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45 Admin. & Reg. L. News 16 (2019-2020)
Boundaries of the Federal Vacancies Reform Act

handle is hein.journals/admreln45 and id is 44 raw text is: Boundaries of the Federal Vacancies Reform Act Ben Miller-Gootnick* 1. Introduction The Federal Vacancies Reform Act of 1998 (FVRA) authorizes the president to temporarily fill Senate-confirmed positions when the prior officeholder dies, resigns, or is other- wise unable to perform the functions and duties of the office.1 Does the FVRA, apply when the office- holder was fired? The FVRA was once a rather obscure area of the law.2 Unprecedented personnel turmoil in the M LLER Trump Administration, however, has thrust it into the national spotlight. The president has to date fired three cabinet secretaries and replaced them with acting officers ostensibly under FVRA authority. Yet the interpretive question of whether the Act applies to removal has found conflicting answers the few times it has come up. On November 14, 2018, for instance, the Office of Legal Counsel (OLC) determined the FVRA would apply when the president fired the previous officeholder. Two weeks later, a federaljudge concluded in dicta that the Act would not apply in that situation. This contribution argues that the FVRA does not authorize the president to temporarily fill vacancies created by firing the prior officeholder. II. Interpreting the FVRA A. Text and Structure Section 3345(a) of the FVRA dictates the Act applies when an officer dies, resigns, or is otherwise unable BEN GO( to perform the functions and duties of the office. The question at the heart of this analysis is whether otherwise unable includes presidential removal. The ejusdem generis canon counsels reading otherwise unable as reach- ing only other inabilities of the same basic kind as death or resignation. That canon captures a straightforward intuition about the way we use language: When a catch-all follows a list of terms, that catch-all extends only to other terms of the OTNICK same kind as those listed. The canon does not end the inquiry, as Congress may draft redundantly to ensure the inclusion of certain terms. But it does offer a useful starting point, as the listed terms intuitively contextualize the language that follows. The essential characteristic that dies and resigns share is that both are uncontrollable inabilities to serve from the president's perspective. The president cannot choose whether his officers die or resign. However, he can choose to fire them, creating an inability to serve of a fundamentally different type from that created by the officer's decision or circumstance. In particular, vacancies created by the very official with the power to fill them activate concerns about the Senate's advice and consent role that remain largely dormant in the two cases listed in the Act, where the president does not create the vacancy. The ejusdem generis canon thus suggests a reading that extends otherwise unable only to vacancies of the same type as those listed. Here, that most naturally means other unexpected vacancies, not vacancies created by the official with the power to fill them. This reading can be critiqued on two fronts. First, one might argue the relevant common characteristic between dies and resigns is the resultant vacancy, regardless of how that vacancy comes to be. That argument turns on how broadly we define the two terms' essential common characteristic. The Act's historical context augurs for a narrow reading, as explained below. But even on semantic grounds, the terms dies and resigns most naturally share the core element of being outside the president's control. Had Congress intended to cover all cases of removal with the otherwise unable language, as the broader reading suggests, Congress would not have needed to list two narrower examples. It instead could have simply specified the Act applied to all vacan- cies and settled the matter. Indeed, Congress had used such broader language to refer to vacancies in nearly every other agency succession statute in place prior to the FVRA. The enumerated terms share various common characteristics, but their key interpretive commonality is the lack of presidential control over the creation of the vacancy. This interpretation also raises concerns about superfluity. Specifically, otherwise unable might seem to do little work if limited to cases similar to the listed terms. What type of vacancy, after all, is like ADMINISTRATIVE & REGULATORY LAW NEWS 16 VOL 45, NO 2 A longer version of this piece, Boundaries of the Federal Vacancies Reform Act, 56 HARv. J. ON LEGIs. 459 (2019), won the Gellhorn-Sargentich Law Student Essay Competition. 5 U.S.C. 5 3345(a) (2012). 2 144 CONG. REC. 22,518 (1998) (statement of Sen. Dick Durbin (D-Ill.)). 16 ADMINISTRATIVE & REGULATORY LAW NEWS VOL 45, NO 2