Podcasts about federal vacancies reform act

Brought to you by Trade Coffee! Get up to 3 bags free with any new Trade subscription at drinktrade.com/OA OA1117 - As Donald Trump's executive branch nominees continue to work their way through the confirmation process, we welcome Stanford Law professor Anne Joseph O'Connell to learn more about one of the most important legal protections we have against a fully imperial presidency. Professor O'Connell is one of the leading academic experts on the Federal Vacancies Reform Act, the legislation which Trump may or may not have intentionally circumvented in his last term to install acting heads of departments which would otherwise require Senate confirmation, and provides some essential background and context for what we might expect in his second term as his appointments continue to work their way through the confirmation process. Also covered: getting fired by Trump, defending pandas in court, Aileen Cannon and Clarence Thomas's fringe theory about the unconstitutionality of special counsels, and what Professor O'Connell learned from her time clerking for Ruth Bader Ginsburg.  “Actings,” Anne Joseph O'Connell, Columbia Law Review (2020) Prof. O'Connell's Stanford Law bio page Bluesky post with Prof. O'Connell's notice of termination from the Trump administration Check out the OA Linktree for all the places to go and things to do! To support the show (and lose the ads!), please pledge at patreon.com/law!

At the start of every presidential administration, the nominees for more than 1,000 civilian positions require Senate confirmation. A large number of those are in the Department of Defense, with confirmation responsibility going to the Senate Armed Services Committee (SASC). And whether it's a new administration or not, the committee processes dozens of civilian nominations for typical turnover reasons and thousands of military promotions as part of regular order.Arnold Punaro, author of the new book If Confirmed, knows the Senate confirmation process as well as or better than anyone alive. For half a century, he has been central to the confirmation process for military-related nominees--including more than two decades in the US Senate (as SASC Staff Director and in other roles) and more than 25 years since then as an official or unofficial confirmation adviser for the Executive Branch. He joined David Priess to talk about the Constitutional foundations of confirmation, the overall process as it has evolved from nomination through confirmation to appointment, recess appointments and their limits, the Federal Vacancies Reform Act and its quirks, how a presumption of confirmation can get nominees in trouble, why senatorial holds on nominees are getting out of control, which aspects of the confirmation process need to change, and more.Works mentioned in this episode:The book If Confirmed by Arnold PunaroChatter is a production of Lawfare and Goat Rodeo. This episode was produced and edited by Cara Shillenn of Goat Rodeo. Podcast theme by David Priess, featuring music created using Groovepad.See acast.com/privacy for privacy and opt-out information.Support this show http://supporter.acast.com/lawfare. Hosted on Acast. See acast.com/privacy for more information.

At the start of every presidential administration, the nominees for more than 1,000 civilian positions require Senate confirmation. A large number of those are in the Department of Defense, with confirmation responsibility going to the Senate Armed Services Committee (SASC). And whether it's a new administration or not, the committee processes dozens of civilian nominations for typical turnover reasons and thousands of military promotions as part of regular order.Arnold Punaro, author of the new book If Confirmed, as well as or better than anyone alive. For half a century, he has been central to the confirmation process for military-related nominees--including more than two decades in the US Senate (as SASC Staff Director and in other roles) and more than 25 years since then as an official or unofficial confirmation adviser for the Executive Branch. He joined David Priess to talk about the Constitutional foundations of confirmation, the overall process as it has evolved from nomination through confirmation to appointment, recess appointments and their limits, the Federal Vacancies Reform Act and its quirks, how a presumption of confirmation can get nominees in trouble, why senatorial holds on nominees are getting out of control, which aspects of the confirmation process need to change, and more.Works mentioned in this episode:The book If Confirmed by Arnold PunaroChatter is a production of Lawfare and Goat Rodeo. This episode was produced and edited by Cara Shillenn of Goat Rodeo. Podcast theme by David Priess, featuring music created using Groovepad.See acast.com/privacy for privacy and opt-out information. Hosted on Acast. See acast.com/privacy for more information.

