Once upon a time, Joe Biden touted himself as the return of "the rule of law, our Constitution and the will of the people" after the whim-driven behavior of his erratic predecessor. Well, every politician needs a marketing hook, but like many of his colleagues Biden doesn't take his own P.R. very seriously. As have other officeholders, the current president quickly started playing fast and loose with legality, and the Government Accountability Office (GAO) says those habits continue to this day with some administration appointees exercising power in violation of the law.
"Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 (Vacancies Act), at the Federal Labor Relations Authority [FLRA], with respect to the General Counsel position," the GAO noted on February 8. "Specifically, we are reporting that the service of Charlotte A. Dye as Acting General Counsel from November 16, 2021, through the present day is in violation of the Act."
"The Vacancies Act permits acting service for 210 days after a vacancy occurs, during the pendency of a first or second nomination for the office, and for additional 210-day periods after the rejection, return or withdrawal of the first or second nomination," the GAO explains in an attached letter addressed to the president. "Further, in presidential transition years, the Vacancies Act allows for an additional 300 days of eligible acting service from the date of inauguration."
Basically, the FLRA General Counsel spot has been vacant since 2017 with first Trump and then Biden cycling "acting" appointees through the role with no regard for time limits and without bothering with required Senate confirmation. And it doesn't stop there. That same day, the GAO called out the administration for allowing Allison Randall to continue as Acting Director of the Justice Department's Office on Violence Against Women, Tae D. Johnson to serve as Acting Director of Immigration and Customs Enforcement, Deidre Harrison as Acting Controller in the Office of Management and Budget's Office of Federal Financial Management, and three separate people to serve as Acting Assistant Administrator of USAID's Bureau for Asia, all in violation of the same law.
The Biden administration has responded to the GAO's objections in different ways. As of February 21, Dye, Randall, and Harrison remain in place as "acting" officials no matter what the government watchdog says.
In the case of Johnson, the administration changed his title to "Senior Official Performing the Duties of the Director" of Immigration and Customs Enforcement. That sounds like a screw-you response to the GAO, but the agency is apparently OK with it. It already signed off on new business cards as a resolution to expired acting assistant administrators of USAID's Bureau for Asia. "Because no one is currently using the acting title for this position, there is no continuing violation," the GAO commented.
Well, that was an easy fix. You should look forward to many future cable news interviews of this or that "Senior Official Exercising Duties That Require Senate Confirmation But To Hell With That."
To be fair, filling some of these offices the right way is challenging. The Senate last confirmed a director for ICE in 2013. The FLRA General Counsel role has similarly gone unfilled for years. The positions remained empty through a Republican president and Senate, and a Democratic president and Senate, so there's no obvious magic partisan combination that gets nominees confirmed.
But rather than ignore the process and continue the presidency's slide towards elective monarchy, perhaps presidents and their allies in Congress might consider whether something about these offices and their respective nominees should be adjusted to make them more palatable to lawmakers. After all, there are real questions about the legitimacy of actions taken by officials who exercise power in defiance of the law.
"Interested parties could file lawsuits against the agencies, looking to invalidate decisions and policies issued by those serving improperly," comments Eric Katz of Government Executive.
This isn't the first time Biden's actions have raised concerns about legality. The president himself admitted that his administration's national eviction moratorium was "not likely to pass constitutional muster" but said that "by the time it gets litigated, it will probably give some additional time." So, he went forward with a policy that he believed was unconstitutional in the hope that the courts would be slow to knock it down.
So much for the rule of law.
Then there's the pressure brought by the White House and its congressional allies on (often sympathetic) social media executives to suppress criticism and disapproved speech. "The Biden administration has castigated Facebook for hosting COVID-19 misinformation before abruptly softening its criticism," wrote the Cato Institute's Will Duffield. "While Facebook forcefully defended its existing misinformation mitigation measures, the episode illustrates how government can circumvent the First Amendment by bullying private middlemen."
Ouch for the Constitution.
And then there's the current president's apparent envy of his predecessor's collection of classified documents, taken home and stored in random places in violation of the law. "President Biden may have violated the Presidential Records Act, Espionage Act, and other federal laws," Neama Rahmani, former federal prosecutor and president of West Coast Trial Lawyers, told Newsweek.
What a refreshing departure from Donald Trump's contempt for legal concerns, right?
The fact of the matter is that Joe Biden is all too much like not only his predecessor, but the guy before him, and the whole institution going back generations. White House occupants become enraged when the common people defy their will even as they come to see their whims as above any restraints imposed by the Constitution, law, or simple decency on their exercise of power. Each new chief executive seems determined to outdo those who have gone before in doing whatever they please without regard for legality.
Keeping "acting" officials in office long after the law allows them to exercise power is far from the most egregious violation committed by President Biden or his predecessors. But it's an all-too-common excess, and a warning sign of what we can expect in the future.
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