Harvard Journal on Legislation

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Legal Constraints on Executive Power to Manage Agency Vacancies

Lauren Shapiro*

I. INTRODUCTION

Throughout the history of the Republic, high-level government offices have often gone unfilled for periods of time.1 See Nina A. Mendelson, The Permissibility of Acting Officials: May the President Work Around Senate Confirmation?, 72 ADMIN. L. REV. 533, 578 (2020); see also Anne Joseph O’Connell, Actings, 120 COLUM. L. REV. 613, 638–41 (2020) (citing past research and statistical data on vacancy rates). Such vacancies occur for a variety of reasons—perhaps the President has failed to nominate a permanent officeholder, the Senate has stalled on a nominee’s confirmation vote, or the original confirmed officeholder has died, resigned, become sick, or been fired.2 See 5 U.S.C. § 3345(a) (specifying that the FVRA applies when covered Senate-confirmed officers “die. . ., resign. . ., or [are] otherwise unable to perform the functions and duties of [their] office.”); see generally Ben Miller-Gootnick, Note, Boundaries of the Federal Vacancies Reform Act, 56 HARV. J. ON LEGIS. 459 (2019) (contending that the FVRA does not apply to firings). Historically, regardless of the reason, extended vacancies for top positions requiring Presidential nomination and Senate confirmation (“PAS” positions) have been rare.3 See O’Connell, supra note 1, at 645, 648; see also Mendelson, supra note 1, at 582 (citing Thomas Berry, Is Matthew Whitaker’s Appointment Constitutional? An Examination of the Early Vacancies Acts, YALE J. ON REG.: NOTICE & COMMENT (2018), https://www.yalejreg.com/nc/is-matthew-whitakers-appointment-constitutional-an-examination-of-the-early-vacancies-acts-by-thomas-berry/ [https://perma.cc/NTL8-XD6F]) (“Berry elaborated further that periods of [acting] service [pre-1860], including for the ad interim appointments, generally were extremely short—on the order of days or weeks rather than months or years.”).

The Trump administration departed from this trend: it faced more vacancies for PAS positions—and filled them with longer-serving acting officials—than any prior administration for which data exists.4 See O’Connell, supra note 1, at 623, 643–57; see also ANNE JOSEPH O’CONNELL, ACTING AGENCY OFFICIALS AND DELEGATIONS OF AUTHORITY (2019), https://www.acus.gov/sites/default/files/documents/final-report-acting-agency-officials-12012019.pdf [https://perma.cc/D7CR-BX3Q] (“President Trump’s acting Secretaries have served longer, on average, than recent Administrations.”) [hereinafter O’CONNELL, ACTING AGENCY OFFICIALS]. Acting officials, who are not Senate-confirmed to the relevant position, occupied several high-level posts for years during the Trump administration.5 See BOB COHEN ET. AL, P’SHIP FOR PUB. SERV., THE REPLACEMENTS: WHY AND HOW “ACTING” OFFICIALS ARE MAKING SENATE CONFIRMATION OBSOLETE 7–8 (2020), https://ourpublicservice.org/wp-content/uploads/2020/09/The-Replacements-1.pdf [https://perma.cc/Z2LR-TUX8]. Some positions, such as the State Department Special Envoy for North Korea Human Rights Issues, remained perennially vacant.6Id.

Under the Federal Vacancies Reform Act of 1998 (“FVRA”), extremely long tenures of acting officials such as these must eventually come to an end. Pursuant to the FVRA, when the permissible period for acting service expires, the PAS position again becomes vacant, and “only the head of [the] agency may perform any function or duty of [the] office.”75 U.S.C. § 3348(b)(2) (2004). If someone other than the head of the agency performs the functions and duties of the again-vacant office, the resulting actions will be rendered void ab initio.85 U.S.C. § 3348(d)(1) (2004).

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Reconceptualizing Congressional Decision-making Around Well-being: A Health in All Policies Approach

Congressman TJ Cox, Dr. Kathy Murphy, & Rebecca Kahn

I. INTRODUCTION

Protecting and promoting the public’s health is one of the most important roles of government. The preamble of the United States Constitution states that our government’s role is to “secure the blessings of Liberty” and “insure domestic Tranquility” through the establishment of “Justice,” a “common defense,” and through the “promot[ion] of general Welfare” for ourselves and future generations.1 U.S. CONST. pmbl. Article I of the Constitution establishes the legislative branch of the federal government—the Congress—which has the purpose of enacting laws in service of this preamble.2 U.S. CONST. art. I.

