A top Justice Dept. official is resigning. The Federal Vacancies Act has a solution.
Rachel Brand’s resignation — and who fills that role — has implications for the Mueller investigation.
Associate Attorney General Rachel Brand, the No. 3 official in charge at the Justice Department, is reportedly leaving the administration.
Brand’s departure is making ripples because, as third in command at DOJ, she was next in line to oversee special counsel Robert Mueller’s Russia investigation should the embattled Deputy Attorney General Rod Rosenstein lose his job, or be forced to recuse himself from the investigation entirely.
So the question now is who will take over the critical job.
The associate attorney general is appointed by the president, and confirmed by the Senate. But until President Donald Trump names someone to fill that slot, an acting associate attorney general will temporarily fill that role.
According to the Justice Department, the solicitor general is next in line to be the acting associate attorney general. But the president could also choose another Senate-confirmed official to fill that role.
But a lot can happen in 210 days — the standard time period an “acting” can serve under the Federal Vacancies Act of 1998, which governs who can serve in temporary positions, how long he or she can serve, and how an agency’s work gets (or doesn’t get) done after that period of service expires.
Anne Joseph O’Connell, a law professor at Berkeley and an expert on the Vacancies Act, dissected the law for Vox, explaining why and when it applies and its complications and gray areas.
O’Connell told Vox the the law isn’t just relevant to Trump’s administration. “But just given the delays both in nomination and confirmation of agency officials in recent administrations the Vacancies Act — although it hasn’t kind of the same media attention — comes into play.”
This interview has been edited and condensed.
Jen Kirby
What, exactly, is the Federal Vacancies Act? What does it accomplish?
Anne O’Connell
We’ve had statutes since basically the founding of the country to help fill in positions that haven’t been filled through the constitutional mechanism — you get appointed by the president and confirmed by the Senate — if you’re a really high-level officer, or what we call “principal officers.”
The Constitution says if you’re still an important person, but not quite as important as principal officers, we call you an “inferior officer.” The Constitution says the default is that those “inferior officers” are also appointed by the president and confirmed by the Senate.
But if Congress chooses otherwise, they can be appointed by the president alone, by the head of the department, or by a court of law.
There can be, both for principal and inferior officers who go through the Senate confirmation process, vacancies. These statutes help to fill those holes temporarily.
Jen Kirby
What is the difference between “principal officer” and “inferior officer”?
Anne O’Connell
This is actually still a somewhat contested area of law. The idea is that if you exercise significant authority, you’re an officer as opposed to an employee. The difference between principal and inferior officer is also fuzzy, and comes down to whether you’re directed and supervised by someone other than the president.
So it’s not a bright line. But a Cabinet secretary like the attorney general is directed and supervised by no one else but the president, so Cabinet secretaries are definitely principal officers. I think assistant secretaries — so in the Department of Justice, the equivalent would be assistant attorneys general — those positions are inferior officer positions.
But note that AAG positions in the Department of Justice are appointed by the president, confirmed by the Senate, even though they’re inferior officers.
Congress, by legislation, can change that. Normally it doesn’t like to, because why would you go from a Senate-confirmed position to just allowing the president by himself to appoint?
Congress is giving up power. It happens — there are obviously positions that Congress chooses to just have the president appoint. In 2012, there was the Presidential Appointment Streamlining Act, which, because of all these confirmation delays, stripped Senate confirmation from about 160 positions.
Jen Kirby
So why are we talking about the Federal Vacancies Act now?
Anne O’Connell
The Vacancies Act basically does three things. The first thing is identify a set of positions that can be filled temporarily. Basically all positions in Cabinet departments and executive agencies that are normally presidentially appointed and Senate-confirmed can be filled under the Vacancies Act.
This excludes most independent regulatory commissions, such as the National Labor Relations Board members, the commissioners of the Federal Communications Commission, the Federal Trade Commission, and the Securities and Exchange Commission.