Today's Story: Under Secretary Duties

The Federal Vacancies Reform Act (FVRA) is a federal statute permitting the President to appoint acting officials to fill vacancies that arise within federal departments and agencies when certain conditions are met. Last amended in 1998, the law represents a compromise of sorts between the Legislative and Executive branches, which share power regarding the appointment and confirmation of many federal officers. The FVRA’s use in recent years to fill vacancies within the Departments of Justice and Veterans Affairs and agencies such as the Consumer Financial Protection Bureau, among others, has been controversial. What are the limits of the FVRA? Is the FVRA constitutional as applied to the appointment of acting principal officers? Does it apply when an organic agency statute also provides for a more specific succession plan? Does it apply to vacancies created by firing rather than temporary absence, death or resignation? Who has standing to challenge an FVRA appointment or the actions of an FVRA appointee? How should the incoming Administration think about the use of FVRA?Featuring: -- Thomas Berry, Research Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute -- Stephen Migala, Attorney-Adviser, U.S. Department of State-- Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law, Stanford Law School-- Moderator: Brian Johnson, Partner, Alston & Bird

The very person in charge of Homeland Security is essentially "here illegally." The upside is, though, there is a one weird trick to undo everything he has done while overstaying his tenure! And by "trick" we mean a lengthy A. Torrez deep dive, so tune in! Before that, we talk about updates in the Flynn case and how the government is LYING about a Federal Rule. Links: DOJFlynnEnBancReply, 5 US Code § 3346 - Time limitation, 6 US Code § 551 - Transitional authorities, 22 US Code § 9685 - Transitional authorities, 5 US Code § 3348 - Vacant office, National Labor Relations Board v. SW General, The Vacancies Act: A Legal Overview, DHS Under Boss, Trump's New Acting AG Unconstitutional?, Acting Officers and the Federal Vacancies Reform Act, List of Bailfunds

The Federal Vacancies Reform Act impacts all federal employees - some more than others. Stanford Law faculty member and federal bureaucracy expert Anne Joseph O'Connell outlines what the Act is and why we should care, as well as how it impacts us.  Her bio: https://law.stanford.edu/directory/anne-joseph-oconnell/ A summary of the Act: https://fas.org/sgp/crs/misc/R44997.pdf

RadioPublic|LibSyn|YouTube|Patreon|Square Cash (Share code: Send $5, get $5!) It’s Super Tuesday! The question on everyone’s mind: What will Brit Hume be wearing? We’ll talk about Tuesday on Wednesday as usual. Meanwhile, please enjoy today’s KITM with David Waldman and Joan McCarter, from the safety of your own home: @#&%! James Lipton actor, academic, author, choreographer, interviewer, scriptwriter, lyricist, etc. has died at 93. Last night, MSNBC overflowed with eulogies for Chris Matthews, who isn’t dead, but was found buried under years of bad behavior.  Speaking of dying, Alan Grayson believed the Republican health care plan was: Don’t get sick. And if you do get sick, die quickly. Grayson was wrong —  the Republicans ended up having no plan at all. Pharmaceutical CEOs tried to give Trump a clue, but he avoids those like, well, you know. Thanks Obamacare, for making the coronavirus vaccine free… so far. The Supreme Court will hear a challenge to the Affordable Care Act this fall, before the election, and before another flu season. A million hospital beds might seem like a lot... too bad we have a lot less than that, and most are filled already. So, the healthcare industry is pushing Congress to pay for the cost of mandatory quarantines of patients who might have coronavirus. A judge rules that anti-immigrant loudmouth Ken Cuccinelli was unlawfully appointed to lead U.S. Citizenship and Immigration Services in violation of the Federal Vacancies Reform Act. Those are all pretty big words, so don’t expect much from Donald Trump. Roger Stone, sentenced to 40 months in Gotham State Penitentiary does deserve a little more, but co-conspirator Donald plans to give him less. You’d think someone would’ve seen this coming, and it turns out that it was the Founding Fathers. Today is a good day to give the boot to Koch Democrat Henry Cuellar and elect labor, immigration, and pro-choice supporter Jessica Cisneros.

The resignation of Kevin McAleenan has acting secretary of the Department of Homeland Security has brought up the question of acting officials and the Federal Vacancies Reform Act. The law places restrictions on how a president can fill openings temporarily. The Trump administration might be running afoul of that law. Attorney Debra D'Agostino of the Federal Practice Group joined Federal Drive with Tom Temin for an analysis.