Unfortunately, public health or human well-being is not formally considered in the congressional lawmaking process, much less given primacy. Instead, a potential law’s effect on the federal budget is the only scored consideration in the annual legislative budget process.3 MEGAN S. LYNCH, CONG. RSCH. SERV., 98-721, INTRODUCTION TO THE FEDERAL BUDGET PROCESS 14–15 (2012). Since the Congressional Budget and Impoundment Control Act of 1974, the requirement of a cost estimate in the form of a Congressional Budget Office (“CBO”) score for most legislative proposals has oriented the lawmaking process towards economic considerations, first and foremost.4Frequently Asked Questions About CBO Cost Estimates, CONG. BUDGET OFF., https://www.cbo.gov/about/products/ce-faq [https://perma.cc/J6FD-MAEV]. While this is a critical function, as Robert Kennedy stated in 1968, “the gross national product does not allow for the health of our children . . . [it] measures everything in short, except that which makes life worthwhile.”5Sen. Robert F. Kennedy, Remarks at the University of Kansas (Mar. 18, 1968), https://www.jfklibrary.org/learn/about-jfk/the-kennedy-family/robert-f-kennedy/robert-f-kennedy-speeches/remarks-at-the-university-of-kansas-march-18-1968 [https://perma.cc/B2FV-9EJ2].

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Fixing the United States Postal Service: How Congress Must Act to Bring Financial Stability to the Agency and Comprehensive Mail Service to the American People

Congresswoman Alma S. Adams, Ph.D. and Gordon E. Holzberg

I. INTRODUCTION

The United States Postal Service (“USPS”) — first established as the United States Post Office with the Post Office Act of 1792 — has long served the American people. As of 2020, the Postal Service employs over 600,000 people,1See Fact #238, U.S. POSTAL SERV., https://facts.usps.com/size-and-scope/#fact238 [https://perma.cc/V2MA-RHME]. operates over 31,000 retail locations,2See Fact #226, U.S. POSTAL SERV., https://facts.usps.com/size-and-scope/#fact226 [https://perma.cc/6AW5-P9EC]. and handles 48% of the world’s daily mail flow.3See Fact #362, U.S. POSTAL SERV., https://facts.usps.com/size-and-scope/#fact226 [https://perma.cc/7XSC-398Y].

With the help of Congress, the Postal Service has evolved over the generations to adapt to the pressures at hand. In the late 1960s, those pressures—which included declining revenue, increasing operating expenses, and employee dissatisfaction4See OFFICES OF THE HISTORIAN AND GOV’T RELATIONS AND PUB. POLICY, U.S. POSTAL SERV., 100 THE UNITED STATES POSTAL SERVICE: AN AMERICAN HISTORY 60 (2020), https://about.usps.com/publications/pub100.pdf [https://perma.cc/SW9B-KXTW] [hereinafter USPS HISTORY]. —facilitated the evolution of the U.S. Post Office Department into the U.S. Postal Service, the agency that currently provides mail service in the United States.5See Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 719 In the early 2000s, the pressures centered on declining mail volume.6See CONG. RESEARCH SERV., R40983, THE POSTAL ACCOUNTABILITY AND ENHANCEMENT ACT: OVERVIEW AND ISSUES FOR CONGRESS (2009), https://fas.org/sgp/crs/misc/R40983.pdf [https://perma.cc/9B6G-X4JP]. Now, USPS faces yet another crisis, in addition to the declining volume of letters and flat mail7Hearings on The Financial Condition of the Postal Service Before the H. Comm. on Oversight and Reform, 116th Cong. 3 (2019) (statement of Megan J. Brennan, Postmaster General and Chief Executive Officer, U.S. Postal Service), https://about.usps.com/news/testimony/2019/pr19_pmg0430.pdf [https://perma.cc/SH3F-DJGR].: the massive sums owed by the Postal Service to its retirees.8Id. at 12–13. Fortunately, however, Congress has both the power and the prerogative to identify and enact solutions to these problems.

The first section of this essay will explore the reformation of the Post Office into the Postal Service. The next will examine legislation passed in 2006 that impacted the Postal Service’s current dismal financial status. The final section will lay out a comprehensive vision of the postal reforms needed to ensure the long-term health of this vital institution.

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A Chapter 11 Makeover: Timely Revisions to the Bankruptcy Code to Assist Small Businesses Through Crises

A Chapter 11 Makeover: Timely Revisions to the Bankruptcy Code to Assist Small Businesses Through Crises

Matthew J. Razzano*

I. Introduction

Rarely does Congress act proactively. But with the passage of the Small Business Reorganization Act (SBRA)[1] in 2019, the legislature may have—unknowingly at the time—saved many small businesses from the devastating economic effects of the coronavirus. For years, critics have bemoaned the Bankruptcy Code’s (Code) rigid framework for reorganizing financially distressed companies—specifically its one-size-fits-all treatment of the corner store and the Fortune 500 conglomerate.[2] Yet the SBRA attempted to streamline the lengthy and costly reorganization process, creating a fast-track path for small businesses in Chapter 11.[3]

This Essay argues that while Congress may have gotten lucky in amending the Code prior to a flood of pandemic-induced small business bankruptcies, Congress can make additional changes to better accommodate these struggling entrepreneurs. Part II discusses historical issues with the Code’s treatment of small businesses and the stress placed upon these owners during the coronavirus pandemic. Part III introduces the provisions of the SBRA. And Part IV addresses additional changes needed to holistically improve the bankruptcy system for small business owners.

