End Run Around the Constitution
IntellectualCapital.com
8 April 1998 John H. Fund
Democratic Sen. Robert Byrd (WV), a former majority leader, and GOP Sen. Fred Thompson (TN) do not often agree. But they both argue that the Clinton administration is doing an unconstitutional end run around the Senate's duty to "advise and consent" on appointments.
An astonishing 59 of the 320 executive-branch posts that require Senate confirmation are being filled in violation of the Vacancies Act. In the Commerce Department, nearly a third of top jobholders are in violation.
Vacancy vacuum
The two senators are sponsors of a bill that would enforce the law's 120-day limit on how long an acting official can perform duties without a permanent appointment being made. Without a clear crackdown by Congress, Thompson says we could have "an entire government filled with temporary appointments, which could last for an entire administration." A president could then, in theory, appoint extremist policy-makers who could never be confirmed to their jobs and simply allow them to exercise power on an acting basis.
A Congressional Research Service memo last year concluded that the Clinton White House's claim, for example, that the Justice Department was exempt from the Vacancies Act was untenable. CRS found that the acting heads of both the criminal division and the Office of Legal Counsel were holding their jobs in violation of the law. Since then, an appointment has been at OCS but the top job in the criminal division now has been vacant since Aug. 31, 1995 -- a mind-boggling 942 days with no end in sight.
This vacuum has had serious effects on the ongoing probe of 1996 campaign-finance violations. John Keeney, the acting head of the criminal division, has had to recuse himself because his son is a lawyer for Democratic fund-raiser John Huang. That means Lee Radek, head of the public integrity section and a staunch opponent of the independent counsel law, directly briefs Attorney General Janet Reno on whether or not the law should be triggered. Radek is said to be a major reason Reno has refused to call for an outside investigation despite staggering evidence of Justice's conflict of interest in pursuing its own probe.
Constitution under siege
Clinton aides privately dismiss the Vacancies Act as burdensome, an obscure law passed in 1868. That is reminiscent of the argument they made that Vice President Al Gore was not really covered by the 1882 Pendleton Act barring fund raising in federal buildings because the law was old and unwieldy. In fact, it was because presidents such as Richard Nixon failed to observe the original Vacancies Act that Congress updated and strengthened it as recently as 1988.
The Constitution makes clear that all top federal officials must be appointed by the president and confirmed by the Senate. An exception was made for a time when travel was much more inconvenient. A president can make a "recess" appointment if Congress has left town and the appointment lasts until the end of the next session. The Clinton White House has abused both recess appointments and the Vacancies Act.
Byrd's patience with this cavalier behavior snapped last December when the Senate Judiciary Committee failed to confirm Bill Lann Lee as assistant attorney general for civil rights. Clinton promptly named Lee as acting head for civil rights and since then has shown no signs of naming a permanent appointee subject to confirmation. Byrd says Lee's continued service after his first 120 days in office are up next month will be in "defiance of the plain language of the Vacancies Act." He argues that if Congress allows a virtual government of temporary appointees to grow, the Constitution itself will be "under siege."
Tightening the rules for 'temporary' appointees
Byrd has filed legislation to put teeth into the Vacancies Act. It would clearly state, for the first time, that it supersedes all other provisions of law. Any temporary appointee serving in violation of the statute would have their pay and benefits halted. The principle here is that any officials placed in a position of power outside legal channels should have no more authority to make policy than citizens on the street. Their actions could be challenged in court and ruled invalid.
Byrd and Thompson say it is such applications of the rule of law that separate this republic from banana republics where executives often feel free to make up the rules as they go. It is time to tell the Clinton administration to end "home alone" government and stay within the parameters of the law.
John Fund is a member of the editorial board of The Wall Street Journal. He is a contributing editor of IntellectualCapital.com. |