ABOUT THIS EPISODE Steve Vladeck is the A. Dalton Cross Professor in Law at the University of Texas School of Law. He's also a prolific writer and CNN's Supreme Court analyst, and he's argued before the U.S. Supreme Court. He joined me to discuss the President's power to appoint individuals in an acting capacity in senior positions. This is a power that can be abused--and some would argue has been abused by President Trump. We discuss the power, and possible reforms that could limit abuse. LINKS Steve Vladeck's UT-Austin profile (https://law.utexas.edu/faculty/stephen-i-vladeck) "Trump is abusing his authority to name 'acting secretaries': Here's how Congress can stop him." (by Vladeck, for Slate) (https://slate.com/news-and-politics/2019/04/trump-acting-secretaries-dhs-fvra-senate-reform.html) "Trump relies on acting Cabinet officials more than most presidents. It's not an accident." (by Phillip Bump, for the Washington Post) (https://www.washingtonpost.com/politics/2019/04/08/trump-relies-acting-cabinet-officials-more-than-most-presidents-its-not-an-accident/) "How America got to 'zero tolerance' on immigration: The inside story," (by Jason Zengerle, for the New York Times) (https://www.nytimes.com/2019/07/16/magazine/immigration-department-of-homeland-security.html) "Supreme Court rules against Apple, as Kavanaugh sides with liberal Justices." (by Bill Chappell, for National Public Radio) (https://www.npr.org/2019/05/13/722831702/supreme-court-rules-against-apple-as-kavanaugh-sides-with-liberal-justices) The Federal Vacancies Reform Act (https://www.law.cornell.edu/uscode/text/5/3345) Special Guest: Stephen Vladeck.

The Federal Vacancies Reform Act — the law that determines who can serve as an acting political appointee, and for how long — has been put through its paces over the last two-and-a-half years. The number of vacancies in Senate-confirmed positions, the length of those vacancies, and the circumstances surrounding them have raised questions the framers of the law apparently didn't envision when Congress passed it in 1998. So, according to our next guest, Anne Joseph O'Connell, now's a good time for lawmakers to revisit the act. O'Connell is a lawyer and professor at Stanford University. She's also the primary consultant on a project for the Administrative Conference of the United States on acting officials and delegated authority. Hear her take on Federal Drive with Tom Temin.

“The U.S. military could suffer unacceptably high casualties and loss of major capital assets in its next conflict. It might struggle to win, or perhaps lose, a war against China or Russia. The United States is particularly at risk of being overwhelmed should its military be forced to fight on two or more fronts simultaneously.” Those are the sobering words from a report released Wednesday by the bipartisan National Defense Strategy Commission. Air Force veteran and Heritage Foundation senior communications manager John Cooper joins us to discuss.  Plus: Forget taking your kids to work--taking your parents to work is now what the cool kids are doing.We also cover these stories:--The Justice Department released a memo saying that the Matthew Whitaker appointment as attorney general is consistent with the Federal Vacancies Reform Act, and it cited an example from 1866 when an acting attorney general served without confirmation by the Senate.--Rep. Kevin McCarthy. R-Calif., will be the next GOP leader in the House after defeating Rep. Jim Jordan, R-Ohio, in a vote.--As election results continue to come in from some of the closest midterm races, Democrats are gaining. In fact, they’ve now picked up more House seats than they’ve ever picked up since Watergate.The Daily Signal podcast is available on Ricochet, iTunes, SoundCloud, Google Play, or Stitcher. All of our podcasts can be found at DailySignal.com/podcasts. If you like what you hear, please leave a review. You can also leave us a message at 202-608-6205 or write us at letters@dailysignal.com. Enjoy the show! See acast.com/privacy for privacy and opt-out information.

On Friday’s Mark Levin show, Apparently we have a constitutional crisis because President Trump is following the Federal Vacancies Reform Act and temporally appointed Matt Whitaker as acting Attorney General. The Left never seems bothered by the constitutional implications of things like runaway activist courts, a massive, entrenched federal bureaucracy, and President Obama’s efforts to work around Congress and federal law on immigration. Whitaker’s appointment as acting AG does not come close to a constitutional crisis. Also, Robert Mueller, who in effect is the most powerful prosecutor in America, has more power than any US Attorney and yet he hasn't been confirmed by the senate. This is why Mueller's appointment violates the appointments clause under article II of the Constitution. The Congress has no authority to prevent the President from firing any employee in the executive branch. Yet, the media continually refers to this as a "broken glass moment" which is in poor taste given we are upon the 80th anniversary of Kristallnacht (The Night of Broken Glass) when the Nazi's began executing Jews in Germany. Later, Senator Marco Rubio calls in to update us on the recount situation in Florida. In Broward County we're dealing with an Election Supervisor who has been caught destroying ballots in the past. We're not alleging that ballots are being changed, but we keep finding new ballots and the transparency of the process is not being followed. We have to make sure the work is completed and done correctly. Fortunately, Senate candidate Rick Scott (sitting Governor) just won a court decision compelling the Election Supervisor to comply with the law and its mandate for transparency. Learn more about your ad choices. Visit megaphone.fm/adchoices