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Investigating the Attendant Circumstances of RICO from Its Early History and Drafting to Transnational Organized Crime and Extraterritorial Applications: A Perspective on U.S. Prosecutions, Ideology, and Globalization

By: Alina Veneziano*

Abstract

This Article traces the history of extraterritorial regulation, as applied to the Racketeer Influenced and Corrupt Organizations Act (“RICO”), through an examination of underlying domestic circumstances, such as criminal prosecutions, ideology, and globalization. Legal analyses have focused either on the problems of prosecutorial decision-making domestically or the history, shortcomings, and recommendations of RICO. This Article departs from the “either-or” approach and instead combines the two paths into a single analysis of these domestic effects on the extraterritorial regulation of RICO cases. In other words, its purpose is to analyze the phenomenon of extraterritoriality under the basic principles of criminal law, including the duties of prosecutors, the roles of courts, and the ideals that influence these respective parties. While most scholarship relating to extraterritorial applications tends to analyze such issues under international law principles, such as prescriptive jurisdiction or via international comity, sovereignty, or congressional intent, this Article strives to understand these issues on a national level.

While early judicial holdings have been mainly territorial, and courts have thus resisted utilizing extraterritorial regulation, a different situation is presented with organized crime. It is easily the case that organized crime schemes cross multiple borders, and, with the advent of technological advances and globalization, the methods of manipulation and evasion are multiplying faster than law enforcement can keep up. Congress remedied this situation by drafting RICO to target organized crime in a statute that provides for both criminal and civil suits. The problem is that the courts have interpreted this arguably clear statute in a manner that negates RICO’s original intent, force, and meaning. It is these holdings that set the stage for the next era in U.S. history in dealing with transnational organized crime and RICO. Such rationales are based on attendant circumstances such as the resources of prosecutors, ideology, and globalization.

But there is a problem within the U.S. democratic system: lack of resources, ideological inclinations, and the struggle to balance adherence to congressional intent with the consistent application of relief to injured parties. The realizations/recommendations identified by this Article are threefold: (1) to understand that is perfectly permissible for Congress to be concerned with transnational organized crime only as it applies to domestic conditions; (2) to identify a sufficient U.S. nexus requirement that is consistent in civil RICO applications and reduces the risk of foreign resentment; and (3) to implement training in local, state, and federal law enforcement regarding RICO’s intended coverage and geographic scope. While foreign nationals should demonstrate the domestic injury requirement, this same reasoning should not extend to U.S. nationals. Instead, U.S. claimants under a U.S. statute should be able to assert a civil RICO claim without the unprecedented domestic injury requirement in RJR Nabisco v. European Community.[1] The U.S. nexus requirement for U.S. nationals is found in their citizenship, which should be interpreted in a manner as to satisfy the domestic injury requirement when the private RICO claimant is a U.S. national. Such realizations reduce foreign infringement, case-by-case distinctions, and foreign-cubed transactions. Critically, such recommendations have the secondary effect of alleviating prosecutorial overload by shifting some cases to private claimants, reducing the cases that prosecutors bring that fall outside the types of cases envisioned by Congress, and providing more consistent application without the need for judicial or congressional involvement. By redefining the scope and reach of RICO, internal efficiencies are achieved and this, in turn, affects the U.S. enforcement mechanisms on the international field.

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Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons

Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons

Samuel Rubinstein*

The modern independent agency chairperson possesses great executive and administrative power.  Among other things, she usually can appoint and supervise officials, preside at meetings, and distribute the work among her fellow commissioners or board members.  Given this increased power as the chairperson, she is still just one vote.  Despite this, as the “head” of the agency, she is the face of the agency when dealing with other governmental bodies and the public.  However, her appointment procedure is inconsistent—sometimes the President can choose an incumbent commissioner without Senate approval, sometimes the President needs to go back to the Senate for approval, and in rare instances, the board members get to choose the chair themselves—and entirely unstudied.

This Article examines “chairpointments” in the context of the powers of an independent agency chairperson.  In doing so, the Article determines whether chairpersons are principal or inferior officers and the consequences of either result.  Finally, the Article addresses how chairpointments should to be reorganized and harmonized. [Read more…] about Chairpointment: Rethinking the Appointment of Independent Agency Chairpersons