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40-560: The Federal Vacancies Reform Act of 1998 (commonly called the Vacancies Act ) ( 5 U.S.C.   § 3345 et seq. ) is a United States federal statute establishing the procedure for filling vacancies in an appointed office of an executive agency of the government before the appointment of a permanent replacement. The Act allows an incoming President 300 days in which to temporarily and unilaterally fill positions with "acting" officers. After this initial extended period,

80-633: A "first assistant" under the Federal Vacancies Reform Act because he had never served in a subordinate role to any other USCIS official. In February 2023, the Government Accountability Office said that three acting executive department heads were serving in violation of the Vacancies Act. [REDACTED]  This article incorporates public domain material from websites or documents of

120-625: A margin of 53-38. West Virginia Senator Robert Byrd was the only Democrat voting in favor of closing debate. No action was seen in the House on this bill, however the legislation was added to the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 ( H.R. 4328 ), which finished the appropriations process for Congress for Fiscal Year 1999. The omnibus bill passed the House of Representatives on October 20, 1998, by

160-541: A third or later nominations. However, an incoming President is given 300 days in which to nominate a permanent replacement, instead of the regular 210 days. If an office remains vacant after 210 days after the rejection, withdrawal, or return of a second presidential appointment nomination, it remains vacant until a person is appointed by the President, by and with the advice and consent of the Senate. In such instance, only

200-486: A vote of 333–95. It then passed the Senate the following day on October 21, 1998, by a vote of 65–29. President Bill Clinton signed the bill the same day and it became Pub. L.   105–277 (text) (PDF) . In 2001, the Duke Law Journal published an article criticizing the nomination process and the Federal Vacancies Reform Act of 1998. The author, Joshua Stayn, asserts four constitutional problems with

240-665: Is a stub . You can help Misplaced Pages by expanding it . United States Secretary of Homeland Security The United States secretary of homeland security is the head of the United States Department of Homeland Security , the federal department tasked with ensuring public safety in the United States . The secretary is a member of the Cabinet of the United States . The position was created by

280-550: Is as follows. However, the legality of this update was challenged . Formerly, an April 10, 2019 update to the DHS Orders of Succession, made pursuant to the Homeland Security Act of 2002 , provided a different order in the case of unavailability to act during a disaster or catastrophic emergency: As a result of Executive Order 13753 in 2016, the order of succession for the secretary of homeland security

320-565: The Attorney General . Also, the Secretary of Labor is subject to a different law that does not have a time limit on the term for an acting secretary. It requires the executive branch departments and agencies to report to Congress and Government Accountability Office (GAO) information about the temporary filling of vacant executive agency positions that require presidential appointment with Senate confirmation . The act requires

360-609: The Comptroller General report to specified congressional committees, the president, and the Office of Personnel Management if an acting officer is determined to be serving longer than the 210 days (including applicable exceptions established by the act). One of the additional requirements of the Act was to mandate that federal department and agencies create lines of succession plan in case of disaster or emergency. Though

400-739: The General Services Administration . Title 5 of the United States Code Title 5 contains organizational and administrative provisions directing the federal government, including the Freedom of Information Act , Privacy Act of 1974 , the Congressional Review Act as well as authorization for government reorganizations such as Reorganization Plan No. 3 . The title also contains various federal employee and civil service laws of

440-572: The Government Accountability Office . [REDACTED]  This article incorporates public domain material from websites or documents of the United States Senate . [REDACTED]  This article incorporates public domain material from websites or documents of the Congressional Research Service . [REDACTED]  This article incorporates public domain material from websites or documents of

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480-678: The Homeland Security Act following the attacks of September 11, 2001 . The new department consisted primarily of components transferred from other Cabinet departments because of their role in homeland security, such as the Coast Guard , the Federal Protective Service , U.S. Customs and Border Protection (which includes the United States Border Patrol ), U.S. Immigration and Customs Enforcement (which includes Homeland Security Investigations),

520-450: The Homeland Security Act of 2002 creates exceptions to FVRA, mandating that the under secretary of homeland security for management is third in the line of succession for Secretary of Homeland Security, and establishes an alternate process by which the secretary can directly establish a line of succession outside the provisions of the FVRA. As of November 8, 2019, the order of succession

560-469: The Office of Legal Counsel under the George W. Bush administration held that all acting officers are inferior officers and not subject to the requirement for Senate confirmation. A person nominated to a position may not concurrently serve as an acting officer for that position unless that person is in a "first assistant" position to that office and either has served in that position for at least 90 days, or

