Who Fills In When Federal Jobs Are Vacant?

0:00That's the kind of first way of filling the jobs is the attorney general picks someone and then the district court typically prior to this administration would extend that person until a confirmed person went in. Now, part of the problem with this first alternative with this administration is the attorney general, Pam Bondi in particular, picked some people that the district courts didn't want to then pick, right, to have service until a confirmed person was put in place. And so they chose different people who the president then fired.

0:35This is Stanford Legal, where we look at the cases, questions, conflicts and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way you'll have access to all our new episodes as soon as they are available. Well, when we talk about the stories that affect us all every day, administrative law and the postal service, two of my guests today's favorite topics, are right up there. Today, I'm joined by my colleague, Ann Joseph O 'Connell. She is the Adalbert Sweet Professor of Law here at Stanford Law School, and she's a senior fellow at the Stanford Institute for Economic and Policy Research.

1:15and she is the world's expert on something that turns out to be incredibly important given this administration and the way that it's trying to run the federal government. So welcome to the show, Anne. Thank you for having me. Thanks. So you wrote an article with the shortest best title ever for a law review article, and it was called Actings. And do you want to tell our listeners a little bit about what you meant by actings and why this turns out to be so incredibly important. So it turns out it's important for government, but it's important for business. We have interim CEOs. It's important for religion.

1:57They're interim pastors. And I'm working on a book thinking about cross-sector. But in terms of the government, we have thousands of political appointments, a great many of which are appointed by the president and confirmed by the Senate. And that process churns. It churns on the nomination side and it churns on the confirmation side, though now we have bulk confirmations for many positions. And when we're lacking Senate-confirmed leaders, we often have people temporarily running those jobs. And I call them, and many others call them actings. In fact, President Trump in his first term said he loved his actings because his actings gave him more flexibility.

2:43And he got a lot of attention in the first term, and I didn't think he could get even more attention in the second term, but he has, particularly when it comes to U.S. attorneys. Yeah, so I want to get to the U.S. attorneys in a minute. But before we get there, well, no, actually, let's start with the U.S. attorneys, which is there are 94 districts in the country, the United States District Court for the Northern District of California or for the Eastern District of North Carolina or like. And each of these offices is headed by a United States attorney. And then they might have anywhere from a couple of dozen to several hundred assistant U.S.

3:23attorneys. And the assistant U.S. attorneys are civil servants. They're hired through a merit hiring process. They can stay in those jobs for their entire career if they want. Or in many of the places people go in to get litigation experience and they're there for four or five years and then they go into the private sector or they go off to some other job. But the top job is somebody who is nominated by the president and subject to Senate confirmation, as opposed to, for example, the White House Council, where the president picks that person and there's no process beyond that. Or a lot of the slightly lower down presidential appointees where there's really no confirmation process.

4:04I mean, when I served as a deputy assistant attorney general in the Civil Rights Division, the president appointed me, the president could fire me, but there wasn't any other process. But for U.S. attorneys themselves, there's a process. Why? I think that U.S. attorneys are considered to be incredibly important positions, controlling, in particular, criminal prosecutions on behalf of the federal government. That makes them officer positions. And under the Constitution, they default to a presidential-appoint-Senate-confirmed structure. Now, there is a question. I think most people would claim that U.S.

4:42attorneys technically are inferior officers, and some lower courts have held that because they report to the attorney general who then reports to the president. And, of course, the Constitution allows for inferior officers for Congress to choose one of three alternatives, the president alone, a head of a department or a court of law. But Congress has not so chosen, I think, because of the importance and also because of the politics, right? These U.S. attorney offices are scattered throughout the country, and senators in particular want to have a say. There's a blue-slip process still in place for U.S.

