Vacancies Act

GAO has long maintained that the Vacancies Act is the exclusive authority for the temporary filling of vacant positions that require presidential appointment and Senate confirmation. In GAO's view, the application of the act can be superseded only if there is specific statutory language providing another way to fill the vacancy in question. The Justice Department and other executive branch agencies disagree with GAO's opinion, contending that the act can be overcome by provisions in their enabling statutes that give authority to the agency head to assign functions and delegate authority within the agency. GAO disagrees with these arguments. The Administration's continued disregard of the Vacancies Act in the face of congressional intent, many Comptroller General opinions, and greater congressional and public scrutiny suggests that Congress may wish to consider additional action to ensure compliance. For example, Congress could prohibit salary payments to those who occupy positions in violation of the Vacancies Act. This would provide an incentive for the President and those filling the vacancies to comply with the legislation. In addition, Congress could establish a reporting mechanism, such as requiring agencies to advise Congress or GAO about vacancies, their duration, and nomination. This would strengthen oversight and ensure that vacancies in the government's most responsible positions are filled promptly.

GAO noted that: (1) in a long line of cases beginning in 1973, the Comptroller General has maintained that the Vacancies Act is the exclusive authority for the temporary filling of vacant positions that require presidential appointment and Senate confirmation; (2) application of the Vacancies Act can be superseded only if there is specific statutory language providing another means for filling the particular vacancy in question; (3) the Department of Justice (DOJ) and other executive departments have taken exception to GAO's opinion; (4) they maintain that the Vacancies Act can be overcome by provisions in their enabling statutes that vest the functions of the department in the agency head and give general authority to this official to assign functions and delegate authority within the department; (5) the position of DOJ and other departments is not supported by the language of the Vacancies Act or the enabling statutes which are cited; (6) moreover, the legislative history of the Vacancies Act, including the 1988 amendments thereto, as well as the Department of Justice Act of 1870 and various reorganization plans do not support their position; (7) by passing legislation providing for an alternative means for filling specific vacancies in some cases, Congress has shown that it knows how to provide for independent statutory authority separate and apart from the Vacancies Act; (8) if the position of DOJ and other departments is accepted, these specific provisions would be redundant and need not have been enacted; and (9) although GAO believes that the Vacancies Act is clear, amendment of the Act to clarify congressional intent could help insure that the Act is followed and that the President acts in a judicious manner to make appointments which are subject to Senate scrutiny.

Recommendations

Our recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.

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