[Congressional Record Volume 143, Number 131 (Friday, September 26, 1997)]
[Senate]
[Pages S10068-S10069]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[[Page S10068]]
SENATE RESOLUTION 128--RELATIVE TO THE VACANCIES ACT
Mr. THURMOND (for himself, Mr. Hatch, Mr. Grassley, Mr. Kyl, Mr.
Sessions, and Mr. DeWine) submitted the following resolution; which was
referred to the Committee on Governmental Affairs:
S. Res. 128
Whereas Congress enacted the Act entitled ``An Act to
authorize the temporary supplying of vacancies in the
executive departments'', approved July 23, 1868 (commonly
referred to as the ``Vacancies Act''), to--
(1) preclude the extended filling of a vacancy in an office
of an executive or military department subject to Senate
confirmation, without the submission of a Presidential
nomination;
(2) provide an exclusive means to temporarily fill such a
vacancy; and
(3) clarify the role of the Senate in the exercise of the
Senate's constitutional advice and consent powers in the
Presidential appointment of certain officers;
Whereas subchapter III of chapter 33 of title 5, United
States Code, includes a codification of the Vacancies Act,
and (pursuant to an amendment on August 17, 1988, to section
3345 of such title) specifically applies such vacancy
provisions to all Executive agencies, including the
Department of Justice;
Whereas the legislative history accompanying the 1988
amendment makes clear in the controlling committee report
that the general administrative authorizing provisions for
the Executive agencies, which include sections 509 and 510 of
title 28, United States Code, regarding the Department of
Justice, do not supersede the specific vacancy provisions in
title 5, United States Code;
Whereas there are statutory provisions of general
administrative authority applicable to every Executive
department and other Executive agencies that are similar to
sections 509 and 510 of title 28, United States Code,
relating to the Department of Justice;
Whereas despite the clear intent of Congress, the Attorney
General of the United States has continued to interpret the
provisions granting general administrative authority to the
Attorney General under sections 509 and 510 of title 28,
United States Code, to supersede the specific vacancy
provisions in title 5, United States Code; and
Whereas the interpretation of the Attorney General would--
(1) virtually nullify the vacancy provisions under
subchapter III of chapter 33 of title 5, United States Code;
(2) circumvent the clear intention of Congress to preclude
the extended filling of certain vacancies and provide for the
temporary filling of such vacancies; and
(3) subvert the constitutional authority and responsibility
of the Senate to advise and consent to certain appointments:
Now, therefore, be it
Resolved, That it is the sense of the Senate that--
(1) sections 3345, 3346, 3347, 3348, and 3349 of title 5,
United States Code (relating to the filling of vacancies in
certain offices), apply to all Executive agencies, including
the Department of Justice.
(2) the general administrative authorizing statutes of
Executive agencies, including sections 509 and 510 of title
28, United States Code, relating to the Department of
Justice, do not supersede the specific vacancy provisions
applicable to Executive agencies in title 5, United States
Code; and
(3) the Attorney General of the United States should--
(A) take such necessary actions to ensure that the
Department of Justice is in compliance with the statutory
requirements of such sections; and
(B) inform other Executive agencies to comply with the
vacancy provisions in title 5, United States Code.
Mr. THURMOND. Mr. President, today, I am submitting a sense-of-the
Senate resolution regarding the Vacancies Act. I am pleased to do so on
my behalf, and the distinguished chairman of the Senate Judiciary
Committee, and other members of the Judiciary Committee. Our purpose is
to clarify for the Attorney General that the Vacancies Act applies to
all executive departments and agencies, including the Department of
Justice.
The Vacancies Act provides that, except for recess periods, when an
official serving in an advise and consent position in an executive
agency leaves, the President may appoint certain individuals to serve
in that position in an acting capacity for no more than 120 days before
the nomination of a permanent replacement is forwarded for Senate
confirmation. The Vacancies Act, which is codified in sections 3345
through 3349 of title 5 of the United States Code, has existed in some
form since at least 1868.
This act is central to the advise and consent role of the Senate. By
limiting the time that the President may temporarily fill a vacant
advise and consent position, the act strongly encourages the President
to quickly nominate a permanent replacement.
I have become increasingly alarmed at the Clinton administration's
failure to nominate officials to fill the vacancies that have occurred
in executive branch positions, and particularly in the Department of
Justice. When we held a Justice Department oversight hearing in the
Judiciary Committee at the end of April, vacancies existed for the
Associate Attorney General, Solicitor General, Assistant Attorney
General for Civil Rights, Assistant Attorney General for the Criminal
Division, and Assistant Attorney General for the Office of Legal
Counsel.
I asked Attorney General Reno at the oversight hearing whether she
was concerned that a failure to nominate individuals for these
positions within the 120-day deadline would violate the Vacancies Act.
She responded in writing that the Justice Department was not bound by
the Vacancies Act. The letter indicated that she could fill these
vacancies pursuant to the Department's general administrative
authorizing statutes without regard to the Vacancies Act.
In my opinion, the Attorney General is simply wrong. Her
interpretation of the vacancies law in this area is nothing more than
an attempt to get around the law.
First, the plain language of the Vacancies Act since it was amended
in 1988 states that it applies to all executive departments and
agencies. By law, the Department of Justice is an executive department,
so Justice obviously is included. In fact, the original sponsor of the
act, Representative Trumbull, stated on the Senate floor in 1868 that
the act applied to, quote, ``any of the Departments.''