600-619: The Presidential Succession Act . The law sets forth additional provisions regarding vacancies existing during presidential inaugural transitions, independent establishments, and exceptions to requirements of this Act for certain board members of independent establishments or Government corporations or commissioners of the Federal Energy Regulatory Commission . The law was a revision of the Vacancies Act originally passed in 1868. After

640-725: The United States Secret Service and the Federal Emergency Management Agency . It does not, however, include the Federal Bureau of Investigation or the U.S. Marshals Service . They continue to operate under U.S. Department of Justice . The current secretary of homeland security is Alejandro Mayorkas , since February 2, 2021. He is the first Latino and immigrant to lead the Department of Homeland Security. Prior to

680-537: The Watergate scandal , other laws that allowed agency heads to delegate functions to subordinates were increasingly used as an alternative to evade the strict rules of the Vacancies Act. By 1998, temporary appointments filled 20% of the 320 positions requiring Senate confirmation. The Federal Vacancies Reform Act was introduced in the US Senate on June 16, 1998, as S. 2176 of the 105th Congress. The sponsor of

720-542: The "senior officer or employee" clause may be unconstitutional when applied to principal officers such as department secretaries, because the Appointments Clause of the Constitution requires Senate confirmation for these positions. People supporting this interpretation include Neal Katyal , George Conway , Clarence Thomas , and John Yoo , and people opposing it include David B. Rivkin . An opinion of

760-540: The Act was passed in 1998, many agencies didn't fulfill that requirement until after the September 11, 2001 terrorist attacks . President George W. Bush signed executive orders designating lines of succession in seven key departments within months after the attack. These succession plans do not affect the presidential line of succession , which is governed by the United States Constitution and

800-582: The NYPD's programs, stating "the average number of stops we conduct is less than one per officer per week" and that this and other practices have led to "7,383 lives saved—and... they are largely the lives of young men of color." Kelly was also featured because of his NYPD retirement and unusually long tenure there in a long segment on the CBS News program Sunday Morning in December 2013, especially raising

840-734: The Secretary can directly establish a line of succession outside the provisions of the FVRA. Similarly, the Intelligence Reform and Terrorism Prevention Act of 2004 mandates that the Principal Deputy Director of National Intelligence is first in line to the Director of National Intelligence role. The law applies vacancy provisions of the Federal Judicial Code with respect to the office of

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880-461: The Trump administration installed Ken Cuccinelli as acting director of U.S. Citizenship and Immigration Services and Mark Morgan as acting director of U.S. Immigration and Customs Enforcement by appointing them to newly created "principal deputy director" positions that outranked the preexisting deputy director positions. This was criticized as avoiding Senate scrutiny for these positions through

920-545: The United States, including authorization for the Office of Personnel Management and the General Salary Schedule and Executive Schedule classification systems. It also is the Title that specifies Federal holidays ( 5 U.S.C.   § 6103 ). In addition, there is an appendix to Title 5 but it is not itself considered positive law. It contains reorganization plans. On September 6, 1966, Title 5

960-628: The Vacancies Reform Act. For example, the Homeland Security Act of 2002 as amended by the National Defense Authorization Act for Fiscal Year 2017 mandates that the Under Secretary of Homeland Security for Management is third in the line of succession for Secretary of Homeland Security as an explicit exception to the Federal Vacancies Reform Act, and establishes an alternate process by which

1000-527: The act: In 2018, upon the appointment of Matthew Whitaker as Acting Attorney General, some scholars and former government officials (including former Acting Solicitor General of the United States Neal Katyal ) argued that the "senior officer or employee" clause may be unconstitutional when applied to principal officers, because the Appointments Clause of the Constitution requires Senate confirmation for these positions. In mid-2019,

1040-525: The bill was Senator Fred Thompson of Tennessee, then chairman of the Senate Governmental Affairs Committee . Support for the bill was mainly on partisan lines with Republicans supporting the bill and Democrats opposing it. Though Republicans outnumbered Democrats, Democrats filibustered the bill, debating it ad infinitum so it could not be brought to a vote. The cloture vote to end debate failed on September 28, 1998, by

1080-771: The establishment of the U.S. Department of Homeland Security, there existed an assistant to the president for the Office of Homeland Security, which was created following the September 11 attacks in 2001. Parties     Republican (5)     Democratic (3)     Independent (4) Status    Denotes Acting Homeland Security Secretary a. James Loy served as acting secretary in his capacity as Deputy Secretary of Homeland Security . b. Rand Beers served as acting secretary in his capacity as confirmed Undersecretary of Homeland Security for National Protection and Programs and Acting Deputy Secretary of Homeland Security; Beers