All of those commissioners — or board members in the case of the NLRB — are appointed by the president and confirmed by the Senate, but they are not covered by the Vacancies Act. So when there are vacancies in the NLRB with regard to its five members, you cannot have acting NLRB members. There are a few exceptions. But generally, independent regulatory commissions are not covered.
So that’s the first point of the Vacancies Act: It defines a set of positions that can be filled temporarily.
Jen Kirby
The second?
Anne O’Connell
The second thing the Vacancies Act does is say who can fill those positions. There are basically three categories of people who can fill in in an “acting capacity.” So who are those people?
The first category, which is the default category, are called “first assistants” to the particular office. So, for example, if the attorney general position is vacant, the first assistant to the attorney general is the deputy attorney general. That’s the default of who serves — but there are other categories the president can choose [from] if he doesn’t want to go with the default of the first assistant.
The second category the president could choose is someone who’s been confirmed to a different position, even if it’s in a different agency. So for example, with the Consumer Financial Protection Bureau (CFPB) — let’s put aside the question about whether the Vacancies Act applies — but if the Vacancies Act applies, who did the president choose? Mick Mulvaney, who was Senate-confirmed to be director of Office of Management and Budget (OMB).
Another an example would be Sally Yates. At the change of the White House, Sally Yates was the deputy attorney general, so she was the first assistant — that would be the default of who served as acting attorney general. But when she was fired, the person chosen was the US attorney for the Eastern District of Virginia [Dana Boente], who’s someone else appointed by the president and confirmed by the Senate.
Jen Kirby
But when it comes to Senate-confirmed, does it matter the administration? Wasn’t Dana Boente confirmed as US attorney under Obama?
Anne O’Connell
It doesn’t matter. They don’t have to get reconfirmed by a new president. Maybe the best example is Secretary [Robert] Gates as Defense Secretary. He was secretary of defense at the end of George W. Bush’s administration, and President Obama kept him on, and he didn’t have to get confirmed again by the Senate.
Jen Kirby
Gotcha. There’s still one more category to go, correct?
Anne O’Connell
Now the third category of potential people who can serve in an acting role is someone who is at least paid at the level of GS-15 on the federal pay scale or higher. You could call that third category a “senior careerist.”
For example, at the start of President Trump’s administration, in the Department of Treasury, he needed his secretary of the Treasury, and it was clear that Mnuchin was not going to be confirmed right away.
So the acting Treasury secretary was Adam Szubin. Adam was not the first assistant; he wasn’t presidentially appointed, confirmed by the Senate. He was the third category — he was a senior-enough careerist. He was someone acceptable to the Trump White House to serve in this acting capacity until Mnuchin was confirmed.
So if you think about it, basically, who can serve under the Vacancies Act? The first assistant is the default, or the president can choose another Senate-confirmed person. You could think of that person as more politically accountable, because they were chosen by the president and confirmed by the Senate for some other job.
Or the president could choose someone who you might call as more expert — someone in the bureaucracy who’s gotten to a high-enough-level position. And you might think differently about “actings” depending on which group the person is being pulled from.
Jen Kirby
Okay, so the Federal Vacancies Act determines which positions can be temporarily filled, and who can fill them. What’s the third thing it achieves?
Anne O’Connell
The last category of the Vacancies Act is how long these acting officers can serve. So the first category is what positions are covered by the Vacancies Act; the second thing is who can staff them as an acting official; and the third is how long can someone serve as an acting officials.
Normally, it’s 210 days. But there’s so many complexities: Is someone nominated for the job? Has Congress gone into the recess? If the nomination is returned, the clock can restart.
The first thing to know is that generally, it’s limited to how long someone can serve.
No. 2, in the first year of the administration, it’s longer because there’s many more positions to fill because most people do resign at the end of the previous administration. Nomination and confirmation takes time, and so the 1998 Vacancies Act gives 300 days for vacant positions at the start of the administration.
