Vacancies Act: Executive Branch Noncompliance

T-OGC-98-39: Mar 18, 1998

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GAO discussed its views on the application of the Vacancies Act to positions that require Senate confirmation.

GAO noted that: (1) in a long line of cases beginning in 1973, the Comptroller General has maintained that the Vacancies Act is the exclusive authority for the temporary filling of vacant positions that require presidential appointment and Senate confirmation; (2) application of the Vacancies Act can be superseded only if there is specific statutory language providing another means for filling the particular vacancy in question; (3) the Department of Justice (DOJ) and other executive departments have taken exception to GAO's opinion; (4) they maintain that the Vacancies Act can be overcome by provisions in their enabling statutes that vest the functions of the department in the agency head and give general authority to this official to assign functions and delegate authority within the department; (5) the position of DOJ and other departments is not supported by the language of the Vacancies Act or the enabling statutes which are cited; (6) moreover, the legislative history of the Vacancies Act, including the 1988 amendments thereto, as well as the Department of Justice Act of 1870 and various reorganization plans do not support their position; (7) by passing legislation providing for an alternative means for filling specific vacancies in some cases, Congress has shown that it knows how to provide for independent statutory authority separate and apart from the Vacancies Act; (8) if the position of DOJ and other departments is accepted, these specific provisions would be redundant and need not have been enacted; and (9) although GAO believes that the Vacancies Act is clear, amendment of the Act to clarify congressional intent could help insure that the Act is followed and that the President acts in a judicious manner to make appointments which are subject to Senate scrutiny.

Matters for Congressional Consideration

  1. Status: Closed - Implemented

    Comments: Enacted as part of 5 U.S.C. 3347 which prohibits the head of an agency from making an appointment to fill a covered vacancy, unless there is specific language so authorizing.

    Matter: Congress should consider amending the Vacancies Act to explicitly provide that the Vacancies Act can be superseded only by another statute that provides an alternative means for filling a specific, identified vacancy. This would remove any doubt that the basic authorizing statutes of DOJ and others do not preclude application of the Vacancies Act.

  2. Status: Closed - Implemented

    Comments: Congress did amend the Vacancies Act but did not adopt GAO's recommendation regarding nonpayment of salaries.

    Matter: Congress should consider amending the Vacancies Act to prohibit salary payments to those who occupy positions in violation of the Vacancies Act, regardless of whether that individual is also simultaneously lawfully occupying another position. This would provide an incentive for the President and those filling the vacancies to comply with the act.

  3. Status: Closed - Implemented

    Comments: Enacted as part of 5 U.S.C. 3349.

    Matter: Congress should consider amending the Vacancies Act to include a reporting mechanism, such as requiring agencies to advise the Senate Committee on Governmental Affairs or the Comptroller General about vacancies, their duration, and nominations. This would provide oversight to help assure that vacancies in the government's most responsible positions are timely filled.

 

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