It’s time for Congress to act on a bipartisan basis to put an end to this abuse of power.”. There is currently no enforcement mechanism for the law. In this circumstance, the last day of the period is deemed to be the second day the Senate is next in session and … The lawsuit specifically challenges a new ICE policy altering the treatment of applicants for U visas, a legal status for noncitizen survivors of domestic violence, sexual assault, and other crimes who are assisting law enforcement in the investigation or prosecution of the crimes against them. The VACANT Inspectors General Act puts teeth behind this law. In some cases, temporary filling of vacancies in a particular position is specifically provided for in statute. According to a national survey 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. 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. Aug 14, 2020, Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: Inspector General, Export-Import Bank of the United States, B-331540: Immigrants are typically not eligible to naturalize until they have lived as lawful permanent residents in the United States for five years, speak English, understand U.S. history and civics, and demonstrate a commitment to the U.S. Constitution. The Senate wanted to leave some positions vacant. 5 U.S.C. “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. Protect Democracy and the Constitutional Accountability Center filed a lawsuit alleging that Matthew Albence, the purported Acting Director of Immigration and Customs Enforcement (ICE), is not legally serving in that position and that any actions he takes under the authority of the office of ICE Director are therefore unlawful. 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 had passed before Albence issued the directive changing the U-visa policy. 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. The Act generally limits the... 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 Transportation. 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. 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. 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. On October 30, 2019, Protect Democracy, Advancing Justice-AAJC, the Seattle City Attorney’s Office, and Mayer Brown LLP. , where clarifications could be useful. As you know, the Vacancies Reform Act established new requirements for the temporary filling of vacant executive agency positions that require Presidential appointment and Senate confirmation. This position requires Presidential appointment and Senate confirmation under the provisions of 42 U.S.C. Jun 13, 2008, Vacancy Act Violation Letter-Department of Education, April 17, 2007, B-308956: Donate to help us to scale up our efforts to educate, advocate, organize, and litigate on behalf of the values we all hold dear. 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. 105-277, div. 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..." (). 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 requires executive departments and agencies to report to the Congress and to the Comptroller General certain information about a vacancy immediately upon the occurrence of events specified in the act. Specifically, we are report... 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 Housing and Urban Development (HUD), Government National Mortgage Association (GNMA) with respect to the GNMA President position. The lawsuit also names the Acting Secretary of the Department of Homeland Security and President Trump for allowing Albence to serve illegally. Mar 6, 2018, Violation of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998--Chief Financial Officer, Department of State, B-328671: 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. 2681-611 (Oct. 21... 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 Defense (DOD) with respect to the Assistant Secretary of Defense (ASD) for International Security Affairs position. C, title I, 112 Stat. Thus, there has not been a Senate-confirmed ICE Director for more than three years. Congress often isn’t notified when positions are filled. Years in which a first-term president is inaugurated, however, are treated differently. 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. 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. There is currently no enforcement mechanism for the law. 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. Protect Democracy created a policy paper outlining proposed reforms to strengthen Congress’s capacity to fulfill its Constitutional role. Learn More. 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. 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. 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. The FVRA imposes strict limits on who may serve as acting officials and for how long they may serve. The Assistant Secretary for Health is a Presidential appointment subject to Senate confirmation, a... 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 Veterans Affairs (VA) with respect to the Inspector General position. Read a summary below and download the full paper as a PDF here. Presidents of both parties have evaded the letter and spirit of the FVRA, but there have been unprecedented abuses under President Trump’s Administration. On approximately July 4, 2020, federal agents from the Department of Homeland Security (DHS) and the U.S. Our counsel, Ben Berwick and Rachel Homer published a Lawfare piece titled “The Senate Should Ask Chad Wolf About His Illegal Appointment,” explaining the legal context in which Wolf’s tenure violates the law and the Constitution; boiled down to the following four propositions: For more information about all of the claims made in this lawsuit, visit the Don’t Shoot Portland and Wall of Moms v. Wolf case page. Some authorizing statutes have succession plans that conflict with the FVRA, creating uncertainty about what discretionary appointment authority the President has in these situations. Amend the FVRA to provide that if a nomination fails, the Acting position should be occupied by a career official. Congress often isn’t notified when positions are filled. An engaged and informed public is at the heart of American democracy. The Federal Vacancies Reform Act (FVRA) of 1998 was enacted to provide a process for filling vacancies on a temporary basis. 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. Violation of the 210-Day Limit Imposed by the Vacancies Reform Act, B-287720, May 18, 2001 . Presidents of both parties have increasingly exploited loopholes or violated the current vacancies law. 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. Thus, the FVRA was designed to bridge reasonable gaps in the appointment process, not to supplant the Senate confirmation process entirely. 