                                         The Vacancies Act
The V acancies A ct is not the exclusive authority for tem porarily assigning the duties o f a Senate-
   co n firm ed office. S tatutes vesting an ag en cy ’s pow ers in the agency head and allow ing delegation
   to su b o rd in ate officials also may be u sed to assign, on an interim basis, the duties o f certain
   vacan t S en ate-co n firm ed offices.

                                                                                              March 18, 1998

                                          St a t e m e n t B efo r e t h e
                               C o m m it t e e o n G o v e r n m e n t a l A f f a ir s
                                           U n it e d St a t e s S e n a t e


Mr. Chairman and Members of the Committee:
   Thank you for this opportunity to present the Department’s views about the
Vacancies Act, 5 U.S.C. §§3345-3349 (1994 & Supp. ID 1997).*
   The principal question I want to address is whether the Vacancies Act is the
exclusive statutory authority for temporarily assigning the duties and powers of
a Senate-confirmed office. For decades, the Department of Justice has taken the
position that statutes vesting an agency’s powers in the agency head and allowing
delegation to subordinate officials may be used to assign, on an interim basis,
the powers of certain vacant Senate-confirmed offices. We recognize that some
members o f Congress, as well as the Congressional Research Service and the
Comptroller General, have taken a different view of the statutes. But, as we will
explain, we adhere to our long-standing interpretation.
   The Vacancies Act enables officials to perform the duties of some Senate-con­
firmed positions, when the occupants of the positions have died or resigned or
are sick or otherwise absent. Some provisions of the Act allow first assistants
to serve. When the office of an agency head becomes vacant, for example, a
first assistant may act under 5 U.S.C. § 3345. Under § 3346, first assistants some­
times may also act in vacant Senate-confirmed positions below the agency head,
but only if the position is an office in a “ bureau” and only if that “ bureau”
is in an executive or military department— that is, one of the fourteen departments
listed at 5 U.S.C. § 101 (1994) or the Department of the Army, the Navy, or
the Air Force (id. § 102). Section 3347 offers a procedure that may be used instead
of service by a first assistant under §§ 3345 and 3346. Under § 3347, the President
may detail a Senate-confirmed official from an executive or military department.
Under any of these provisions, if the office becomes vacant because of death
or resignation, the service by the acting official may not continue beyond 120

   ♦ E dito r’s Note. The Vacancies Act was supplanted by the Federal Vacancies Reform Act o f 1998 See Pub.
L No. 105-277, div C, tit. 1, §151, 112 Stat 2681-611 to -6 1 6 (1998) (codified at 5 U .S .C §§3345-3349d
(Supp IV 1998)). Among other changes to pnor law , the Federal Vacancies Reform Act of 1998 expressly eliminates
the ability o f an agency head to use his or her vesung-and-delegation authonty to temporarily authorize an acting
official 5 U.S.C § 3347(b).


