization founded by Black Lives Matter activist Teressa Raiford; Wall of Moms and its organizer, Bev Barnum; and protesters Demetria Hester, Danialle James, Sabrina Cerquera, and Lisa Kipersztok. The lawsuit contends that federal law enforcement officers have exceeded the limits of their authority in Portland, Oregon, where protests have persisted since the killing of George Floyd, a Black man, by police in Minneapolis.

On approximately July 4, 2020, federal agents from the Department of Homeland Security (DHS) and the U.S. 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. Video footage showed the officers gassing, beating, and kidnapping peaceful protesters while wearing no badges or name tags and driving unmarked vehicles.

One of the claims brought forth by the lawsuit is that Department of Homeland Security (DHS) Acting Secretary Chad Wolf, who was neither nominated by the president nor confirmed by the Senate, is unlawfully serving in his role, making his orders regarding the Portland deployment void.

Our counsel, Ben Berwick and Rachel Homer published a Lawfare piece titled “The Senate Should Ask Chad Wolf About His Illegal Appointment,” explaining the legal context in which Wolf’s tenure violates the law and the Constitution; boiled down to the following four propositions:

  1. Wolf is not the acting secretary of homeland security under the DHS succession statute.
  2. The FVRA does not control the order of succession when the office of the secretary is vacant; but even if it did, Wolf would not be the acting secretary because the applicable time limit has expired.
  3. Because Wolf is not the lawful acting secretary under either statute, his attempt to exercise the power of that office violates the Appointments Clause.
  4. Because Wolf is not the lawful acting secretary, many of his actions are null and void.

For more information about all of the claims made in this lawsuit, visit the Don’t Shoot Portland and Wall of Moms v. Wolf case page.

Our Reform Work

The Problem

Bypassing the Senate with acting positions. During the Obama administration, the Senate and President were unable to agree on nominees to fill a variety of vacancies from the FEC, NLRB, DOJ, and Treasury. The Senate wanted to leave some positions vacant. In a number of cases, the President tried to bypass Congress to fill open slots, including at NLRB, DOJ, and Treasury, in addition to Inspector General roles across the government. Prof. Anne O’Connell has noted that the Obama administration shifted to using acting positions in its second term, even after Congress passed the 2012 Presidential Appointment Streamlining Act, which explicitly relinquished Congressional authority over certain positions.

President Trump has bypassed Congress to fill vacancies across a much larger portion of the federal government (albeit for sometimes different reasons). President Trump has used the FVRA to fill positions ranging from U.S. Attorneys to independent commissions and agencies like the SEC and CFPB and the Census Bureau to more senior roles such as the Associate Attorney General. In some cases, acting officials served out the time allowed under the FVRA, only to have another acting official take their place. As of August 2020, 136 Senate-confirmed positions have no nominee.

Lack of enforcement for FVRA. Finally, the Congressional Research Service has identified more technical concerns, where clarifications could be useful. There is currently no enforcement mechanism for the law. Congress often isn’t notified when positions are filled. Some authorizing statutes have succession plans that conflict with the FVRA, creating uncertainty about what discretionary appointment authority the President has in these situations.

Proposed Reforms

Protect Democracy created a policy paper outlining proposed reforms to strengthen Congress’s capacity to fulfill its Constitutional role. Read a summary below and download the full paper as a PDF here

 Limit the amount of time that a position can be filled under the FVRA

  • Amend the FVRA to clarify that a position must be filled within 210 days, and once that period comes to an end, the position should only be occupied by a career official in the agency.
  • Amend the FVRA to provide that if a nomination fails, the Acting position should be occupied by a career official.

Clarify that the FVRA is not available when the President fires an official

  • 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.

Require a public statement by the President to fill a position under the FVRA

  • Currently, the Comptroller General is required to report to Congress on when positions are filled under the FVRA, and the reports are not up to date. This should be changed to require the President to make a prompt public announcement.

Reconcile agency-specific succession statutes to address current ambiguities

  • Congress should add a provision to the FVRA clarifying that, in the event of any conflict, the agency-specific statute would control rather than the FVRA. The FVRA should only be available to the President once agency-specific statute has been exhausted.

Protect Democracy Op-Ed on FVRA

Justin Vail, “Who Runs The Department Of Homeland Security? Thanks To The Trump Administration, It’s Unclear.”, Talking Points Memo (November 20, 2019)

Letter to Representative Katie Porter

Protect Democracy and a cross-partisan group of good-government organizations sent a letter in strong support of Rep. Katie Porter’s (CA-45) Accountability for Acting Officials Act. The bill would close loopholes which have allowed an excessive number of acting officials to serve in leadership roles — skipping the required Senate confirmation process.

Protect Democracy’s Justin Vail explains, “The COVID-19 pandemic has shown why it is so important to have qualified officials in our government’s top jobs, and yet many roles critical to pandemic response are currently filled by temporary “acting” personnel who have essentially skipped their job interview with the Senate. Congresswoman Porter’s Accountability For Acting Officials Act would help restore functional leadership to federal agencies; it would discourage the president from bypassing the constitutionally mandated confirmation process while preserving the president’s ability to temporarily fill vacant positions with qualified individuals. Presidents of both parties have increasingly exploited loopholes or violated the current vacancies law. It’s time for Congress to act on a bipartisan basis to put an end to this abuse of power.”

Click here to view the PDF.

Updates

Case Documents

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