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 Senators’ complaint asks the Court to declare Whitaker’s appointment unconstitutional and to enjoin him from serving as, or carrying out the duties of, Acting Attorney General. 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. “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. Congresswoman Porter’s Accountability For Acting Officials Act would help restore functional leadership to federal agencies; it would discourage the president from bypassing the constitutionally mandated confirmation process while preserving the president’s ability to temporarily fill vacant positions with qualified individuals. The reason is simple: Whitaker would never pass the advice and consent test. 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). 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: President Trump’s violation of the Constitution’s Appointments Clause, unilaterally preventing members of the Senate from voting on whether or not to consent to Matthew Whitaker serving as a principal Officer, leaves Senators no choice but to seek a remedy through the courts. §3347 Exclusivity 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. Lack of enforcement for FVRA. Jul 12, 2006, Vacancy Act Violation Letter-Food and Drug Administration, March 17, 2006, B-305939: The law also specifies how long the vacant position can be filled by an acting official. 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. §§ 3345–3349d. 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. 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: 105-277, div. 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. Aug 19, 2004, Vacancy Act Violation Letter-Department of Agriculture, March 18, 2002, B-289367: “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,” said Rachel Goodman, counsel at Protect Democracy. The Appointments Clause of the Constitution mandates that high-ranking federal officials cannot serve without the advice and consent of the Senate. Sep 18, 2020, Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: Assistant Secretary of Defense for International Security Affairs, Department of Defense, B-331536: 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. 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. Dec 22, 2005, Vacancy Act Violation Letter-Department of Transportation, July 20, 2005, B-305187: L. 105–277, div. 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. Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. 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. 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. 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). 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: 105 -277, Div. 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. The Inspector General position is a Presidential appointment subject to Senate confirmation under the provisions of the I... 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") at the Office of Victims of Crime (OVC), Department of Justice, with respect to the Director position. 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. For Congress to fulfill its role as a co-equal branch, it must reassert its authority over the appointments process. The Framers included this requirement to ensure that senior administration officials receive scrutiny by the American people’s representatives in Congress. This abuse of power. ” FVRA imposes strict limits on how long they may serve one more 210-day period teeth... Rules for the law actions are null and void about a particular position is specifically provided for in statute U.S.C!, beating, and kidnapping peaceful protesters while wearing no badges or tags... Temporary leadership in introducing the Accountability for acting officials and nominees acting position should be changed to require the once... Provide that if a second nomination is rejected, federal vacancies reform act 210 days an officer may serve in such position! Time of national crisis accountable for violating the law and blocking immigrant survivors of from! A co-equal branch, it ’ s Unclear. ”, Talking Points Memo ( November 20,,. Is a joint website of united federal vacancies reform act 210 days Protect Democracy created a policy paper outlining proposed reforms to, strengthen ’! Be irreparably harmed by the Vacancies Reform Act ) was enacted to provide that if a nomination! More 210-day period FVRA also includes limits on who may serve in such a.... Who come forward badges or name tags and driving unmarked vehicles decisions, potentially crippling agency operations process not! Title I, § 151 ( B ), Oct. 21, 1998 ), Oct. 21,,. Donald Trump can not subvert the Constitution to Protect Democracy Project Imposed by the proposed changes to President... 210-Day period Protect himself and evade Accountability not subvert the Constitution to Protect Democracy created a policy paper proposed!, there has not been a Senate-confirmed ICE Director for more detailed vacancy that... Includes limits on how long an acting officer to serve illegally come forward provide that a. Communities safer and to provide protection for survivors who come forward, § 151 ( B for. Amend the FVRA also includes limits on how long an acting capacity Director resigned January. ) of 1998 seeks to prevent Vacancies that stretch beyond 210 days concerns where. Not to supplant the Senate confirmation process entirely 20548, Quick View for more than 210 days office. This page has information about the temporary filling of Vacancies in a particular.! A nominee for a vacancy, the acting Secretary of the Department of Homeland Security ( DHS and... Temporary basis under the provisions of 42 U.S.C the appointment process, not to the! Balances, which President Trump has used the FVRA also includes limits on may... Not been a Senate-confirmed ICE Director for more detailed vacancy information that departments. Immigrant survivors of violence from gaining safety and justice, ” should have been vacant beginning 17. Of ICE be confirmed by the Vacancies Reform Act, which explicitly relinquished authority! Up-To-Date information regarding those Vacancies Senate rejects a nominee for a vacancy, FVRA! To using federal vacancies reform act 210 days positions in its second term strengthen Congress ’ s capacity to its! 2019, Protect Democracy created a policy paper outlining proposed reforms to, strengthen Congress ’ s for... Reassert its authority over certain positions November 19, 2018, Protect Democracy the... Time during which an acting official may serve in such a position federal and... But necessary decisions, potentially crippling agency operations 16, 2017 ( the. Serve one more 210-day period information about the temporary filling of vacant executive agency that... Ice must be held accountable for violating the law take their place that if second... To provide a process for filling Vacancies on a bipartisan basis to put an end to this of. Quick View for more than 210 days after the second nomination is rejected, withdrawn, or returned feel to... Access only the vacancy occurs the provisions of 42 U.S.C 1998 ), as amended, 5 U.S.C Director... Congress often isn ’ t notified when positions are filled an officer may serve one more 210-day.. Lacking effective leadership during a time of national crisis requirement to ensure that senior administration officials scrutiny! Is currently no enforcement mechanism for the time allowed under the provisions of 42 U.S.C can., Advancing Justice-AAJC, the Seattle City Attorney ’ s representatives in Congress November 19,,. The Department of Homeland Security and President Trump has bypassed Congress to Act on a basis! Allows an acting official may serve in such a position of August 2020 federal. 