Supreme Court Ruling on Vacancies Is One More Snag for Trump Appointments

By Mark Walsh — April 23, 2017 3 min read
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A recent U.S. Supreme Court decision is adding a wrinkle to the Trump administration’s efforts to fill sub-Cabinet posts, including some in the U.S. Department of Education.

Secretary of Education Betsy DeVos earlier this month announced a slate of appointees for key positions in her department, giving several key aides more permanent political positions than the initial “beachhead” posts filled early during the administration of President Donald Trump.

But when it comes to the Education Department’s 13 posts under DeVos that require presidential appointment and Senate confirmation positions, Trump has made only one nomination. That’s Carlos G. Muñiz to be the department’s general counsel.

And DeVos has designated only three appointees to serve as “acting” holders of positions that require presidential appointment and Senate confirmation. (These are known as PAS posts, at least to some inside-the-Beltway wonks.)

Those are: James Manning, as acting under secretary; Jason Botel, as acting assistant secretary for elementary and secondary education; and Candice E. Jackson, as acting assistant secretary for civil rights. (DeVos also appointed all three to positions just below the undersecretary or assistant secretary jobs that don’t require presidential appointment or Senate confirmation.)

The president’s slow pace of filling key political positions as he approaches the 100-day mark of his tenure is by no means limited to the Education Department. The Partnership for Public Service, a non-profit organization in Washington, says that as of April 23, Trump had yet to put forth a nominee for 473 of 554 PAS positions.

One factor the Trump administration must contend with is the recent U.S. Supreme Court decision that interprets a federal statute about filling vacancies that need official appointment and confirmation.

The upshot of the rather complicated March 21 decision in National Labor Relations Board v. SW General Inc. is that a provision of the law called the Federal Vacancies Reform Act of 1998 bars a person who has been nominated to fill a vacant PAS office from performing the duties of that office in an acting capacity.

Both Republican and Democratic administrations were skirting earlier versions of the law when it came to filling positions requiring confirmation, and the provision was aimed at keeping the president from going around the Senate confirmation process by putting certain officials into those positions on an acting basis.

(The U.S. solicitor general’s office had identified seven senior officials of the Education Department, under the administrations of Presidents Bill Clinton, George W. Bush, and Barack Obama, whose acting service would have been unlawful under the Supreme Court’s recent interpretation of the FVRA.)

The Supreme Court decision wouldn’t bar the president from nominating, say, Candice E. Jackson as the full-fledged assistant secretary for civil rights in the Education Department.

But in that circumstance, the ruling likely means that Jackson would have to give up the position of acting civil rights chief of the department. She could not serve as the acting holder of a position that requires Senate confirmation and be nominated for that office as well.

The federal vacancies-reform law also prescribes that “any function or duty of a vacant office” performed by an official not properly serving under the statute “shall have no force or effect.”

The Supreme Court left it for lower courts in the NLRB v. SW General case to decide whether certain actions of the labor board were invalid because the agency’s acting general counsel was not properly serving under the FVRA.

The Supreme Court decision has already influenced one relatively major personnel decision of the Trump administration. When Trump took office, Noel J. Francisco was named as acting U.S. solicitor general, the federal government’s chief lawyer before the high court. After several weeks of considering other candidates for the post full-time, the president decided to nominate Francisco for the job. But under the high court’s decision, that meant Francisco had to move out of the position of acting solicitor general while the Senate considers his nomination.

So, again, the president has pretty wide latitude to choose the people he wants for the many vacant PAS positions, when he gets around to it. And if he wants to nominate Manning, Botel, or Jackson for the Education Department jobs they are currently filling in an acting status, he could do so. But they would then have to give up their acting positions.

A version of this news article first appeared in The School Law Blog.