Boundaries of the Federal Vacancies Reform Act

34 Pages Posted: 17 May 2019 Last revised: 5 Jul 2019

Date Written: April 15, 2019

Abstract

The Federal Vacancies Reform Act of 1998 (“FVRA”) authorizes the president to temporarily fill Senate-confirmed positions when the prior officeholder “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Does the FVRA apply when the officeholder was fired?

The FVRA was once a “rather obscure area of the law.” Unprecedented personnel turmoil in the Trump Administration, however, has thrust it into the national spotlight. The President has to date fired three cabinet secretaries—Secretary of State Rex Tillerson, Secretary of Veterans’ Affairs David Shulkin, and Secretary of Defense James Mattis—and replaced them with acting officers ostensibly under FVRA authority. Yet the interpretive question of whether the Act applies to removal has found conflicting answers the few times it has come up. On November 14, 2018, for instance, the Office of Legal Counsel (“OLC”) determined the FVRA would apply when the president fired the previous officeholder. Two weeks later, a federal judge concluded in dicta that the Act would not apply in that situation. This Note aims to clarify this critical, yet disputed, boundary of the FVRA.

This Note argues that the FVRA does not authorize the president to temporarily fill vacancies created by firing the prior officeholder. To arrive there, it examines the Act’s text and structure, its historical context, its legislative history, and relevant OLC and judicial opinions. It finds the Act is best read as encompassing vacancies created by the outgoing officer’s decisions or circumstances, but does not reach those forced by the president.

This Note finds such a result sensical but suboptimal. This interpretation laudably prevents a president from circumventing the Senate’s constitutional advice and consent role by firing a Senate-confirmed official only to install an unconfirmed replacement. But it also creates a policy problem. It leaves no mechanism for the president to temporarily replace most fired officers, even under urgent circumstances. Congress, this Note concludes, should respond by authorizing the president to temporarily replace a fired officer with the officer’s “first assistant,” but not with officials otherwise eligible for appointment under the FVRA. Such an amendment would protect the Senate’s advice and consent role while allowing the relevant agency to function until a permanent replacement took office.

Keywords: Federal Vacancies Reform Act, Appointments Clause, Statutory Interpretation, Succession, Appointments

Suggested Citation

Miller-Gootnick, Ben, Boundaries of the Federal Vacancies Reform Act (April 15, 2019). 56 Harv. J. on Legis. 459 (2019). Available at SSRN: https://ssrn.com/abstract=3372389

Ben Miller-Gootnick (Contact Author)

Harvard Law School ( email )

501, Pound,Massachusetts Avenue
Cambridge, MA 02138
United States

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