5:17attorneys and U.S. marshals. And so they're considered some of the most kind of important in terms of policy, but also in terms of politics positions. Right. So the president nominates these people. They go through a Senate confirmation hearing, and they're confirmed. And one of the things we know has always been true is the president has the ability to fire these people if he doesn't like what they're doing. Yes. So there is a lawsuit right now where the president has fired a U.S. attorney picked by a court of law. So there is actually a provision. We'll get to that in a moment. But if somebody was nominated by the president, by the Senate and the president says, look, I think that you want to spend more of your time on white collar crime and less on street crime or more of your time on drugs and less of your time on political corruption or even I don't want you to prosecute this particular person.

6:08President can fire the U.S. attorney himself for any reason at all. That's right. Right. Now, President Trump has not filled all these positions. We're now in year two, midway through year two of the administration, and he hasn't filled all these positions yet by nominating somebody and having that person go through the confirmation process. Right. And so I would say that that is not unusual. So President Biden, at the end of his first year, had only filled a third of the U.S. attorney spots with Senate confirmed people. And part of the issue with filling these jobs is the blue slip process. So President Biden had a hard time filling U.S.

6:53attorney positions in red states where there were Republican senators. Likewise, President Trump is having a hard time because the blue slip process still remains for getting confirmed U.S. attorneys in. Even though the Republicans control the Senate, you need the blue slips. And so in blue states. If there's not a Senate confirmed U.S. attorney, who runs the office? So basically, there have been three alternatives in past administrations. The first is a specific statute just for U.S. attorney positions. So it doesn't apply to other positions. And that's Section 546 of the United States Code. I believe it's Title 28 of the U.S.

7:35Code. and it provides for the attorney general to pick what is known as an interim, not an acting, an interim U.S. attorney. And the attorney general can pick anyone. They don't have to have been in the department. They can pick anyone for 120 days. And that statute provides that at the end of 120 days, the district court can pick someone to fill the job. And that person is just called the U.S. attorney until a confirmed person is put in place. So in a way, Congress has allowed for one of those three alternatives in this kind of specific area. That's the kind of first way of filling the jobs is the attorney general picks someone and then the district court typically prior to this administration would extend that person until a confirmed person went in.

8:25Now, part of the problem with this first alternative with this administration is the attorney general, Pam Bondi in particular, picked some people that the district courts didn't want to then pick, right, to have service until a confirmed person was put in place. And so they chose different people who the president then fired. The second alternative is the Federal Vacancies Reform Act, which applies to U.S. attorneys, but also applies to hundreds of other positions. And it allows certain people to be picked as an acting, not an interim, U.S. attorney for a certain amount of time. And those time limits are extended if there are nominations.

9:02And so this is a common way that administrations of both parties have picked people. Now, there's litigation that's been going on on this second alternative about whether you can put kind of someone in as what is known as the first assistant. And under the act, the first assistant is the default acting. And there's a question about whether the first assistant can be named after the vacancy. And We'll get to litigation in a second. And then the third alternative is that if you don't have a district court pick and 120 days have expired and the president has fired the district court pick and the federal vacancies are formatted, either because the courts have said a post-vacancy first assistant isn't allowed or the time limits have run out, then you're in the third alternative where these offices are basically run by the principal deputy under what is known as delegation.

9:50And so that person doesn't have a title, is not known as the interim or the acting U.S. attorney, but typically a career person runs these offices. Now that's changed this administration because that kind of delegation has often now been kind of moved to a much more political person. Yeah, so there are all of these fallbacks. But what seems to have happened in a lot of parts of the country with this administration is they named people who didn't fit the normal profile. So probably the most notorious initial one was Alina Habba, who was the president's personal lawyer in a couple of cases from before he became president during the time he was out of office, who had no prosecutorial experience at all.

10:43and he put her in. Or there was putting somebody into the Eastern District of Virginia on the grounds that the president wanted a particular set of prosecutions brought, and this person agreed to bring them. So what's the litigation that's going on now about? So most of the litigation concerns basically the second and third alternatives. And the first legal question is whether under the Vacancies Act, you can name a first assistant after the vacancy. And this has been common practice among Democratic and Republican administrations. Obviously, an administration leaves, there's a vacancy, new administration comes in, they name first assistants, it's after the vacancy.

