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Debra D'Agostino, founding partner of the Federal Practice Group, was interviewed by The Gazette on Senate checks and balances

Written by: Federal Practice Group
Written by: Federal Practice Group

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Senate Majority Leader Mitch McConnell (R-KY), and Sens. John Barrasso (R-WY), John Thune (R-SD), Todd Young (R-IN) and Joni Ernst (R-IA) arrive to speak after a Republican policy lunch on Capitol Hill in Washington, D.C. on January 29, 2019. (Joshua Roberts/Reuters)

U.S. Senate must safeguard its authority

The U.S. Constitution provides that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.” Historically, this is a power members of the Senate have vehemently guarded. So why aren’t they doing so now?

The Trump administration is pushing the limits of the Federal Vacancies Reform Act, which sets guidelines for filling vacant roles in government.

Many Iowans are at least somewhat aware of the constitutional questions surrounding Matt Whitaker’s appointment as acting U.S. attorney general. Legal scholars cautioned that because Whitaker never had been through Senate confirmation for a Cabinet position, he was not legally eligible to fill the acting role.

An announcement Monday by Agricultural Secretary Sonny Perdue provided a new reason for alarm.

Three nominees for high-ranking positions in the Department of Agriculture have been hired in those same areas, and given lesser titles that do not require Senate confirmation.

A nominee for undersecretary for food safety was named deputy undersecretary for civil rights; a second nominee for assistant secretary for civil rights was named deputy assistant secretary for civil rights; and a third nominee for undersecretary for research, education and economics was hired as deputy undersecretary for research, education and economics.

The law prohibits most people who have been nominated to fill a government position from performing those duties in an acting capacity.

Obviously aware of legal prohibitions, the USDA news release notes the three “while in their deputy roles as selected by Perdue … will not be serving in ‘acting’ capacities.” But such assurances might not be enough to match the spirit of the Vacancies Act.

“Even if the person is not officially designated as ‘acting’ by some piece of paper bequeathing them with an ‘acting’ title, this isn’t the end of the inquiry,” said Debra D’Agostino, a founding partner at the Federal Practice Group which focuses on federal employment. “If they are ‘performing that office’s duties,’ and have been nominated to fill the position, this runs afoul of the very purpose of the (Vacancies Act), which tries to prevent the president from skirting around the requirement to have Senate consent for nominees to carry out certain functions.”

The risk, she said, is the official’s decisions and actions will be voided if the law is violated.

In our view, such skirting has the potential of undermining a key check and balance within federal government.

We urge Iowa Republican Joni Ernst, as a majority member on the Senate Agriculture Committee, to hold the three nominations and demand an inquiry into these hirings.

It’s time for members of the Senate to once again act to protect their constitutional powers.

To speak to a federal employee attorney DC knows and respects, call the law offices of the Federal Practice Group now.

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