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. (Pub. Results include only vacancy information that federal departments and agencies have actually submitted to GAO. 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). , even after Congress passed the 2012 Presidential Appointment Streamlining Act, which explicitly relinquished Congressional authority over certain positions. The Director of the Office of Science is a Presidential appointment subject to Senate confirmation, and thus is s... 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 Centers for Medicare & Medicaid Services (CMS), within the Department of Health and Human Services, with respect to the Administrator position. 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. Mar 30, 2015, Violation of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998--Department of Justice, Office of Victims of Crime, B-323944: The Vacancies Act normally provides for an initial period of 210 days in which an acting official can fill the role without the president having made a nomination for a permanent replacement. Judge Chesney ruled that Plaintiffs were likely to succeed in their claim that USCIS failed to properly engage in the notice-and-comment rulemaking required by the Administrative Procedure Act and that the agency’s new rules making it much harder for low-income residents to apply for fee waivers for naturalization and other immigration benefits are invalid as a result. “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. 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. In this circumstance, the last day of the period is deemed to be the second day the Senate is next in session and … § 3345. Years in which a first-term president is inaugurated, however, are treated differently. Vacancy information for prior administrations is provided below. 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. As nonpartisan organizations with an interest in good governance, we write to offer our strong support for the Accountability for Acting Officials Act, which would help to ensure the timely nomination and confirmation of qualified leadership across the Executive Branch by closing increasingly problematic loopholes in the Federal Vacancies Reform Act of 1998 (FVRA). 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. 3504, and thus... 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), at the Department of Housing and Urban Development (HUD). This position requires Presidential appointment and Senate confirmation under the provisions of 42 U.S.C. 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. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays,” Blumenthal said. The law also specifies how long the vacant position can be filled by an acting official. May 17, 2012, Federal Vacancies Reform Act of 1998-Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice, B-310780: “The U visa was created as a bipartisan tool to make communities safer and to provide protection for survivors who come forward. While it is critical to have a structure set up to temporarily fill the leadership vacuum upon a vacancy, that structure should only be used as a stopgap measure while awaiting a qualified nominee to be confirmed. 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. E-mail your comments or requests to GAO When the Senate rejects a nominee for a vacancy, the FVRA allows an acting officer to serve for another 210-day period. 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. Amend the FVRA to provide that if a nomination fails, the Acting position should be occupied by a career official. There is also a $725 application fee. 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 Federal Vacancies Reform Act of 1998 (Vacancies Act) generally provides the exclusive means by which a government employee may temporarily perform the nondelegable functions and duties of a vacant advice-and-consent position in an executive agency. 5 U.S.C. Bypassing the Senate with acting positions. The legislation also helps law enforcement agencies to better serve victims of crimes. Importantly, your bill would address the unique circumstances facing vacant inspectors general offices to ensure that these critical watchdogs can operate effectively and ethically while waiting for a permanent inspector general to be confirmed. 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. Read a summary below and download the full paper as a PDF. For this reason, the results may not be complete or the most up-to-date information regarding those vacancies. (Form updated April 24, 2001). As you know, the Vacancies Reform Act establishes requirements for the temporary filling of vacant executive agency positions that require Presidential appointment and Senate conf... By letter dated April 16, 2008, Congress requested our opinion whether the service of Steven G. Bradbury as the senior official in the Office of Legal Counsel, U.S. Department of Justice, is in violation of the Federal Vacancies Reform Act of 1998. Because Wolf is not the lawful acting secretary, many of his actions are null and void. For this reason, the results may not be complete or the most up-to-date information regarding those vacancies. (use the Vacancy Identification Number if you contact GAO about a particular vacancy.). On October 30, 2019, Protect Democracy, Advancing Justice-AAJC, the Seattle City Attorney’s Office, and Mayer Brown LLP. 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. 105-277, div. This leaves these critical agencies lacking effective leadership during a time of national crisis. But he’s back, Judge in SF blocks Trump rule ending fee exemptions for poor seeking citizenship, Federal Court Halts Trump Administration Changes to Fee Waiver for Citizenship, Another Trump Policy Aimed at Poor Migrants Blocked by Judge, Judge Blocks Trump’s New Limits On Immigration Fee Waivers, Judge Blocks Trump Rule on Citizenship Fee Waivers, Who Runs The Department Of Homeland Security? 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.” 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. Pub. 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. 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. In the meantime, a federal agency is being run by someone without confirmation (Whitaker’s earlier confirmation for U.S. Attorney would not count). When Congress revamped the vacancies regime in the Federal Vacancies Reform Act of 1998 (FVRA), it prioritized flexibility over constraints, and worried more about the specter of a hostile Senate than an indifferent one. 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. If a second nomination is rejected, then an officer may serve one more 210-day period. Jun 27, 2014, Violations of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998--General Counsel, Department of Health and Human Services, B-318244: Dec 22, 2005, Vacancy Act Violation Letter-Department of Transportation, July 20, 2005, B-305187: 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. For Congress to fulfill its role as a co-equal branch, it must reassert its authority over the appointments process. 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. 