11:34those people are elevated to be the default acting. But it's arisen in this context of kind of unqualified people. And so when you look at the text of the Vacancies Act, which I think is ambiguous, could cut either way, the courts have interpreted that language to say they're looking at unqualified people. And I don't think it's surprising that they're not considering all these other positions or more normal uses of the Vacancies Act. And they're saying, you know, we're kind of undermining the spirit of the appointments clause. We're not going to allow post-vacancy first assistance. And basically every court to consider that issue in the U.S.

12:14attorney context has found that. They've all ruled that post-vacancy first assistance are not allowed. So that kind of gets rid of that second alternative where you can't have an acting U.S. attorney because the first assistant has been named after the vacancy and there's some technicalities. The president could pick other people within certain time limits, but the administration has not kind of tried those alternatives. But if you take that back one step to things other than U.S. attorney's offices, if you take it to various parts of the Justice Department or Health and Human Services and the like, it has a big impact there, doesn't it?

12:53It's a huge deal. It will have incredible effects on any new administration, and even more so if the new administration is controlled by a different party than the Senate. So imagine a Democratic president comes in and the Senate is controlled by Republicans. That's going to make confirmations incredibly hard, which is going to put pressure on the need for acting officials. And these new first assistants are not going to be able to serve as the acting. So you'll have to go with some career person, presumably. Yeah, you're going to pick, there is this, I said the technicalities of the Vacancies Act does allow the president and the president alone, so there's going to be kind of a bottleneck of paperwork, allows the president alone to pick a senior enough career person who has been in the agency for at least a year prior to the vacancy who's paid GS-15 or higher to serve as the acting.

13:46And so that's going to have to be the alternative for new administrations. And I think that may be hard with 300 ,000 people leaving federal government service in the first year of President Trump's second term. Many senior people took the fork in the road buyout. Like who exactly are those people going to be assuming a Democrat wins and goes into the White House in the next election? So are these holdings in some sense undermining or inconsistent with the big Supreme Court project of the unitary executive and the president having control over the executive branch? Well, I feel like the unitary project has been constitutional in nature, and these are statutory claims.

14:29But is the statute, does the statute in that sense undermine the unitary executive? Because a president comes in and he can't get his Senate confirmed nominee through the Senate or can't get them through quickly because the Senate's held by the other party. He can't take presidential appointees like the deputy assistant secretary of this and that. That person can't now be enacting. So he's got to look for somebody in the civil service who is sufficiently senior, has been there sufficiently long, and is sufficiently sympathetic to his policy goals. Yes. But I think you want to be careful, right?

15:12Because this administration did try an argument at the start, which was that a president had inherent authority under Article 2 to name acting officials. And the courts did not accept that at all. And we don't want that to be that kind of consequence of these statutory rulings. I think this is an easy fix. Katie Porter, when she was in Congress, got through the House when it was controlled by the Democrats, something called the Accountability for Acting Officials Act, which talked about first assistance. And in markup, that bill would allow post-vacancy first assistance for the first few months of a new administration.

15:50You could see there being reasons not to have that continue throughout an administration because of this strategic behavior. So that's one of the big issues of litigation. But we always kind of had the comfort. I always thought, oh, OK, all these courts have said post-vacancy first assistance, not allowed. And I thought, well, OK, that's going to be a pain if you want people to have the acting title. You're going to have to find these senior careerists. Or we had a workaround, right? Because the Vacancies Act also has time limits. And that workaround was delegation, which was that, okay, you're not going to give someone the acting title, but at least you could give to the first assistant.

16:27They could do everything that is not exclusive to the job, what is known as the non-exclusive duties of the job. And this had been common practice. But this is what got used in the U.S. attorneys. They said with Alina Habba, okay, she can't be the first assistant who's the default acting. We're just going to delegate everything to Alina Habba. And the Third Circuit said, no, That is actually not allowed by the Vacancies Act. And it was the first court of appeals to hold that. And that has even larger ramifications than the post-vacancy first assistance by saying you can't delegate the non-exclusive functions.