1120-557: The filling of federal vacancies to authorize the president, if an appointed officer of an executive agency (defined to include the Executive Office of the President and exclude the GAO) dies, resigns, or is otherwise unable to perform office functions, to direct a person who serves in an office for which appointment is required to perform such functions temporarily in an acting capacity, subject to specified time limitations. It retains

1160-415: The head of an executive agency may perform office functions until such appointment is made in the case of an office other than the office of head of an executive agency. The law makes vacancy and time limitation provisions applicable to any affected office for which an advice and consent appointment is required unless: Some agencies are partially exempt from these provisions through other laws that override

1200-412: The normal confirmation process. In September 2019, a lawsuit was filed challenging Cuccinelli's asylum directives, partially on the basis that his appointment was invalid. On March 1, 2020, US District Court Judge Randolph Moss , who was appointed by Barack Obama , ruled that Cuccinelli's appointment as USCIS director was illegal because the newly created principal deputy director role did not count as

1240-458: The offices officially become vacant and the President has 210 days to fill the vacancies. However, provisions in the Act, described as a loophole, allow the president after these periods to assign the "nonexclusive duties" of a vacant position to a person to perform, provided they are not described as "acting". The de facto acting officers can be described as “performing the duties of...”, or similar description. The law revises provisions relating to

Federal Vacancies Reform Act of 1998 - Misplaced Pages Continue

1280-449: The online internet news website/magazine Huffington Post detailed "a growing campaign to quash the potential nomination of New York City Police commissioner Raymond Kelly as the next secretary of the Department of Homeland Security" amid claims of "divisive, harmful, and ineffective policing that promotes stereotypes and profiling". Days after that article, Kelly penned a statistics-heavy Wall Street Journal opinion article defending

1320-524: The question of the controversial "stop and frisk" policy in New York City and the long decline and drop of various types of crimes committed. The Office of the Secretary (OS) oversees the execution of the duties of the Department of Homeland Security. Certain elements also aid the Secretary of Homeland Security and senior officials of the Department of Homeland Security, as well as private sector and government partners in their duties. The Office of

1360-468: The requirement that the first assistant of such officer shall perform such functions temporarily in an acting capacity as well, subject to specified time limitations and the limitations described below. Any action to perform a function of a vacant office by a person filling a vacancy in violation of requirements or by a person who is not filling such vacancy shall have no effect. Three classes of persons may serve as acting officers: It has been argued that

1400-588: Was ruled unlawful . f. Peter Gaynor served as acting secretary in his capacity as Federal Emergency Management Agency Administrator. g. David Pekoske served as acting secretary in his capacity as Administrator of the Transportation Security Administration While appointment of acting officials is generally governed by the Federal Vacancies Reform Act of 1998 (FVRA),

1440-429: Was appointed to that position through the advice and consent process. When a vacancy occurs, the position can be filled by an acting officer for 210 days from the date of the vacancy, in addition to the time when a nomination is pending before the Senate. If a first or second nomination is rejected by the Senate or withdrawn, it activates additional 210-day periods from the date of the rejection, but this does not apply to

1480-517: Was as follows: George W. Bush nominated Bernard Kerik for the position in 2004. However a week later, Kerik withdrew his nomination, explaining that he had employed an illegal immigrant as a nanny. By July 2013, Raymond Kelly had served as Commissioner of the New York City Police Department (NYPD) for nearly 12 straight years. Within days of Homeland Security secretary Janet Napolitano 's announcement that she

1520-745: Was enacted as positive law by Pub. L. 89–554 (80  Stat.   378 ). Prior to the 1966 positive law recodification, Title 5 had the heading, "Executive Departments and Government Officers and Employees." In 2022, Congress moved the Federal Advisory Committee Act , Inspector General Act of 1978 , and the Ethics in Government Act from the Title 5 Appendix to Title 5 itself. Part I Part II Part III Part IV {Wikisource|United States Code/Title 5|USC Title 5}} This United States federal legislation article

1560-513: Was resigning, Kelly was soon cited as an obvious potential successor by New York senator Charles Schumer and others. During a July 16, 2013, interview, President Obama referred generally to the "bunch of strong candidates" for nomination to head the Department of Homeland Security , but singled out Kelly as "one of the best there is" and "very well qualified for the job". Later in July 2013,

1600-591: Was the highest ranking Senate-approved presidential appointee at the Department of Homeland Security . c. Elaine Duke served as acting secretary in her capacity as Deputy Secretary of Homeland Security . d. Kevin McAleenan served as acting secretary in his capacity as Commissioner of Customs and Border Protection . His tenure was ruled unlawful . e. Chad Wolf served as acting secretary in his capacity as Under Secretary of Homeland Security for Strategy, Policy, and Plans . His tenure

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