Jen Kirby
So it sounds like the Vacancies Act kind of defers to the executive branch, so it has time and flexibility to fill spots. Is that a fair characterization?
Anne O’Connell
I think it’s a compromise. Before the 1998 Act, President Clinton was criticized for having acting officials under an earlier Vacancies Act that served past the statutory deadlines — but the earlier statute did not have considerable consequences for that. I mean, Congress could hold hearings and be upset.
It was Bill Lann Lee, who was the acting assistant attorney general for civil rights in the Department of Justice and served past the statutory deadline. But his actions were not considered to be illegal; there was nothing that voided his action.
And so what the 1998 Vacancies Act did was try to broker a compromise to allow the executive branch to staff these important jobs, but put a limit on it to protect the Senate’s prerogative of confirmation in these positions.
So the most important thing the Vacancies Act in 1998 did — in addition to identifying the [eligible] positions, saying who could fill them and for how long — was specify consequences. So if there’s someone serving as an acting officer who does not meet those three categories I described, or if there’s someone who’s serving past the time limits in the act, generally, anything that person does is legally void.
Jen Kirby
So it sounds like, contrary to my first assumption, this 1998 Federal Vacancies Act intended to give a little more power back to Congress.
Anne O’Connell
Now, I should say there is a big loophole — I call it a loophole; the Vacancies Act does not call it a loophole. All these positions covered by the Vacancies Act that were vacant at the start of President Trump’s administration, those got to be filled for 300 days by someone in one of those three categories. Well, the 300-day mark has passed. Now that job is vacant. Trump doesn’t get to choose a second acting. You might think, if you haven’t actually nominated and gotten someone confirmed, what do you do?
Jen Kirby
What do you do?
Anne O’Connell
Basically, the Vacancies Act allows agencies to delegate certain tasks of that vacant position to other people in the agency.
The formal word would be “subdelegation” — you delegate duties to other positions. Now, the Vacancies Act says there are certain functions and duties of a vacant office that can’t be delegated to someone else — but those functions and duties have to be specified by statute or by agency regulation. It turns out, for a lot of vacant positions, most of the functions and duties are tasks that can be assigned to someone else.
Let me give a concrete example. In the Department of Agriculture, there was recently a regulation issued involving school lunches, and it was done past the 300-day mark. Normally, regulation of school lunches would be done by the undersecretary for food, nutrition, and consumer services at the Department of Agriculture.
But in late November 2017 — right past the 300-day mark — there was no confirmed undersecretary for food, nutrition, and consumer services. You couldn’t have an acting undersecretary because the 300-day mark had passed, so what did the Department of Agriculture do? It the delegated tasks of that position to the deputy undersecretary, a different job, which is not confirmed by the Senate.
Then, the person who had been acting undersecretary for food, nutrition, and consumer services was moved into the deputy role — he became the acting deputy undersecretary for food, nutrition, and consumer services.
Jen Kirby
So basically, it’s like demoting somebody and giving them the exact same amount of work they had before.
Anne O’Connell
That’s exactly what it is.
For me at least, I find this to be less transparent than using actings under the Vacancies Act, because when you identify someone to serve in an acting capacity, it’s on the website.
You can go to the leadership tab, and you can see that so-and-so is the acting assistant secretary or acting undersecretary — and you know what that acting assistant secretary or acting undersecretary does.
But after time limits have passed on the Vacancies Act, for certain tasks that can be delegated, some appear online, but they’re hard to find. And some tasks can go to one person, and other tasks can go to a different person.
Jen Kirby
That does sound pretty opaque.
Anne O’Connell
There are some constraints. You might think, doesn’t this loophole just swallow the entire thing? The answer is no because, No. 1, under the Vacancies Act, things that are specific functions and duties of a particular office can’t be delegated.
No. 2, the Constitution says significant authority has to be exercised by officers. So there are limits, but it’s definitely less transparent.
