Matthew Kahn on Lawfare notes that a number of “acting officers” in government are approaching the limits of their authority under the law. What happens next?
So where does that leave the acting officers who as of Nov. 18 (the 300th day of the Trump administration) have begun to fall out of compliance with the [Federal Vacancies Reform Act]?
The FVRA does not provide a mechanism for removing officers who continue to act beyond their statutorily authorized period. Though the statute requires the comptroller general to report such cases to Congress, which may employ oversight tools to bring the executive branch into compliance, there is no guarantee of efficiency or effectiveness.
If the president does not nominate officers to those positions, then any actions taken after the 300 days of vacancy have no force or effect. The Supreme Court intonated in National Labor Relations Board v. SW General that such actions are “void ab initio,” or “null from the beginning.” (Courts cannot allow void acts to proceed under harmless error doctrine, as they can with “voidable” acts.) A party who has standing to challenge an action taken by a non-compliant officer might argue that the action was void. But in the absence of clearer enforcement language, it may take further litigation to understand how the FVRA applies to the uncharted territory we’ve entered.
Sounds like chaos to me. Or, as they say in the tennis world, a whole mess of unforced errors by the Administration.
Again.
