The Vacancies Act - How Trump Has Used and Abused It, and Might Again

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is your mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. The people have the power to make this life free and beautiful. To make this live a wonderful adventure.

0:00:38 Clip: I still believe with all my heart, America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong. Country is always worth it.

0:00:57 Thomas: Hello and welcome to Opening Arguments. This is episode one thousand one hundred and seventeen. I'm Thomas Smith. That over there is real life attorney Matt Cameron. How you doing?

0:01:05 Matt: Thomas, I'm great. I'm about to learn about something that I really don't know anything about, so that's one of my favorite things to do.

0:01:09 Thomas: Anything about I doubt that's true. You probably know something about it.

0:01:13 Matt: I do actually know something about it.

0:01:15 Thomas: It's the long promised vacancies act deep dive that we've been needing to do for a while.

0:01:21 Matt: And I found we've got a great guest for it. I actually was looking into this back when Trump was threatening to do recess appointments for his cabinet members all the way back like five years ago when Matt Gaetz was going to be the attorney general, if I remember. Got Professor Ann Joseph O'Connell from Stanford, and she's going to explain all this for us. Even more relevant. We're just fired 12 of his inspectors general. Conversation directly plays into how they're going to Be replaced. I already see that on Blue Sky that she's concerned about how that might play out, because as we're going to talk about, this is a powerful way for an imperial presidency to take form if we don't have protections like the Federal Vacancies Reform Act. Technical and as administrative as it might sound, it's super interesting, and it's a really important part of our system.

0:01:57 Thomas: Worth finding an expert on that. Cause I'm sure in the spare time you don't have Matt boning, the vacancies act, probably not the best use of it. So I'm glad we got an expert here. Also as, you know yeah, the firing of the the of eyes g of the eyes g the inspectors general uh happen unfortunately after we recorded with her otherwise I'm sure we would have uh had a lot to talk to her about with that but it does inform that as you say so looking this break we'll get on with Professor Ann Joseph O'Connell. If you'd like to support the show, and you should, because we I've just become more disillusioned with mainstream media every day. I feel like I'm turning into a crazy person, Matt. But the way they cover stuff is really, really concerning all the time now. If you'd support independent journalism and accurate coverage, please support support us at patreon.com/law.

0:02:44 Matt: Trying to repeal birthright citizenship is constitutionally contentious? That's what the Wall Street Journal thinks. Contentious.

0:02:48 Thomas: That's the latest thing. Really concerning because they can just say, well, you know, there's a wealth of argument on the other side. There's literature. And then you're like, well what, what is it? Well, one guy wrote a blog once. Okay, two sides. It'S terrible.

0:02:57 Matt: Is not. And that's actually something we're going to talk to Professor O 'Connell about as well, about the Eileen Cannon-Clarence Thomas special counsel theory about how that's developing a so -called other side and what we do with that. So all kinds of good stuff in this conversation.

0:03:14 Thomas: Well, if you would like to support not enabling that both sides bullcrap please support us at patreon.com/law all right after this break we'll get to it all

0:03:26 Matt: Guest today is Ann Joseph O'Connell, who's a lawyer and social scientist who teaches at Stanford and was recently fired by the Trump administration. That's, I guess, your most recent credential.

0:03:33 Thomas: Congrats. For a job or what you need?

0:03:37 Anne: You. It was actually, it wasn't. It was unpaid, right. It's a part -time, part role?

0:03:40 Thomas: I don't know if that makes it worse or better oh yeah

0:03:44 Anne: Years ago, President Biden appointed me to the Council of the Administrative Conference of the United States, which is a nonpartisan entity dedicated to improving agency practices. So not big partisan, not big controversial agency. And I had a three year term, but I knew that I could be fired. And indeed, President Biden fired someone from the the ACUS Council early on in his term, someone who President Trump had put in sort of in the last minute. I was not a last minute appointment. But on Tuesday afternoon, thinking, well, maybe I've escaped being fired, because it over 24 hours since inauguration, I received an email, a very direct, I think is how I would describe it, email, which I did post on Blue Sky, saying that on on behalf of President Trump, I was terminated immediately from the council. Now, what I thought was interesting is that there are a number of people that President Biden put on the council for ACUS, but only two of us were fired. Both women were fired, but the others remain. Now I have a commission from President Biden signed by Secretary Blinken, like Marjorie V. Madison. I have my own commission, but I also now printed out my firing email. Quite sure sure what to do with them. My commission is in a poster roll in my closet, but maybe I'll post the firing email.

0:05:03 Matt: Those could be framed together, maybe. That might make a nice package.