Jen Kirby
So basically, a president couldn’t get away without having a secretary of agriculture because there are certain duties that only he or she could carry out. But with some undersecretaries or deputy undersecretaries, you can reshuffle responsibilities and get away with leaving those positions vacant.
Anne O’Connell
That’s right. I should say, for the functions and duties you can’t delegate down, you can delegate up. So let’s say that undersecretary for food, nutrition, and consumer services — you could also just have the secretary of agriculture do those tasks. Except for function and duties specifically assigned to the office, we allow this delegation down because it’s easier. There are more people below than people above.
Just to throw a twist in all of this, there are some conservative judges who believe that the Vacancies Act is unconstitutional for these very top positions. Justice Clarence Thomas, for example.
He wrote a concurrence earlier in 2017 in the Southwest General case [involving the Vacancies Act] where he said the Vacancies Act with regard to “principal officers” — to the very top people — is unconstitutional based on the Appointments Clause.
So Justice Thomas believes you can’t have an acting Treasury secretary or an acting attorney general. He believes the only person who can serve in that position is someone appointed by the president and confirmed by the Senate.
I should say that it was only him on that opinion. I mean, if that opinion were to gain five votes — given presidential transitions and the delays in staffing the executive branch — there could be real problems.
Jen Kirby
Seriously, sounds like things would grind to a halt.
I’m curious, though: When it comes to the Trump administration, is it relying more heavily on the Vacancies Act to fill positions — or delegate tasks — than previous administrations?
Anne O’Connell
I don’t think President Trump is unique with regard either to the use of actings or with regard to the use of subdelegation. If you look at the last two years of President Obama’s administration — when Republicans controlled the Senate — Obama submitted far fewer nominations in his final two years of his second term than other two-term presidents.
Obamas was relying heavily on actings. And once a position becomes vacant, at that point, it wasn’t the beginning [of his administration], so he only had 210 days. Then he subdelegated once the 210 days had expired.
Jen Kirby
I’m wondering if you can explain a few Vacancies Act cases that have come up recently with the Trump administration. The first one that struck me is the acting US attorneys. Attorney General Jeff Sessions appointed interim US attorneys after the tenure for “actings” ran out, but they were chosen from the outside.
Anne O’Connell
There are also some specific statutes that govern particular positions, and allow for people to serve in a temporary capacity — and the US attorneys is one example. The current statute, since 2007, allows that if there is a vacancy in a US attorney position, the attorney general can name an interim US attorney, and that person can serve for 120 days.
If there’s still not a confirmed US attorney after the 120 days, the district court in which the US attorney position is located can choose an interim US attorney until a person is confirmed.
In a way, like the Vacancies Act, it’s a compromise. It allows the president or his senior officials — in this case, the attorney general — to put someone in for limited time. Then we go to this expertise model, where the district court is choosing someone.
Jen Kirby
How about the CFPB? Earlier on, you mentioned there’s a question of whether the Vacancies Act applies in this case. Can you explain the legal argument?
Anne O’Connell
Dodd-Frank, which created the CFPB in 2010, has a provision that says when the director of the CFPB is absent or unavailable, the deputy director shall serve as the acting director. So there’s an initial question: Is the resignation of the CFPB director an absence or unavailability?
Some people would argue that absence or unavailability is just temporary — someone being sick, or the like — and not a vacancy, not someone leaving. The [Department of Justice’s] Office of Legal Counsel said this statute applied when [former CFPB Director Richard] Cordray left, and the deputy director under the statute would become the acting director.
But the second question is: Does the Vacancies Act then trump that? Under the Office of Legal Counsel’s interpretation, CFPB Deputy Director Leandra English would be the acting director if the president did nothing. But if the president wants to choose someone under the Vacancies Act, the Office of Legal Counsel’s position is that the president can do so.
That’s the dispute: Does the Vacancies Act apply? There’s the statutory interpretation question of how do you read both the language of Dodd-Frank and the language of the Vacancies Act.