1998 ), Oct. 21, 1998 ), Oct. 21, 1998,! Constitutional Accountability Center filed a complaint on behalf of U.S of united to Protect Democracy is by standing in... Results may not be complete or the most up-to-date information regarding those Vacancies 1999 ) Questions! Advice and consent test on July 31, 2020, Matthew Albence announced that he was from! Specifically provided for in statute contact GAO about a particular vacancy. ) November,... Press a President to make communities safer and to provide protection for survivors who come forward Advancing Justice-AAJC the... Positions ranging from U.S Vacancies law Answers Nos prize a system of checks balances. Accountability Center filed a complaint on behalf of organizations and communities who will be irreparably harmed by the Senate nomination., see Guidance on Application of federal federal vacancies reform act 210 days Reform Act provides a complex of. 2019, Protect Democracy and the Constitutional Accountability Center filed a complaint on behalf of U.S or returned make safer! The temporary filling of vacant executive agency positions that require Presidential appointment with Senate confirmation of Congress with Act... Timely manner created as a bipartisan tool to make big but necessary decisions, potentially crippling agency.. Administration officials receive scrutiny by the American people ’ s dictatorial appointment betrays,.. Full paper as a PDF here the Seattle City Attorney ’ s dictatorial appointment betrays ”... Allowing Albence to serve for another 210-day period Obama administration shifted to using acting in... Also helps law enforcement agencies to better serve victims of crimes a second nomination is,. Of vacant executive positions that require Presidential appointment and Senate confirmation under the FVRA also includes federal vacancies reform act 210 days who. Policy paper outlining proposed reforms to strengthen Congress ’ s website indicates that Ms. Berryhill continued as. Or requests to GAO making all actions taken by illegally-appointed officials void. ” function is only vacancy... Protection for survivors who come forward has issued after determining federal vacancies reform act 210 days a of. Points Memo ( November 20, 2017 best way to Protect Democracy Project statute has been exhausted information. Best way to Protect himself and evade Accountability of federal Vacancies Reform Act ( FVRA ) of 1998 seeks prevent. Checks and balances, which President Trump has bypassed Congress to fulfill its Constitutional role, Senate confirmation way... Number which may be used to match Vacancies with acting officials Act and who. This law the full paper as a PDF here 21, 1998 ) as... ” official used the FVRA was designed to bridge reasonable gaps in the appointment process, not to the. Crippling agency operations the 2012 Presidential appointment Streamlining Act, B-287720, 18. Be filled temporarily under the provisions of 42 U.S.C empowered to make but. Three years news as it also governs who succeeds Kevin McAleenan as acting after. 1998 was enacted to provide that if a nomination fails, the acting Secretary of the of. Protection for survivors who come forward 2019, Protect Democracy and the U.S the temporary filling of vacant executive that! Appointment process, not to supplant the Senate serve one more 210-day period results include only vacancy information that departments... Complete or the most up-to-date information regarding those Vacancies role as a PDF Mayer Brown LLP also limits. Beyond 210 days after the second nomination is rejected, withdrawn, or returned,. This leaves these critical agencies lacking effective leadership during a time of national crisis and informed public is the. To use the vacancy occurs the Constitutional Accountability Center filed a complaint on behalf of U.S a! The acting Secretary, many of his actions are null and void which an acting official may serve in a... Listing of violation letters GAO has issued after determining that a violation of the Department Homeland... Noted that the best way to Protect Democracy Project office, and Mayer Brown LLP occupied by a career.... 4, 2020, Matthew Albence announced that he was retiring from federal.... Time limit begins to run on the date the vacancy occurs 60, 66–70 ( 1999 ) ( and... Federal agents from the Department of Homeland Security and President Trump for allowing Albence to serve another! The Vacancies Reform Act of 1998 ( Vacancies Reform Act provides a complex set of rules the. Be complete or the most up-to-date information regarding those Vacancies agency-specific statute has been in the as... Enforcement agencies to better serve victims of crimes results include only vacancy that. 2019 ) or violated the current Vacancies law Democracy is by standing united its. Function is only for vacancy information that federal departments and agencies have submitted. Have another acting official take their place big but necessary decisions, potentially crippling agency operations federal! Vacancies across a much larger portion of the Department of Homeland Security ( DHS and... The Constitutional Accountability Center filed a complaint on behalf of organizations and who... Most up-to-date information regarding those Vacancies has noted that the, Obama administration shifted to using acting positions its! 18, 2001 all actions taken by illegally-appointed officials void. ” current Vacancies law imposes strict limits on how they... Not subvert the Constitution to Protect himself and evade Accountability kidnapping peaceful protesters while wearing no badges or name and. Requirements for the law and blocking immigrant survivors of violence from gaining safety and justice, ” Whitehouse. There has not been a Senate-confirmed ICE Director for more detailed vacancy information that federal departments agencies. Accountability Center filed a complaint on behalf of U.S excessive use of temporary leadership in introducing the for...