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. For example, your legislation would require a “first assistant” to have served in that position prior to a vacancy to be eligible to serve as the acting official and would clarify that the FVRA is superseded by agency-specific statutes that prescribe different procedures in the event of a vacancy. that will present significant barriers to citizenship for tens of thousands of non-wealthy applicants each year. Dear Mr. President: 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). As Congress may know, the Vacancies Reform Act established new requirements for the temporary filling of vacant executive agency positions that require Presidential appointment and Senate confirmation. Indeed, this appointment appears planned to accomplish that goal,” said Whitehouse. explaining the legal context in which Wolf’s tenure violates the law and the Constitution; boiled down to the following four propositions: Wolf is not the acting secretary of homeland security under the DHS succession statute. The act also provides that the Comptroller General is to report to specified congressional committees, the President, and the Office of Personnel Management if the Comptroller General determines that an acting officer is serving longer than permitted by the act. 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. 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. The Appointments Clause of the Constitution mandates that high-ranking federal officials cannot serve without the advice and consent of the Senate. 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. Congress often isn’t notified when positions are filled. Jul 12, 2006, Vacancy Act Violation Letter-Food and Drug Administration, March 17, 2006, B-305939: C, title I, § 151(b) , Oct. 21, 1998 , 112 Stat. 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. Thus, there has not been a Senate-confirmed ICE Director for more than three years. Specifically, we are reporting that the service of Helen Albert as Acting Inspector General at HUD after Novemb... 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 U.S. Social Security Administration (SSA) with respect to the Commissioner position. 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 July 31, 2020, Matthew Albence announced that he was retiring from federal service. Presidents of both parties have increasingly exploited loopholes or violated the current vacancies law. 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. 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. Thanks To The Trump Administration, It’s Unclear, New Rule Limiting U.S. 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. 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. 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. Note: Each position has a unique Vacancy Identification Number which may be used to match vacancies with acting officials and nominees. 2681-611-16, codified at 5 U.S.C.§§3345-3349d.) The FVRA should only be available to the President once agency-specific statute has been exhausted. Get Email Updates. 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. Jul 20, 2005, Vacancy Act Violation Letter-Department of Education, Office of the Assistant Secretary for Elementary and Secondary Education, August 19, 2004, B-302743: 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. However I can't find any reference to 150 days of anything in the Act, and it seems 210 days is the maximum: " Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office for no longer than 210 days beginning on the date the vacancy occurs..." (). (b) Nothing in this order shall be construed to delegate the President’s authority under the Federal Vacancies Reform Act of 1998, 5 U.S.C. However, the Federal Vacancies Reform Act is also very clear on a key point regarding any new assignment of an already confirmed appointee: this is a temporary assignment of 210 days (it can be extended for additional, limited durations under certain circumstances). 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. Please do not complete the form by hand. Excessive use of acting or non-confirmed leadership unconstitutionally circumvents the Senate’s Advice and Consent mandate, leaving these officials less accountable to both Congress and the American people. Until passage of the Presidential Appointment Efficiency and Streamlining Act of 2011 (herein "the Streamlining Act"), the... Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting violations of the Federal Vacancies Reform Act of 1998 ("the Vacancies Reform Act" or "the Act") at the Department of Health and Human Services (HHS) with respect to the General Counsel position. 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. The Federal Vacancies Reform Act of 1998 (Vacancies Reform Act) provides for temporarily filling vacant executive agency positions that require presidential appointment with Senate confirmation. An engaged and informed public is at the heart of American democracy. Donate to help us to scale up our efforts to educate, advocate, organize, and litigate on behalf of the values we all hold dear. 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. Whitaker can serve as acting AG for 210 days, though the clock resets once Trump nominates someone to serve in the position permanently. On December 9, 2019, Judge Maxine Chesney of the Northern District of California issued a nationwide preliminary injunction barring USCIS from implementing changes that would limit access to citizenship for lawful permanent residents (green card holders). 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. 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. “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.”. ICE must be held accountable for violating the law and blocking immigrant survivors of violence from gaining safety and justice,”. 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 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. 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. 1, §151, 112 Stat. (Added Pub. This search function is only for vacancy information that federal departments and agencies have actually submitted to GAO. The Vacancies Reform Act established new requirements for the temporary filling of vacant executive agency positions that require Presidential appointment and Senate confirmation. “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,”, Order Granting Plaintiffs’ Motion for Nationwide Preliminary Injunction, Minute Order Granting Nationwide Injunction, Plaintiffs’ Reply in Further Support of Motion for Preliminary Injunction, Defendants’ Opposition to Motion for Preliminary Injunction, Preliminary Injunction Motion: City of Seattle v. DHS, City of Seattle’s Office of Immigrant and Refugee Affairs, Central American Resource Center of California, Amended Complaint: City of Seattle v. DHS, Ken Cuccinelli said goodbye to USCIS, taking on a bigger Homeland Security role. 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. Mar 18, 2002, Vacancy Act Violation Letter-Institute of Museum and Library Services, May 18, 2001, B-287720: Below is a listing of violation letters GAO has issued after determining that a violation of the act has occurred. The Federal Vacancies Reform Act of 1998 seeks to prevent vacancies that stretch beyond 210 days. President once agency-specific statute has been in the news as it also governs who succeeds Kevin as. Badges or name tags and driving unmarked vehicles particular position is specifically provided for in statute seq., to individuals... The Trump administration, it ’ s capacity to fulfill its Constitutional,... 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