"Acting" appointments outrage lawmakers

To Sen. Fred D. Thompson, it's not even a close call: The Clinton administration is "ignoring" the law.

"I don't know of any other way to put it," huffs the Tennessee Republican. His indignation is directed at the administration's practice of filling lots of top executive branch jobs with officials who serve for lengthy periods on an "acting" basis, without Senate confirmation. The Governmental Affairs Committee chairman contends that the White House--in failing to submit nominations to the Senate more expeditiously--is disregarding Congress's role in the confirmation process, as spelled out in the Constitution.

"We have a government now that is more and more operating without the Constitution," Thompson said in an interview. "The executive branch is not fulfilling its responsibilities to give Congress the opportunity to exercise its advice and consent powers. We've got to do something about it."

"Acting" officials hold 20 per cent of the Cabinet-level department jobs that require Senate confirmation--64 out of 320 slots, according to a Congressional Research Service (CRS) survey taken at the end of February. For a majority of those 64 posts, the administration had not even sent a nomination up to Capitol Hill.

In the Commerce Department, for instance, James F. Holmes has manned the critical position of Census Bureau director on an acting basis since January. The administration has yet to nominate anyone to the post, even as partisan spats continue over how to get the most accurate population count in the 2000 census, which has huge political implications.

Similarly, as allegations of scandal swirled about the administration, an acting appointee, John C. Keeney, headed the Justice Department's Criminal Division for two and a half years before a nomination was finally sent to the Senate earlier this year. The nominee, James K. Robinson, has yet to be confirmed.

In addition, Walter E. Dellinger III assumed the important post of Solicitor General on an acting basis in 1996 and went on to represent the government before the Supreme Court for an entire term of the Court--more than 14 months. The liberal Dellinger was a controversial figure on Capitol Hill, and President Clinton never submitted his name for Senate consideration. Rather, he waited until Dellinger resigned before choosing a nominee--Seth P. Waxman, who was confirmed last November.

Thompson and other senior lawmakers in both parties argue that such lengthy tenures for acting officials fly in the face of the 1868 Vacancies Act. The law states that if an executive branch post that requires Senate confirmation is vacant because of an illness, resignation or death, the President may fill it on a temporary basis, but for no more than 120 days. If a nomination is submitted within the 120-day period but the Senate takes no action, then the person serving in an acting capacity may remain until the nominee is confirmed. If the nominee is rejected by the Senate or withdraws, then the acting official may remain in office for another 120 days from that date.

Despite these requirements, each department in the Clinton administration has had at least one temporary officer who served more than 120 days before the President submitted a nominee to the Senate. Of the 64 acting officials tallied up by the CRS in late February, 43 had served beyond the 120-day limit.

The White House contends that the law is impractical and outdated--out of step with an increasingly contentious confirmation process that involves intense Senate scrutiny of nominees and requires the administration to examine the backgrounds of all potential nominees meticulously. "The reality is that the vetting process has become a much longer and more involved process, in good measure because of the lengths to which the Senate has gone in delving into every possible element of an individual's life," said White House spokesman Barry J. Toiv. "If they are going to do it, we have to do it--and that takes a real long time."

Still, senior Republican and Democratic Senators are concerned that the courts are misinterpreting the law and that the Justice Department in particular is defying it. They've introduced measures to put an end to what they see as abuses. Thompson says the issue is "on the front burner." His committee was tentatively scheduled to take up the legislation on May 14.

"It is time for this institution to state in no uncertain terms," implored Sen. Robert C. Byrd, D-W.Va., at a Governmental Affairs Committee hearing on March 18, "that no agency--no agency, none, not even the Justice Department--will be permitted to circumvent the Vacancies Act or any other act designed to safeguard our constitutional duties."

The Justice Dodge?

The Justice Department is in the spotlight largely because of the debate over the appointment of Bill Lann Lee to be acting assistant attorney general of the Civil Rights Division.

Lee, an activist lawyer for the NAACP Legal Defense and Educational Fund, was initially nominated to the post on July 21, 1997, after Isabelle Pinzler had served 181 days as the acting chief of the office. His nomination failed to pass the Judiciary Committee and never made it to the Senate floor. Attorney General Janet Reno nevertheless designated Lee as the acting chief of the division last Dec. 15. Six weeks later, on Jan. 29, Clinton again formally nominated Lee to the post.

But how can Lee remain as the acting head of the civil rights post long after the 120-day limit has been exhausted? Justice Department officials contend that the Attorney General has independent authority to make such appointments under a 1950 law that reorganized the department. The statute provides that "all functions of agencies and employees of the Department of Justice are vested in the Attorney General," and that she has the power to delegate those functions to other Justice officials.

The argument that Justice has such authority may not be a stretch. "I think Justice can take that position quite credibly," said Michael J. Gerhardt, a law professor at Case Western Reserve University in Cleveland.