0:05:06 Thomas: Might fetch you something on eBay. I don't know. I

0:05:09 Matt: What that role? I don't think I've heard of that council.

0:05:11 Anne: So it's a weird entity that Justice Scalia actually once headed long ago, and dedicated to improving agency practices. And there's a Senate -confirmed appointee at the head, who fired. They have a lot of academics, a lot of government attorneys, a Lot of attorneys from NGOs and private practice from across the ideological spectrum, the idea is to get recommendations that are nonpartisan that are just good governance recommendations. And so some of their recent recommendations have covered, you know, better transparency in agency practices, improving agency adjudications, that sort of thing.

0:05:53 Thomas: Could see why they don't have any use for you then. I get it. Like we don't want any of those things.

0:05:55 Anne: Would think we're the good version, right?

0:05:59 Matt: Yeah.

0:05:59 Anne: The good version of government efficiency.

0:06:02 Matt: We especially wanted to talk to you today because of your work on the Vacancies Act, which You've been leading on these things from what I can see. And the Vacencies Act was in the news a lot during the Trump administration the first time around, and we're fully expecting it's going to be again. So that's one of the main things we want to talk about today. But I guess just before anything else, I'd like to know how you got interested in administrative law, how you went that direction.

0:06:20 Anne: I was always interested in the government. I grew up outside of Washington, D.C. in Fairfax, Virginia. Around us who worked in the department, I thought, wow, those are good jobs. And those people were doing interesting things. So even though I was a child during the Reagan administration, and President Reagan liked to quip that the seven most feared words in the English language where I'm here from the government and here to help, I felt the exact opposite. I thought the government did good things. And I started working for the government in high school for the U.S. Army. This is also part of the Reagan years. They were trying to find Americans who are good in science and math. And I just kept working for different government agencies all through college and college. When I got to law school, it was definitely a subject I was interested in. Now, in terms of practice, I was also really interested in economics. And I had done this PhD, which was partly in economics, so I was also interested in antitrust. That did not have a history back to my childhood.

0:07:22 Thomas: I was playing Monopoly with my parents and I was like god this should not stand oh

0:07:27 Anne: And but then I got jobs. Before the the November 2000 election. I was clerking and I had applied to the honors program at the Department of Justice because I believed that working for the government was a good thing to do and I wanted to do it. And I received two offers, one in the federal programs branch in the civil division, which defends executive branch actions on statutory and constitutional grounds, and one in the antitrust division. And I thought, and they gave me two weeks to decide. And I thought okay, if Bush wins, I'll go to federal programs. And if Gore wins, I'll to antitrust because then the Republicans were far less active in antitrus work. Would say in Trump's first term, he was, you know, more active than the typical Republican in antitress. I thought oh, I have two weeks. Not a problem. I'm going to know who won the election. But of course I didn't. And so I had to choose in an environment of some informational uncertainty. And I went with federal programs. Was great. I was at federal programs for about two years and I loved it. Sort of cemented the idea that when I went into law school teaching, that I was more on the administrative law side than on the antitrust side. But if the election had turned out differently, I would know nothing about the Federal Legacies Reform

0:08:44 Anne: Act.

0:08:44 Matt: That's the way things work. You must have gotten a really good sort of top -down, comprehensive view of how government agencies work, how the bureaucracy works pretty early on in your career then by doing that.

0:08:53 Thomas: Write that down because I don'T know if THAT'S gonna still apply in a few years I should maybe just maybe jot down some notes in case we need to rebuild it yeah

0:08:59 Anne: Hope

0:08:59 Matt: For history. Yeah.

0:09:02 Anne: So. I hope so.

0:09:04 Matt: Was your impression coming in? Because again, I'm just fascinated because again, as an immigration attorney, I am working within a couple of different silos within the federal government, but it is just incomprehensibly vast to me. I don't understand how big it is and all the different wings and all of the different administrative agencies and all additional administrative courts. Did you take away from that experience in those years?

0:09:21 Anne: Even in the same agency, right, I worked for the U.S. Army at Fort Belvoir for seven summers doing research work in a health physics laboratory looking for ways ways to detect landmines, basically. Then after college, I worked for the inspector general of the defense department for several months. And dann, after the first year of law school, I worked with the general counsel of the Defense Department. And that really was a trajectory because Fort Belvoir is different than the E -ring, where the general council, who's the equivalent of a four -star general sits. Just the variation within an agency is incredible. And then some years back on the more academic research side, I was working on this piece called Bureaucracy at the Boundary, where I was interested in agencies that didn't even fit in to the kind of classic executive branch, right? They were partly state, partly federal, right, right? They were set up by interstate compacts or they were partly federal and partly international or they, yeah, exactly.

