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. Dec 22, 2005, Vacancy Act Violation Letter-Department of Transportation, July 20, 2005, B-305187: § 3346, see Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. This is a joint website of United to Protect Democracy and the Protect Democracy Project. We have seen an increasing and excessive use of temporary leadership in positions that require Senate confirmation. In response to a request from Senator Ron Wyden, GAO issued a legal opinion regarding compliance with the Federal Vacancies Reform Act (FVRA) by agencies and departments with respect to positions that require Presidential appointment and Senate Confirmation (PAS positions) subject to the jurisdiction of the Senate Finance Committee. The FVRA has been in the news as it also governs who succeeds Kevin McAleenan as acting Secretary of the Department of Homeland Security. “The U visa was created as a bipartisan tool to make communities safer and to provide protection for survivors who come forward. There is also a $725 application fee. But at the end of that time, the officer may no longer serve; the act does not authorize service while a third nomination is pending. 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. “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,”, “It is deeply disturbing that ICE has been without a confirmed head for more than three years,”, “The U visa was created as a bipartisan tool to make communities safer and to provide protection for survivors who come forward. 3345 et seq., to designate individuals to perform the functions and duties of a vacant office temporarily in an acting capacity. On November 19, 2018, Protect Democracy and the Constitutional Accountability Center filed a complaint on behalf of U.S. Jul 18, 2016, Violation of the 210-day Limit Imposed by the Federal Vacancies Reform Act of 1998--Department of Health and Human Services, Office of the Assistant Secretary for Health, B-326794: In additio... 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 (Vacancies Reform Act). 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. Sep 15, 2000, Bid Protests, Appropriations Law & Other Legal Work, By mail to Janet Dolen, Office of General Counsel, Room 7182, 441 G Street N.W. This position requires Presidential appointment and Senate confirmation under the provisions of 42 U.S.C. President Trump has bypassed Congress to fill vacancies across a much larger portion of the federal government (albeit for sometimes different reasons). On approximately July 4, 2020, federal agents from the Department of Homeland Security (DHS) and the U.S. L. No. Prof. Anne O’Connell has noted that the, Obama administration shifted to using acting positions in its second term. 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. Plaintiffs’ Supplemental Summary Judgment Brief, Government’s Supplemental Summary Judgment Brief, announces plans to challenge rules change proposal, How we've been fighting these threats to our democracy, The Associated Press Election Transparency Project, VoteShield: Protecting Voter Registration Databases, Recruiting Poll Workers to Power Elections, Wisconsin: Protecting Voters and Democracy During the Pandemic, Ensuring Eligible WV Voters Are Not Disenfranchised, Re-Enfranchising South Carolina's Republican Primary Voters, Preventing and Deterring Election Manipulation by Elected Officials, Fighting the Wisconsin Legislature’s Power Grab, Defending Voters’ Right to Receive Information about Voting, North Carolina Citizens Sue for Their Right to Vote, LULAC v. Public Interest Legal Foundation, FOIA Lawsuit on Intelligence Community Politicization, Protecting Our Democracy Amid Coronavirus, Preventing and Deterring Unlawful Pardons, Preventing Militarization of Law Enforcement, Trump Campaign’s Illegal Non-Disclosure Agreements, How we're rebuilding our democracy for our future, Building a Stronger More Inclusive Democracy, Restoring the Balance of National Security Powers. Because Wolf is not the lawful acting secretary, many of his actions are null and void. 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. O.L.C. The lawsuit also names the Acting Secretary of the Department of Homeland Security and President Trump for allowing Albence to serve illegally. The Federal Vacancies Reform Act defines who can fulfill the duties of an “acting” official. The CFO at State may either be appointed by the President with Senate confirmation or designated by the President from am... 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 "the Act") at the Department of Energy (DOE), with respect to the Director of the Office of Science position. C, title I, § 151(b) , Oct. 21, 1998 , 112 Stat. 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 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. On July 31, 2020, Matthew Albence announced that he was retiring from federal service. Mar 3, 2017, Violation of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998-- Department of Energy, Director of the Office of Science, B-328888: The Act generall... 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 at the Department of the Army. Violation of the 210-Day Limit Imposed by the Vacancies Reform Act, B-287720, May 18, 2001 . C, title I, 112 Stat. 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. E-mail your comments or requests to GAO Section 3346 of the law provides that person may serve “for no longer than 210 days beginning on the date the vacancy occurs” or, “once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.” GAO's role under the Vacancies Reform Act is to collect information agencies are required to report to GAO, and GAO uses this information to report to Congress any violations of the time... 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 Export-Import Bank of the United States (Bank) with respect to the Inspector General position. Get Email Updates. 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. Pub. Read the full letter below. “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. 105-277, div. In accordance with the Vacancies Reform Act, the 210-day period began to run 90 days after the vacancy occurred on January 20, 2017—on April 20, 2017—and ended on November 16, 2017. “The language of the Federal Vacancies Reform Act is very clear,” Mendelson said. The FVRA imposes strict limits on who may serve as acting officials and for how long they may serve. SSA’s website indicates that Ms. Berryhill continued serving as Acting Commissioner after November 16, 2017. 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. “It gave the FVRA teeth by making all actions taken by illegally-appointed officials void.”