Executive Power

The Federal Vacancies Reform Act and the VA: A Study in Uncertainty and Incompetence

By Steve Vladeck
Wednesday, May 23, 2018, 11:25 AM

One of the obscure federal statutes that has come to prominence in the Trump administration is the Federal Vacancies Reform Act of 1998 (FVRA), a statute designed to increase the president’s flexibility with respect to filling vacancies within the executive branch on a temporary basis. Most discussion of the FVRA has centered on the Justice Department, and whether President Trump could use the statute to replace Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, or both, with someone from outside of the Justice Department. But the real action with the FVRA has largely involved the Department of Veterans Affairs—with respect to which the White House has now completely bungled matters, twice.

Let’s start at the beginning: When a federal office becomes vacant, the default is usually that the “first assistant” to that office is entitled to exercise the functions of the office (but does not formally ascend to the office) on a temporary, or “acting,” basis. But both because numerous positions don’t have obvious “first assistants” and because sometimes there’s no one holding that position, either, Congress in 1998 sought to provide a bit more flexibility to the president when filling many—if not most—vacancies in federal offices.

Thus, as the FVRA provides, when an executive branch officer whose position requires Senate confirmation “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the default is still the “first assistant,” but the president can override that default—and choose any other executive branch officer holding a Senate-confirmed position, or some senior, non-Senate-confirmed officers from the relevant agency, to exercise the functions of the office for no more than 210 days. The two big questions that the FVRA raises but does not answer are whether (1) it overrides all agency-specific succession statutes, such that the FVRA process is always available; and (2) even if it does, whether it applies when the vacancy is created by the president—i.e., when the prior permanent officeholder is fired, rather than dies or resigns.

The former question is hypertechnical. (With regard to the Justice Department, at least, the Office of Legal Counsel has concluded that it can be used in lieu of the more specific DOJ succession statute.) The latter question is much more important—and much less clear. Although the text of the statute could be read to encompass all vacancies (and at least one senator said on the floor that it would apply to firings), there are strong prudential and contextual arguments militating in the other direction—including that the purpose of the FVRA is to give the president flexibility to deal with unexpected vacancies, not to create vacancies himself and then sidestep existing succession schemes. Indeed, if the answer to both questions is “yes,” then the president would have the power not only to create vacancies in every executive branch office, but to fill them on a temporary basis with individuals who were never confirmed by the Senate either to that specific position, or, in some cases, at all. It’s easy to see, then, why the FVRA has loomed large in the repeated rumors over succession at the Department of Justice.

But for all of the focus on the Justice Department, the real flashpoint for the FVRA lately has been the Veterans Affairs Department (with an honorable mention to the Consumer Financial Protection Bureau). In late March, President Trump fired the VA Secretary, David Shulkin, and named a Pentagon undersecretary, Robert Wilkie, to serve as acting secretary under the FVRA. (The VA has its own succession statute, but that statute expressly incorporates other authorities.) Thus, Wilkie raised the big FVRA question: Does it apply when the vacancy is created by the president firing the incumbent? (Veterans’ groups brought a lawsuit arguing that the answer was no.)

Shortly after Shulkin was fired, however, the White House began arguing—loudly—that Shulkin had not been fired, but that instead, he had resigned. The only reason why this could have mattered is the FVRA: If the statute does not apply to vacancies created by the president, then Wilkie could not have been named to serve as acting VA secretary—and any actions he undertook in his capacity as acting VA secretary were subject to legal challenge. Thus, the White House, at least, seemed wary of the second FVRA question. (President Trump also ran into a different statutory problem when he nominated Rear Adm. Ronny Jackson, the White House doctor, to hold the position on a permanent basis, but that issue was mooted by Jackson’s withdrawal.)

This brings us to the latest VA-based FVRA kerfuffle: Last Friday, President Trump surprised everyone (including the putative acting secretary) by announcing at a public event that he was nominating Wilkie to hold the position of VA secretary on a permanent basis. Small problem: The FVRA expressly prohibits such a move. Although the FVRA allows lots of folks to hold an office on an acting basis, one of the few exceptions is an individual who has not been the “first assistant” to the office for at least 90 days who is then nominated by the president to hold the office permanently. Put another way, Wilkie’s formal nomination, by dint of the FVRA, disqualifies him from continuing to serve as acting secretary. This is not an open question about the FVRA; it’s compelled by the plain text.

Wholly apart from what this whole mess says about how seriously the Trump administration takes the VA (which is to say, not), it also suggests two important, related points about the FVRA: First, the White House is at least outwardly wary of the open question concerning its application in cases in which the vacancy is created by firing. It might therefore be a bit gun-shy about relying on the FVRA in a higher-profile case going forward. Second, the White House (or, at least, the president) doesn’t seem to fully understand the FVRA—as evidenced by the Wilkie mess. Neither of these conclusions is earth-shattering, of course. But both could be important markers for the vacancy fights to come.