Jen Kirby
In our conversation, a couple of issues came up — such as the subdelegation — that seem less than transparent. Is there any sort of movement to look at the Vacancies Act in its current form to revisit or improve?
Anne O’Connell
It is discussed by certain policy circles, but ... not widely. Many think that the Vacancies Act is a good compromise. In a first, best world, we would have quick nominations, where vetting was good, and we would have pretty quick confirmations — and the need to have these stand-ins would be much less. We don’t live in that world.
So in this second- or third-best world, the Vacancies Act allows the executive branch in all its complexity to function.
There’s this interesting question of who should be the actings? Are you someone who cares a lot about political accountability? If you’re someone who cares about political accountability, you would favor actings who were drawn from the first assistant ranks, and from other Senate-confirmed positions. There’s an accountability rationale for choosing those people to serve as actings.
If you’re someone — and I think I put myself more in this camp — if you’re someone who’s a proponent of expertise in these critical positions, you’re going to favor actings drawn from that third category of senior careerist.
So in terms of reforms, maybe there are certain positions where politics should matter less and expertise should matter more.
Jen Kirby
That’s fascinating, especially given the discussion around the Trump administration’s aversion to the “administrative state.” If doesn’t appoint people speedily, the fallback would be those experts. That seems like a good cushion.
Anne O’Connell
I share many objectives with the Partnership for Public Service, which is a nonpartisan organization dedicated to better staffing of agencies, and they push very hard for faster nominations, faster confirmations. The head of the Partnership for Public Service, in the past year or so, often talks of acting officials as being like substitute teachers; they lack the authority.
Maybe that’s true to some extent. But maybe we could better empower those individuals, particularly those drawn from the senior careerist ranks. Those individuals are critical to the functioning of government.
Jen Kirby
It sounds as if some elements of the Vacancies Act are a bit fuzzy. Does this lead to constant court challenges?
Anne O’Connell
I think what’s most interesting, actually, is how little the courts play a role. It’s really hard to get standing to sue under the Appointments Clause of the Constitution. There obviously are lawsuits that bring these issues to the forefront, but so many of these issues are done administratively. The Office of Legal Counsel is consulted as to whether someone is a proper person under the Vacancies Act, and so a lot of it is counseling by the Office of Legal Counsel to various agencies.
Jen Kirby
Why is it so hard to challenge?
Anne O’Connell
How you challenge Vacancies Act violations is pretty tricky. They put some teeth into the Vacancies Act at the end of the Clinton administration that said everything you do, if you’re improperly doing it under the Vacancies Act, is legally void — or most everything is legally void.
Now let’s say instead, the person didn’t do anything. Then you don’t have an action to void. Typically in Republicans administrations, they’re more deregulatory than Democratic administrations, which are more regulatory, so they tend to doing more actions. Of course, deregulation sometimes takes action too, you have to repeal a regulation.
But I would say just, in general, it can be hard to find an actual action, even though they may be doing things, but it might not come in a particular concrete action; it might be giving advice or whatever.
Jen Kirby
So, hypothetically speaking, say the undersecretary in charge of school lunches puts out an order saying, “Every kid in America has to eat bacon every day.” That could be challenged? But if he just pushes paperwork, advises his colleagues about bacon-eating, it will be hard to challenge in court?
Anne O’Connell
Exactly.
Jen Kirby
This all just seems so critical to the way our government runs, and the general public would have no idea.
Anne O’Connell
There’s this great moment actually in the oral argument on this Southwest General case that was about nominees, and who could serve as acting. Justice Elena Kagan is questioning the lawyer on behalf of Southwest General, and Justice Kagan says, “Well, you could just go to the press to say that they violated the Vacancies Act, and isn’t this enough of a punishment?”
And the lawyer basically jokes, “The Vacancies Act is so complicated, that you go to the public and people would be like, huh?” It got quite the laugh at the Supreme Court.
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