On Friday’s Mark Levin show, Apparently we have a constitutional crisis because President Trump is following the Federal Vacancies Reform Act and temporally appointed Matt Whitaker as acting Attorney General. The Left never seems bothered by the constitutional implications of things like runaway activist courts, a massive, entrenched federal bureaucracy, and President Obama’s efforts to work around Congress and federal law on immigration. Whitaker’s appointment as acting AG does not come close to a constitutional crisis. Also, Robert Mueller, who in effect is the most powerful prosecutor in America, has more power than any US Attorney and yet he hasn't been confirmed by the senate. This is why Mueller's appointment violates the appointments clause under article II of the Constitution. The Congress has no authority to prevent the President from firing any employee in the executive branch. Yet, the media continually refers to this as a "broken glass moment" which is in poor taste given we are upon the 80th anniversary of Kristallnacht (The Night of Broken Glass) when the Nazi's began executing Jews in Germany. Later, Senator Marco Rubio calls in to update us on the recount situation in Florida. In Broward County we're dealing with an Election Supervisor who has been caught destroying ballots in the past. We're not alleging that ballots are being changed, but we keep finding new ballots and the transparency of the process is not being followed. We have to make sure the work is completed and done correctly. Fortunately, Senate candidate Rick Scott (sitting Governor) just won a court decision compelling the Election Supervisor to comply with the law and its mandate for transparency. Learn more about your ad choices. Visit megaphone.fm/adchoices

Today's episode is that rare Rapid Response Tuesday, necessitated by the persistent rumors that Donald Trump is about to fire Deputy Attorney General Rod Rosenstein.  Is it true?  How bad are things if it is?  And who is this mysterious G. Zachary Terwilliger?  You'll have to listen to know for sure! We begin by examining the New York Times reporting that predicated the efforts to force out Rosenstein.  Listen and you'll learn why is Andrew confident that these reports are false -- and get a rare "Randall Was Right" segment to boot! After that, we look to the statutory line of succession if Rosenstein is indeed fired, and we wind up at Noel Francisco and... Sideshow Zach?  How did THAT happen?  Bonus:  Is Francisco a Trump hack?  All signs point to... Then, we look to the statutory protections for Mueller even if Rosenstein is fired.  Will the entire Russia investigation be fed into a Fargo/Deadpool 2-style woodchipper? And, if all that wasn't enough, we also have a mini-deep dive into the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq.  Does it matter if Rosenstein was fired or if he resigned? Finally, we end -- at long last! -- with Thomas Takes the Bar Exam Question #94 regarding the Forest Service's new rules.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Lots!  Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri's Pizza; to attend, just RSVP on this Facebook link. Show Notes & Links This is the first New York Times hit piece on Rosenstein from Friday, 9/21, and this is the follow-up suggesting he would "resign." You can, of course, read the 25th Amendment's Section 4 for yourself; you'll quickly ascertain that it is, in fact, a 'clown horn' argument. The 28 U.S.C. § 508 sets forth the statutory line of succession for the DOJ. Here's the initial Senate confirmation vote on Francisco.  You can also read his "oopsie" letter to the Supreme Court below: This is the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq.  We first discussed it back in Episode 126. Finally, click here to read all about G. Zachary Terwilliger! Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  

The sudden departure of former Veterans Affairs Department Secretary David Shulkin revved up questions about the Federal Vacancies Reform Act of 1998. Did he quit or was he fired? How an administration can respond to a political opening depends on that question, and on how you interpret the Vacancies Act. For more on the Act, and why it might need reform, Federal News Radio's Eric White spoke with Project on Government Oversight policy associate Rebecca Jones for Federal Drive with Tom Temin.

