The Judge:
U.S. District Judge Timothy J. Kelly of Washington heard arguments by the bureau deputy director Leandra English, who filed a lawsuit Sunday calling herself the “rightful acting director” according to a 2010 Dodd-Frank act, which established the influential watchdog agency.
Kelly said he would wait until government attorneys supplemented their arguments in a 40-minute hearing by filing a formal, written response Monday night defending Trump’s choice, White House Office of Management and Budget Director Mick Mulvaney, whose appointment they said was authorized under an earlier, 1988 law governing presidential vacancies in general.
Kelly, confirmed in September and one of two Trump nominees serving on the D.C. federal court, said he would notify both sides Tuesday “where we go from there.”
www.washingtonpost.com/…
What the Federal Vacancies Reform Act says:
§3347 Exclusivity
(a) Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office,) for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless
(1) a statutory provision expressly (ie Dodd-Frank)
(A) authorizes the President, a court, or the head of an Executive department to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or
(B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or "(2) the President makes an appointment to fill a vacancy in such office during the recess of the Senate pursuant to clause 3 of section 2 of article II of the United States Constitution.
(b) Any statutory provision providing general authority to the head of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office) to delegate duties statutorily vested in that agency head to, or to reassign duties among, officers or employees of such Executive agency, is not a statutory provision to which subsection (a)(2) applies.
Now I am not a lawyer, but it seems that the Trump Administration is trying to claim that 3347(1)(b) means the President can ignore ANY statutory succession plan when he wants to. But to me, the key wording is ‘general authority’ here — which I take as meaning when the director is out sick or on vacation.
Dodd-Frank grants ‘specific authority’ for the appointment of an acting director.
Finding in favor of Trump would mean Congress cannot in any circumstance legislate the succession planning of an Executive agency that would not be subject to an override by a President. That would be quite a stretch and such an interpretation would render the “unless” in section 3347 meaningless.
On TRMS tonight, Sen Warren said they specifically discussed succession planning and wrote it into the bill on purpose to in effect trigger 3347(a)(1)(A),
I guess we will soon learn if the Trump court picks ignore plain reading of the law to do whatever Trump wants.