Though the Justice Department has used it for nearly five decades, the argument still infuriates a number of Senators. Thompson at his March 18 committee hearing pressed Daniel Koffsky, a special counsel in the Justice Department's office of legal counsel, to say whether there are any time constraints within which the President must make a nomination. "There is no precise limit," Koffsky responded. "There is a duty on the part of the President to submit a nomination, just as there is a duty on the part of the Senate to act on the nomination."

Asked about the two and a half years that an acting official led Justice's Criminal Division, Koffsky said it was permissible. Thompson, however, dismissed as "an absurd interpretation" the suggestion that Congress would "completely divest itself of any say with regard to these important positions for an entire term, or two and a half years, or three years."

Less than 10 days after the hearing, Thompson was further troubled when the U.S. Court of Appeals for the District of Columbia refused to invalidate the decisions of Jonathan L. Fiechter, a career government employee who served from 1992 until last fall as acting director of the Treasury Department's Office of Thrift Supervision, without ever being nominated. Thompson said the ruling showed the "necessity for legislation" to make it absolutely clear that no administration can duck its obligation to make timely nominations. His draft bill would cover all executive branch posts, limit recess appointments and retain the 120-day limit, among other steps.

Senate veterans share the view that the administration is taking a cavalier attitude toward its constitutional duties. They include Republican Strom Thurmond of South Carolina, who has introduced his own bill, and John Glenn of Ohio, the senior Democrat on the Governmental Affairs Committee. Such concern may give legislation a fair shot at passage, even in a truncated election-year session.

Glenn, while chairing that committee in 1988, secured the passage of amendments to the 1868 Vacancies Act, giving the President more flexibility by increasing the time an acting official may serve to the currently allowed 120 days--up from the 30 days that the law previously mandated. The Senate report accompanying the 1988 measure stressed that the Vacancies Act was "the exclusive authority" for filling vacancies in posts that require Senate confirmation. "We saw this problem building up, through the Reagan and Bush administrations, and we thought we had corrected it," Glenn said recently.

But Glenn said that, given the Justice Department's view that the changes did not diminish the Attorney General's independent authority, Congress must revisit the issue so that government officials "cannot interpret the law in any way except to preserve the advice and consent role of the Senate." He added: "Right now, it is being bypassed."

Byrd's Blast

In clashes between the executive and legislative branches, no lawmaker makes the case for Congress's prerogatives with more passion and eloquence than Byrd.

When he came to testify before the Governmental Affairs Committee in March, the 80-year-old lawmaker--one of only three Senators in history to have been elected to seven six-year terms--was clutching a copy of the Constitution. "Each time a vacancy is filled by an individual in violation of the act, yet another pebble is washed off the riverbank of the Senate's constitutional role," he said. "As more and more of these pebbles tumble downstream, the constitutional riverbank weakens until, finally, it will collapse." He minced no words in attacking the Justice Department's "unmitigated arrogance."

Byrd's legislation would deny pay to anybody performing the duties of a post that had been vacant in excess of the 120-day limitation. Like other proposals, Byrd's would also make clear that the Vacancies Act supersedes other laws, unless another law expressly says that it takes precedence. Such language would finally wipe out the claim of Justice and other departments that they have authority independent of the Vacancies Act.

A House proposal by Judiciary Committee chairman Henry J. Hyde, R-Ill., also gives the Vacancies Act precedence over other statutes, but would require the U.S. Court of Appeals for the District of Columbia to choose an acting officer for a job when no nominee has been submitted for it within 120 days.

Even as Congress scrambles to protect its constitutional role, White House officials such as Toiv note that lawmakers have exacerbated the problem by increasingly politicizing the confirmation process--a notion with which Glenn is sympathetic. "Congress shares some of the blame here," Glenn said, "because it has become so partisan that people are being held up in the process for something that they had nothing to do with."

Another factor slowing down the process is the exponential growth in the number of executive branch jobs that require confirmation. "The consensus in the public management community is that there are too many presidential appointments," said Herbert N. Jasper, a fellow at the National Academy of Public Administration, a Washington consulting group. "The number has grown as party control of the White House has changed. Each new administration thinks that to get control of the bureaucracy, it needs to have more of its own people. This, in our view, is illusory."

Paul C. Light, who helped draft the Vacancies Act amendments in 1988, when he was a Democratic congressional staffer, agreed with Jasper that the more basic matter of the executive branch's spiraling growth must be addressed. "Ultimately, I don't see a radical improvement in the time limits of presidential appointees until we deal with the number of the positions," Light said.

But Byrd argues that such concerns are secondary. He believes that the overriding issue of redeeming Congress's constitutional role must be dealt with now. "If the Constitution can be chipped away, a little here and a little there," he says, "it will not be long until it will be left in shreds."

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