On the day he was to resign, former CFPB Director Richard Cordray appointed his former Chief of Staff Leandra English to deputy director. The Dodd-Frank Act states that the deputy director is to “serve as acting Director in the absence or unavailability of the Director.” That day, President Trump appointed Office of Management and Budget Director Mick Mulvaney to serve as the acting director, under authority given to him in the Federal Vacancies Reform Act. On Monday, November 27, the CFPB opened with two directors claiming authority. Two days later, a federal judge denied Leandra English’s request for a restraining order to prevent Mick Mulvaney from serving as the agency’s head.Professor John C. Eastman will join us to discuss the CFPB and why this battle may not be over.Featuring:Prof. John C. Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Dale E. Fowler School of Law, Chapman University Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On the day he was to resign, former CFPB Director Richard Cordray appointed his former Chief of Staff Leandra English to deputy director. The Dodd-Frank Act states that the deputy director is to “serve as acting Director in the absence or unavailability of the Director.” That day, President Trump appointed Office of Management and Budget Director Mick Mulvaney to serve as the acting director, under authority given to him in the Federal Vacancies Reform Act. On Monday, November 27, the CFPB opened with two directors claiming authority. Two days later, a federal judge denied Leandra English’s request for a restraining order to prevent Mick Mulvaney from serving as the agency’s head.Professor John C. Eastman will join us to discuss the CFPB and why this battle may not be over.Featuring:Prof. John C. Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Dale E. Fowler School of Law, Chapman University Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Today's episode breaks down the recent kerfuffle over the simultaneous claims of Leandra English and Mick Mulvaney to be Acting Director of the Consumer Financial Protection Bureau (CFPB). First, we begin with an "Andrew Was Wrong (?)" segment that gives voice to an anti-Net Neutrality argument, a clarification on the Obama administration's antitrust policies, and a factual clarification on the Anheuser-Busch/InBev merger. After the main segment, Andrew and Thomas answer a fun question about speeding and evidence AND tease the upcoming Law'd Awful Movies #13. Finally, we end with an all-new Thomas Takes the Bar Exam Question #52 about the constitutionality of a cigarette tax and accompanying program.  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! Have us on your show! Show Notes & Links For Jaqen and others, we recommend OA22:  "Libertarianism is Bad and You Should Feel Bad." Here is the lawsuit filed by Leandra English; and this is the memorandum supporting her motion for TRO. On the other side, you can read the memorandum issued by Asst. Attorney General Steven A. Engel and the companion memo authored by CFPB Counsel Mary McLeod. The statutes we cited during the show are two sections of the Federal Vacancies Reform Act, 5 U.S.C. § 3345 and 5 U.S.C. § 3347, as well as a portion of Dodd-Frank, 12 U.S.C. § 5491. Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com  

In this week’s episode, Professors Chesney and Vladeck focus on two subjects: the extradition of Ali Damache and what it might portend for Trump administration counterterrorism policy, and the slate of issues surrounding the potential...

On March 21, 2017, the Supreme Court decided National Labor Relations Board v. SW General, Inc. SW General, Inc. provides ambulance services to hospitals in Arizona. A union had negotiated longevity pay for SW General’s emergency medical technicians, nurses, and firefighters. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the National Labor Relations Board (NLRB), which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, but SW General contended that the NLRB complaint was invalid because the Acting General Counsel of the NLRB at the time, Lafe Solomon, had been serving in violation of the Federal Vacancies Reform Act (FVRA). President Barack Obama had nominated Solomon--who had then been serving as Acting General Counsel after the General Counsel had resigned--to serve as General Counsel, but the Senate had not acted on the nomination. The president had ultimately withdrawn the nomination and replaced it with that of Richard Griffin, who was confirmed. In the intervening period--including when the NLRB complaint had issued against SW General--Solomon had continued to serve as Acting General Counsel. SW General argued that under the FVRA, Solomon became ineligible to hold the Acting position once nominated by the president to the General Counsel position. The U.S. Court of Appeals for the D.C. Circuit agreed and vacated the NLRB’s enforcement order. The NLRB then obtained a writ of certiorari from the Supreme Court. -- By a vote of 6-2, the Supreme Court affirmed the judgment of the D.C. Circuit. In an opinion by Chief Justice Roberts, the Court held that (1) subsection (b)(1) of the Federal Vacancies Reform Act of 1998, which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applies to anyone performing acting service under the FVRA and is not limited to first assistants performing acting service under Subsection (a)(1); and (2) Subsection (b)(1) prohibited Lafe Solomon from continuing his service as acting general counsel of the National Labor Relations Board once the president nominated him to fill the position permanently. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, and Kagan. Justice Thomas filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. -- To discuss the case, we have Kristin Hickman, who is the Distinguished McKnight University Professor, Harlan Albert Rogers Professor of Law, and Associate Director, Corporate Institute at the University of Minnesota Law School.

On November 7, the Supreme Court heared oral argument in National Labor Relations Board v. SW General, Inc., which deals with presidential appointment powers and centers on a dispute over provisions of the Federal Vacancies Reform Act of 1998 (FVRA). The case challenges a 2013 National Labor Relations Board (NLRB) determination of unfair labor practices at an Arizona ambulance company, SW General. SW General contends that under the FVRA, President Obama's appointment of an acting general counsel, Lafe Solomon, for an NLRB vacancy was illegal, and therefore the case against them should be dismissed. -- The U.S. Court of Appeals for the District of Columbia Circuit agreed that the acting general counsel Solomon's tenure violated the FVRA and invalidated the decision. The federal government now seeks relief from the High Court, based on alternative statutory interpretation that the President's appointment was fully permissible under the law. -- Featuring: John Elwood, Partner, Vinson & Elkins LLP.