Also, the Congress flatly rejected the Attorney General's
interpretation when it amended the Vacancies Act in 1988. As explained
in the report of the Committee on Governmental Affairs, Congress made a
choice in 1988 of whether to repeal or revive the Vacancies Act, and it
chose the latter. The report stated that it was time ``to revitalize''
the Vacancies Act and ``make it relevant to the modern Presidential
appointments process.'' One method of accomplishing this was to assist
the President by expanding the number of days he had to submit a
nominee from 30 to 120 days after the vacancy was created. That way,
the President would have more time to submit a qualified replacement.
The committee report expressly rejected the Attorney General's flawed
interpretation. It stated that the Vacancies Act was the exclusive
authority for these appointments, and noted that the authorizing
statutes of an executive department or agency do not provide an
alternative means to fill vacancies. The amendment was made at the
recommendation of the Comptroller General, who has battled with the
Attorney General for many years over this flawed interpretation of
vacancies law.
Mr. President, this is a matter of great constitutional significance.
If the view of the Attorney General were correct, the President could
routinely ignore the advise and consent role of the Senate. In the
Justice Department, the President would never be obligated to nominate
any official below the Attorney General for Senate confirmation after
his first appointee left, as long as the President was content for the
person to serve in an acting capacity.
In fact, based on the Attorney General's reasoning, the President
apparently would not be bound by the Vacancies Act for officials in any
department. Every Federal department from Agriculture to Veterans
Affairs has authorizing statutes similar to Justice. Many Federal
agencies do, too. Therefore, based on the Attorney General's reasoning,
these departments and agencies can all claim to be exempt from the
Vacancies Act. In fact, when faced with the Vacancies Act, many make
the Attorney General's argument, and claim they aren't bound by it
either. Obviously, the Congress would never have intended for its
confirmation power to be circumvented in this manner.
The Framers of the Constitution surely would not be pleased. The
advise and consent role of the Senate is one of the fundamental checks
and balances included within our great system of Government. Under the
appointments clause of article II, section 2, of the Constitution, the
President has the exclusive power to nominate principal officers of the
United States, but the
[[Page S10069]]
Senate must give its advise and consent. As Justice Scalia stated for
the Supreme Court earlier this year, ``[T]he Appointments Clause * * *
is more than a matter of etiquette or protocol; it is among the
significant structural safeguards of the constitutional scheme.''
The involvement of the Senate is designed to promote a high quality
of appointments and curb executive abuses. In the words of Alexander
Hamilton in Federalist No. 76, ``The possibility of rejection [is] a
strong motive to care in processing.''
This resolution is designed to affirm the Senate's role by insisting
that the Attorney General stop interpreting the act out of existence.
It expressly states what should already be obvious from the plain
language of the Vacancies Act and its legislative history: that the
Vacancies Act applies to all executive departments and agencies,
including the Department of Justice. The resolution also states that
the Attorney General should ensure that the Department of Justice
complies with the act, and that she should inform other executive
agencies to abide by it, as well.
This is not just a technical issue. It is not an idle problem. At
some point this year, six advise and consent positions in the Justice
Department have been in violation of the Vacancies Act. The position of
the Assistant Attorney General for the Criminal Division has been
vacant for over 2 years. This is an excellent example of the problem
the Vacancies Act was designed to prevent. The Nation's chief law
enforcement agency has been without a confirmed chief for crime since
August 31, 1995. No name has been forwarded in the 9 months that this
Congress has been in session. Mr. President, what message does that
send about the Clinton administration's commitment to fighting crime?
In the meantime, the Attorney General has been in the middle of a
tremendous controversy surrounding her reluctance to seek the
appointment of an independent counsel to investigate apparently illegal
campaign fundraising practices. Would not having a politically
accountable chief of the Criminal Division be helpful to her in
analyzing whether crimes were committed?
Also, consider the Office of Legal Counsel. Walter Dellinger was
confirmed to head OLC in 1993, but he was very controversial. Many
members of this body could not support him. Nevertheless, effective
July 1, 1996, the Attorney General made Mr. Dellinger acting Solicitor
General. The Senate may not have confirmed him to be Solicitor General.
Of course, we will never know because by simply naming him acting
Solicitor General, the administration avoided a fight over his
appointment. For an entire year, for a full term of the Supreme Court,
the United States was represented by a Solicitor General who was acting
in violation of the Vacancies Act, in violation of the law. The
President has just officially nominated someone else for the vacancy.
Moreover, Mr. Dellinger's appointment caused another violation of the
Vacancies Act. When the Attorney General moved Mr. Dellinger, she
appointed an acting chief of OLC, who served over 120 days without a
permanent nomination being submitted. Not only did this appointment
exceed 120 days, it wasn't even legal in the first place. The Vacancies
Act not only limits the amount of time someone can serve in an acting
capacity, it also limits who can serve. Only someone who was the first
assistant, which refers to the principal deputy, or someone who was
earlier confirmed to a different advice and consent position can serve
in the acting position. Mr. Dellinger's replacement did not meet either
of these requirements. Thus, the chief of OLC was serving in violation
of the Vacancies Act, in violation of the law, from the first day Mr.
Dellinger left.
Mr. President, the vacancies problem is not limited to the Department
of Justice. It can be found throughout the executive branch. The
Washington Post reported on August 29, 1997, that 30 percent of the top
470 political jobs in the administration remain unfilled. When
confronted with the Vacancies Act, many departments and agencies use
the Attorney General's argument and also claim not to be bound by the
act.
It is time to put the Attorney General's flawed interpretation of the
Vacancies Act to rest. Her reading of the Vacancies Act is a threat to
the advise and consent role of the Senate. I am hopeful that my
colleagues will join me and my cosponsors in supporting this simple but
significant resolution. Let us adopt this important resolution, and
reaffirm our constitutional duty of advise and consent.
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