17:03And I think a lot of us thought, oh, it's just the Third Circuit. The administration then tried to delegate to three people instead of one. The district court said, no, that too is banned. And the administration blinked. And they basically said, we're not going to appeal that. We're just going to accept a pick by the district court. But then just this week, the Ninth Circuit held similarly in a kind of also in U.S. attorney litigation that you couldn't delegate to one person. Now, the Ninth Circuit was much more open, right? The Ninth Circuit says we need not decide what kinds of more limited delegations might be permissible and even suggest that a kind of a large set of duties could be delegated to one person with a smaller set delegated to another person.

17:49But that's huge, right? Because now you're going to have to delegate to multiple people instead of one person. And that's going to have incredible effects, not just at the start of the administrations, but when you don't have Senate confirmed people coming in once someone leaves in the middle, like how is the government going to function? And I think it's going to have asymmetric effects and it's going to hurt the Democrats more than the Republicans, because I think for many agencies not having it function, is going to be seen as a boon to conservatives. Yeah, if you don't want the government to do anything, then the fact that the government can't do anything is a benefit.

18:24If you want the government to be able to be active in some ways, then it's really a problem. So I had alluded earlier to the other big piece of kind of presidential power, which is the power to fire and the Supreme Court's decision this past term in Trump against slaughter, that basically anyone who holds a high level position, the executive branch has to be fireable by the president. I wonder how far down do you think that goes? I mean, does it right now? It's clear that somebody who serves at the pleasure of the president can presidential appointee present has the ability to fire them in as far as I can tell, virtually any job in the executive branch.

19:05I don't know about that. So I think there's an issue about can you have removal protection? And then there's a separate issue about who can do the firing. Now, you might think the second one is the formalistic argument, but I think of, say, the Librarian of Congress who got fired. Oh, well, the Librarian of Congress, that's the interesting one, I think, in some ways, because that's being litigated over whether that's even a position in the executive branch. Yeah, so it's not just the Librarian. No one's contesting whether the Librarian can be fired. So everyone agrees that the Librarian can be fired.

19:38But the question is, can the president also fire the Register of Copyrights? who the president didn't pick. So the Register of Copyrights has no removal protection and is picked by the librarian. So if we assume that the Librarian of Congress, at least for some functions, is executive because they do this copyright royalties, they adjudicate other things with executive type functions with regard to copyrights, is can the president remove an inferior officer she didn't pick. And I think the answer to that is no, right? Why did we have free enterprise fund if the president can just swoop down a level?

20:18That's right. Although from having read the copyright stuff at the Librarian of Congress copyright firing thing at the stay stage, it wasn't even entirely clear to me that the Librarian of Congress is fireable by the president. Yeah. So the D.C. Circuit, in a case actually by my former judge, Judge Williams, called Intercollegiate Broadcasting, it involved a different position involving copyrights at the Library of Congress called the Copyright Royalty Board. And it was an appointments clause. And there was a separation of powers removal question. And it turns out that the Copyright Royalty Board members could only be fired for cause under the statute.

20:56And they were picked by the librarian. And so there was this whole issue. And in intercollegiate broadcasting, it was a very functionalist opinion. It's kind of interesting. And Judge Williams finds that because the functions of copyright are executive, that the librarian of Congress is the head of an executive department, even though the librarian is of Congress, right? So it's a kind of functionalist type of analysis. Yes. But I do think it is the court had never held that. But in this litigation, like both sides kind of just agreed that you could fire the librarian and just left open this question is, can the president kind of go down a level and fire him?

21:36Then there was this question because they didn't have a librarian of Congress. They appointed Todd Blanche. So that's a statutory issue. And then the question was, could he be appointed to that job or not? Yeah. Yeah. I mean, this is like Russian dolls. Yeah. I do think it's interesting for students, right, that the constitutional inquiry is different than the statutory inquiry. And so even Justice Scalia and Ms. Stretta, right, about the sentencing commission said Congress can define agencies for statutory reasons, right, can say some agency is subject to FOIA or not subject to FOIA. And I think similarly, like here, I think that the statutory language is clear that the librarian of Congress is not subject to the Vacancies Act.