                                                         44
                                            The Vacancies Act


days, unless the President makes a nomination for the vacant office. 5 U.S.C.
§ 3348.
  In 1868, when Congress first passed the Vacancies Act in essentially its present
form, it repealed the then-existing statutes on filling vacancies. Act of July 23,
1868, ch. 227, 15 Stat. 168, 169. Since 1868, however, Congress has enacted
other statutes that, in our view, apply to vacancies at particular departments or
agencies. Some of these statutes expressly refer to vacancies. Others— the category
at issue here— vest the powers and duties of an agency in its head and allow
delegation to subordinate officials.
   The statutes for the Department of Justice illustrate this category. Under 28
U.S.C. § 509 (1994), “ [a]ll functions of other officers of the Department of Justice
and all functions of agencies and employees of the Department of Justice are
vested in the Attorney General,” with certain exceptions not relevant here. The
Attorney General, under 28 U.S.C. §510 (1994), “ may from time to time make
such provisions as [she] considers appropriate authorizing the performance by any
other officer, employee, or agency of the Department of Justice of any function
of the Attorney General.” These provisions, which I will refer to as “ vesting-
and-delegation” statutes, enable the Attorney General to assign the duties and
powers of a vacant office on an interim basis, and such assignments are not subject
to the limits of the Vacancies Act.
   At least since the Administration of President Herbert Hoover, Attorneys Gen­
eral appear to have acted on the conclusion that the vesting-and-delegation
authority, derived from the 1870 law creating the Department, supplements the
authority of the Vacancies Act of 1868 and permits the Attorney General to
reassign the duties of such Senate-confirmed positions to other officials of the
Department, outside the limits of the Vacancies Act.1 Because of difficulties in
researching old records, we have not been able to determine with certainty when
the practice began. But we know that, at the very least, it goes back more than
half of the Department’s existence and about a third of the history of the Republic.
   The statutory structure of the Department reinforces our position. In the vesting-
and-delegation statutes, Congress gave the Attorney General wide discretion to
assign duties and powers within the Department. Department officials below the
Attorney General, for the most-part,-have few duties that are specifically imposed
on them by statute. Instead, they carry out duties assigned by the Attorney General
under 28 U.S.C. §§509 and 510. Sections 509 and 510 of title 28 derive from
section 14 of the Department of Justice Act of 1870, see Act of June 22, 1870,
ch. 150, 16 Stat. 162, 164, which became section 360 of the Revised Statutes
and which was later codified at 5 U.S.C. §311 (1926). The legislative history
of the Department of Justice Act makes exactly the point that the statute did not

  1 See, e.g , O rder No. 2123 (Aug. 1, 1930) (designation o f an Acting Assistant Attorney General for Criminal
Division who served longer than the Vacancies Act allowed); Order No 2047 (June 29, 1929) (designation of an
Acting Assistant Attorney General for the Prohibition and Tax Division who also served longer than the Vacancies
Act’s limit).


                                                     45
                             Opinions o f the Office o f Legal Counsel in Volume 22


divide the Department into bureaus, but let the Attorney General allocate the
Department’s responsibilities as appropriate. See Cong. Globe, 41st Cong., 2nd
Sess. 3066 (1870) (Statement of Rep. Lawrence). Because the Attorney General’s
powers in this area are so broad and flexible, and because 28 U.S.C. § 510 specifi­
cally and clearly addresses the assignment of duties at the Department, we believe
that the Attorney General has ample authority, outside the Vacancies Act, to pro­
vide for the temporary discharge of the duties of Department officers when their
positions become vacant. See Memorandum for the Attorney General, from Theo­
dore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Designa­
tion o f an Acting D eputy Attorney General at 4—5 n.3 (Jan. 27, 1984).
  The Attorney General’s exercise of this authority in the designation of Bill Lann
Lee as Acting Assistant Attorney General in charge of the Civil Rights Division
shows how the vesting-and-delegation statutes supplement the Vacancies Act.
Today, there is not a single duty that, by statute, can be performed only by the
Assistant Attorney General in charge of the Civil Rights Division, and only one
statute (concerning authorizations under the witness protection program in criminal
civil rights cases, 18 U.S.C. § 3521(d)(3) (1994)) even mentions that Assistant
Attorney General specifically. Even apart from the general vesting of power in
the Attorney General under 28 U.S.C. § 509, Congress did not assign to the Assist­
ant Attorney General in charge of the Civil Rights Division the authorities now
exercised by that officer. Instead, Congress placed those authorities in the hands
of the Attorney General herself and left it to her to decide who in the Department
should carry out those duties. The Assistant Attorney General in charge of the
Civil Rights Division accordingly exercises only the power that the Attorney Gen­
eral chooses to give him. See 28 C.F.R. §0.50 (1997).2 It would be anomalous
indeed if the occurrence o f a vacancy lessened her authority to assign duties in
the way that best promotes the efficiency of the Department.3
   W e acknowledge that there are disagreements with our long-held legal view.
Three major arguments have been advanced, to challenge our position. The first
is that a provision of the Vacancies Act, 5 U.S.C. § 3349, makes that statute the
exclusive means o f designating an acting official in a vacant Senate-confirmed
position and that Congress affirmed this conclusion when it amended the Vacan­
cies Act in 1988. See Pub. L. No. 100-398, §7, 102 Stat. 985, 988 (1988). The
second is that our view of the law would permit the executive branch to evade
the Senate’s role o f advice and consent. The third is that our interpretation, in
effect, would nullify the Vacancies Act. We dispute each of these arguments.