. The Senate wanted to leave some positions vacant. Generally, designation or appointment under one of these methods confers upon the official the legal authority to carry out the duties of the office. (Added Pub. Donate to help us to scale up our efforts to educate, advocate, organize, and litigate on behalf of the values we all hold dear. 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. 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. Read through each section above for details. 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. L. No. 5 U.S.C. 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. 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. Citizenship Application Fee Waivers Challenged in Federal Lawsuit, USCIS Sued Over New Limits On Immigration Fee Waivers, Seattle joins in suing Trump administration over new rules for citizenship application fees, USCIS Changes Policy on Fee Waivers, Potentially Deterring Thousands of Citizenship Application, Trump Administration Makes It Harder for Immigrants to Claim Fee Waivers, Fee Waivers for Citizenship Applications Harder to Get Under New Rule, bars DHS from implementing unlawful changes to fees for citizenship, challenges legality of Ken Cuccinelli’s installation as acting director of USCIS, challenging DHS policy designed to keep legal immigrants from becoming citizens, “Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. The Federal Vacancies Reform Act limits officials acting in politically appointed roles to 210 days of service, plus an addition 90 for incoming administrations, with a few exceptions. 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. As my Post colleague Aaron Blake notes: “The Federal Vacancies Reform Act only allows acting officials to serve for 210 days after a vacancy is declared or … This position requires Presidential appointment and Senate confirmation under the provisions of 42 U.S.C. § 3345. The act replaces the prior Vacancies Act, and provides new rules for the temporary filling of vacant executive agency positions that require presidential appointment with Senate confirmation. Many of the reforms you include would further the original intent of the FVRA by encouraging timely nomination of qualified individuals from the White House and ensuring that a plan is in place to appoint permanent leadership. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays,”, “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. 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. 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. Each file contains the following information for that administration: Barack H. Obama Administration Vacancies (ZIP, 38 KB), George W. Bush Administration Vacancies (ZIP, 43 KB), William J. Clinton Administration Vacancies (ZIP, 10 KB). We are particularly concerned that the leadership vacuum in key positions has stymied the government’s ability to effectively address the crisis caused by COVID-19. 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: Protect Democracy created a policy paper outlining proposed reforms to strengthen Congress’s capacity to fulfill its Constitutional role. Learn More. 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. C, title I, 112 Stat. Aug 21, 2020, Department of Homeland Security—Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security, B-331650: Thanks To The Trump Administration, It’s Unclear.”, Talking Points Memo (November 20, 2019). 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. 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 … Years in which a first-term president is inaugurated, however, are treated differently. Specifically, we are reporting that the service of Nancy A. Berryhill as Acting Commissioner at SSA after November 17, 2017,... 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 State (State) with respect to the Chief Financial Officer (CFO) position. L. No. We reviewed the period covering January 20, 2017, to December 31,... 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 the Air Force (the Department) with respect to the General Counsel position. Sep 15, 2020, Department of Homeland SecurityꟷLegality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland SecurityꟷReconsideration, B-332451: that will present significant barriers to citizenship for tens of thousands of non-wealthy applicants each year. 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.”. 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. May 9, 2018, Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: Inspector General, Department of Housing and Urban Development, B-329918: T... 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 at the Department of Commerce. Government’s Corrected Motion for Summary Judgment, Plaintiffs’ Opposition to Motion for Summary Judgment and Cross-Motion for Summary Judgment, Government’s Reply in Support of Summary Judgment and Opposition to Cross-Motion for Summary Judgment, Plaintiffs’ Reply in Support of Cross-Motion for Summary Judgment, Advocates In Conn. Sue ICE, Claiming Agency’s Acting-Director Is Serving Illegally, In October, 2019, the US Department of Homeland Security (DHS) announced. 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. “Donald Trump cannot subvert the Constitution to protect himself and evade accountability. 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. Bypassing the Senate with acting positions. Note: The search functions on this website access only the vacancy information that federal departments and agencies have actually submitted to GAO. C, tit. 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 an official, Require a public statement by the President to fill a position under the FVRA, Reconcile agency-specific succession statutes to address current ambiguities, Justin Vail, “Who Runs The Department Of Homeland Security? Jul 24, 2006, Vacancy Act Violation Letter-Department of Commerce, July 12, 2006, B-307351: Nov 25, 2015, Violation of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998 for the Department of Veterans Affairs, B-326480: 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. The Act generally limi... 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 at the Department of Veterans Affairs. 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. Specifically, we are reporting that the service of Jennifer Fain who used the title of Acting Inspector General f... 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 Tennessee Valley Authority (TVA) with respect to the Inspector General position. GAO receives and records the information agencies report to the Comptroller General under the act. 2681-611-16, codified at 5 U.S.C.§§3345-3349d.) 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