22:18And I think that's within the powers of Congress because that's like a statutory issue, whereas like the firing thing is a constitutional issue where there's all this deference, of course, is going to the courts, not to Congress. Right. So we now have, though, the Supreme Court having said that when it comes to executive branch officials who were appointed by the president, either appointed with the consent of Congress or just appointed the way the sort of next level down kinds of jobs, like the job I had was appointed by the president, but not subject to Senate confirmation. Those people can all be fired by the president.

22:53How far down low does this go? That is, could Congress provide, as it does now, for cause removal protection to members of the civil service? Can Congress define what's inside the civil service and what's not? Yeah, so I think there's a line. I would draw the line at principal officers. I still think Perkins is good law. And so I think you could have removal protections even on inferior officers. But I definitely think so that made that the strictest line to draw. It's like the president has. And why? Explain. I think because Congress in the Constitution, there is like explicit text about the role of Congress in inferior officers and through the appointments clause.

23:35And of course, there's a necessary and proper clause and inferior your officers, according to Edmund, like generally are directed and supervised by principal officers. So I feel like all the power that's needed for the executive should be through principal officers. And now after slaughter, she has that. Can you just stop you there for a minute, which is I understand that, but it does seem a little odd to me to say that the reason the president can't fire the deputy assistant secretary of HHS, who's refusing to do what the president wants to do with regard to, let's say, immunizations, is because he could direct the secretary of HHS to fire the person.

24:19And then if the secretary doesn't fire the person, he can fire the secretary of HHS. I mean, it's really like saying you have an elephant gun to deal with a gnat. Fair enough. Fair enough. But I do think that there is a kind of, some of it is like procedural and having some of the layers is important. And right. We don't want the president kind of engaging. I mean, that reasoning would allow the president to go all the way down. Like what is the line? Right. That's why. Yeah. I mean, it's clear we want a line. I'm just trying to figure out a little bit. Maybe another line is that it's not the inferior officer line, right?

25:01Or it's not inferior officers with small duties, right? It's a line between officer and non-officer. So those in the competitive service, like employees, those would have the protection because they're not under the appointments clause exercising the type of power where the president needs this oversight role. And that all makes sense for the appointments clause issue. But if you take, I mean, I don't, I kind of reject the unitary executive theory in its most robust form. But if you take it in its most robust form, then it's the president's job to decide what our inoculation policy is. And if he can't fire the people who are not doing the inoculation policy the way he wants, then he doesn't actually have all the executive power.

25:48He would say, the deep state has it instead of me and isn't that terrible. And I think that shows why the unitary executive power can't be right. But if they have the courage of their convictions. Yeah, I think if they had the one of the things I'm most worried about administrative law is that they have the power of their convictions. It's going to be a kind of like, well, the president told me so. And that would get rid of all Administrative Procedure Act review. Like an agency is just doing what the president says. The president is not subject to the Administrative Procedure Act because that governs agencies, not the president, according to Franklin v.

26:24Massachusetts. And well, then why go through arbitrary and capricious review if the agency just says, well, the president told me to do it and the president's not subject to the APA? So I think the answer has to be something like the necessary and proper clause is allowing Congress to create the agencies, to create the offices and create structures. And now, of course, under the appointments clause and removability jurisprudence that has developed, that within the kind of structures that Congress has created, yes, for these very top positions, we're going to give the president incredible control, both at the front end and the back end.

26:58But it's not getting rid of the kind of agency apparatus that Congress had the power to create. Yeah, it's such an interesting and tangled area of law. I know we could spend hours and hours on it, but we've come to the end of our time. So I want to thank my guest today, Ann Joseph O 'Connell. This is Stanford Legal. If you're enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show and it helps new listeners to discover us. I'm Pam Carlin. See you next time.