   2 W hen the office o f Assistant Attorney General is vacant, the Attorney General by regulation has assigned the
duties set out in 28 C.F.R. §0 .5 0 to the ranking Deputy Assistant Attorney General or such other official as she
designates. Id § 0 132(d).
   3 See U nited States v. Giordano, 416 U.S. 505, 513-14 (1974) (given 28 U.S.C. §510, the argument “ that merely
vesting a duty in the Attorney General . . . evinces no intention whatever to preclude delegation to other officers
in the Department o f Justice, including those on the Attorney G eneral’s own staff” is “ unexceptionable” as a general
proposition, although in the particular instance the statute conferring the specific duty restricted delegation).


                                                          46
                                                The Vacancies Act


   Section 3349, in its present form, states that “ [a] temporary appointment, des­
ignation, or assignment of one officer to perform the duties of another under
§§ 3345 or 3346 of this title may not be made otherwise than as provided by
those sections, except to fill a vacancy occurring during a recess of the Senate.” 4
When Congress amended the Vacancies Act in 1988, the Senate Committee
asserted its belief that this “ present language, however old, makes clear that the
Vacancies Act is the exclusive authority for the temporary appointment, designa­
tion, or assignment of one officer to perform the duties of another whose appoint­
ment requires Senate confirmation.” S. Rep. No. 100-317, at 14 (1988).
   The Committee Report, by its terms, relies on the “ may not be made otherwise”
language of § 3349 for the conclusion that the Vacancies Act is the exclusive
means for filling vacancies in Senate-confirmed offices. But even the Committee
Report concedes that the Vacancies Act is not exclusive when there is “ specific
statutory language providing some other means for filling vacancies.” S. Rep.
No. 100-317, at 14. If the “ may not be made otherwise” language were “ clear”
and excluded all other statutory means for filling vacancies, this exception recog­
nized by the Senate Report would not exist. The disagreement, therefore, is not
truly whether the Vacancies Act is exclusive, but whether vesting-and-delegation
statutes are among those that supplement or displace the Vacancies Act.
   The Department has long believed that vesting-and-delegation statutes, as well
as statutes that name particular positions, may be used to assign the duties of
vacant offices despite § 3349. Section 3349 derives from the Vacancies Act of
 1868. Vesting-and-delegation statutes specifically applicable to particular depart­
ments were enacted after the Vacancies Act and supplement it, and §3349 could
not preclude later Congresses from granting this expanded authority.5
   In our view, the 1988 Senate Report did not—indeed, could not—alter the law
in this respect. In 1988, Congress neither amended nor even reenacted 5 U.S.C.
§ 3349. As Assistant Attorney General Barr wrote in 1989, the Senate Report is
“ subsequent legislative history,” by which a congressional committee cannot
“ alter the proper construction of a statute.” Application o f Vacancy A ct Limita­
tions to Presidential Designation o f an Acting Special Counsel, 13 Op. O.L.C.
 144, 146 (1989).6
   4The equivalent provision from the 1868 statute stated that “ no appointment, designation, or assignment otherwise
than as is herein provided, in the cases mentioned in the first, second, and third sections of this act, shall be made
except to fill a vacancy happening during the recess of the Senate “ 15 Stat. at 168 Congress enacted the present
language in 1966, but the change was not intended to be substantive See S Rep No 89-1380. at 18 (1966)
   5 Under our view, the “ may not be made otherwise than as provided” language of §3349 still has meaning
The language supplies a rule o f construction for the Vacancies Act It excludes arguments that substantial compliance
can satisfy the statute, but does not bar the use o f other statutory authorities
   Mn Pierce v Underwood, 487 U S 552 (1988), a committee report interpreted a provision in the Equal Access
to Justice Act that Congress was in the process o f reenacting The Supreme Court dismissed the interpretation.
      If this language [from the committee report) is to be controlling upon us. it must be either (I) an authori­
      tative interpretation of what the 1980 statute meant, o r (2) an authoritative expression of what the 1985
      Congress intended It cannot, of course, be the former, since it is the function of the courts and not the
      Legislature, much less a Committee o f one House of the Legislature, to say what an enacted statute means
                                                                                                             Continued


                                                         47
                           Opinions o f the Office o f Legal Counsel in Volume 22


  N or does the statement in the Senate Report become any more authoritative
because Congress amended other sections of the Vacancies Act in 1988. On the
contrary, Congress’s amendment o f other sections highlights its decision not to
amend 5 U.S.C. § 3349. If Congress is to legislate, both houses must enact lan­
guage that is presented to the President. INS v. Chadha, 462 U.S. 919 (1983).
Here, in the face of a venerable administrative construction that could have been
reversed through the enactment o f just a few words, Congress did not touch the
relevant portion of the Vacancies Act.
   Our interpretation does not depreciate the Senate’s role of advice and consent.
Although, under our view of a vesting-and-delegation statute, there is no precise
limit on the time during which an official may carry out the duties of a vacant
Senate-confirmed office, our view does not mean that such an office may remain
unfilled indefinitely. The President has a duty to make a nomination. The duty
comes from law, indeed from the nation’s highest law, the Constitution, which
declares that the President shall nominate, and by and with the advice and consent
of the Senate appoint, the principal officers of the United States. U.S. Const, art.
II, §2, cl. 2. Both the executive and legislative branches owe an obligation to
perform their constitutional roles.
  Finally, our position that vesting-and-delegation statutes permit the assignment,
on an “ acting” basis, o f a vacant position’s duties and powers does not nullify
the Vacancies Act. The Vacancies Act continues to provide the legal authority
invoked by the executive branch in a variety of circumstances. It confers the
authority to fill the highest position at most agencies. It may offer the most effi­
cient means for temporarily filling a vacant Senate-confirmed position at one
department with an official from another, and it is generally the only legal
authority by which the President himself can put an acting, rather than permanent,
official in place within an executive department. Vesting-and-delegation statutes
give authority to agency heads; the Vacancies Act gives authority to the President.
Furthermore, the Vacancies Act creates an “ automatic” procedure by which first
assistants may act in vacant positions, without the need for standing regulations
or individual orders issued under vesting-and-delegation statutes. Of course, when




     Nor can it reasonably be thought to be the latter— because it is not an explanation of any language that
     the 1985 Committee drafted, because on its face it accepts the 1980 meaning of the terms as subsisting,
     and because there is no indication whatever in the text or even the legislative history of the 1985 reenact­
     m ent that Congress thought it was doing anything insofar as the present issue is concerned except reenacting
     and making permanent the 1980 legislation
Id at 5 66-67 (Scalia, J.)- For similar reasons, the 1988 Senate Report cannot be an authoritative expression of
an earlier C ongress’s intent regarding 5 U.S C. § 3349. Moreover, in contrast to the situation in Pierce, Congress
did not even reenact 5 U S C. §3349 in 1988.


                                                        48
                                The Vacancies Act


these advantages lead to a use of the Vacancies Act, the authority conferred by
the Vacancies Act carries with it the time limits of 5 U.S.C. § 3348.

                                                      JOSEPH N. ONEK
                                    Principal Deputy Associate Attorney General

                                                     DANIEL KOFFSKY
                                                        Special Counsel
                                                    Office o f Legal Counsel




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