0:10:22 Matt: You mean like Amtrak, that kind of thing? Okay.

0:10:24 Anne: Well, Amtrak is an example of like partly public, partly private. Yeah. Fannie Mae and Freddie Mac, those types of entities.

0:10:30 Matt: I guess I was curious about your work at the DOJ you're saying coming out of law school. I guess, I was trying to get my head around what that was.

0:10:35 Anne: So, I mean, it was interesting because I started just several weeks after September 11th. So a of what I did was related to responses to September 11. And I worked on an anti -terrorism task force that was involved in financial actions. So I was part of a team that defended the US government's freezing of financial assets of various entities with alleged ties to terrorist organizations. So the main agency that does that is the Office of Foreign Asset Control in the Treasury Department. There were a lot of challenges to that. So you freeze the assets, say, of a Muslim charity with alleged ties to terrorism, and it's being done on a classified record because the Patriot Act allowed it. But it was still getting reviewed as as a traditional agency action under the Administrative Procedure Act. So what does that mean? That means, know, you did the agency act arbitrarily and capriciously? And if it did, that would be a problem. You don't really know what they did, because you, if you're the challenger, because, uh, have only an unclassified version of the record. So there were really interesting constitutional questions and statutory questions. Um, and so that was part part of what I did. And you could say there was some controversy to that work. I mean, I would say that my personal opinion is that sometimes you need a classified record for national security reasons, but it seems, again, this is just my personal view, not DOJ's view, that you might want to up the standard. Like if you're going to review the agency action and the challenger can't see the record, you might want a preponderance of evidence as

0:12:10 Anne: Opposed to an arbitrary and capricious standard.

0:12:11 Matt: I would hope so.

0:12:12 Anne: Some of the stuff I did was non -controversial and could come up in any administration. So I defended the pandas at the National Zoo. It turned out that, well, they were valuable for public relations.

0:12:20 Thomas: They kill a guy or what bank fraud

0:12:20 Matt: Do they do?

0:12:26 Anne: So a family in the Midwest bought their 17 -year -old son a that that was manufactured by a Chinese gun company for his birthday. And the gun malfunctioned and killed their child. And they brought a tort suit in state court against the Chinese gun company, the company of which did not appear. And this state court judge, in their words, kind of pierced the veil, the corporate veil, and made a $10 million default judgment against China, the country itself. And so

0:12:26 Thomas: You know Wow.

0:13:01 Anne: This lawyer by the plaintiff's family searched around for Chinese assets in the United States to attach. This gets tricky under the Foreign Sovereign Immunities Act. Have to look for commercial assets. And so they came upon the pandas. And so they threatened to attach the pandas at the National Zoo, as folks in the D .C. area know that pandas that National zoo has are on loan. They're not given to us by China. A leasehold. Very interesting. And so the government, even though they were a kind of an official party in the litigation under statute, is allowed to submit what is called a statement of interest. So that's something I worked on, right? Declaring that the pandas were not commercial assets. It was interesting because I had to look at sales at the National Zoo, right, doesn't cost anything to go to the National zoo, but, you know, stuffed panda sales went up and hot dog sales went up and what percentage of that can get attributed to the pandas that they had then. So that was something I worked on at the federal programs branch. Worked there was some litigation over forced prisoners of war in World War II in Japan. A bunch of litigation at the time involving that and there was an associated FOIA, which is sort of this dreaded statute, but like the Federal Vacancies Reform Act, a statute I also really like. So it was a pretty high profile FOIA case. And then there were these constitutional challenges to something called the Coal Act, where these retired coal miners were promised by Congress by enacted law to have certain health benefits that were paid for by coal companies. And there were just like like a series at that time, a sort of series of constitutional challenges to that statue. But I loved, like I loved working at federal programs.

0:14:44 Matt: Sounds like something different every day.

0:14:46 Thomas: Yeah. Really interesting.

0:14:46 Anne: It was. Yeah. And it was crazy because I knew nothing, especially I went to Yale Law School, right? In terms, I knew more about the government from my time in high school, in essence, as opposed to administrative law doctrine. Doctrine.

0:15:01 Anne: And come in and there's a complaint on your chair when you're starting and you're the main lawyer.

0:15:07 Thomas: Signed by a panda. And you're like, what do I do here?

0:15:09 Anne: Exactly.

0:15:09 Thomas: I don't know. Paw print on it.

0:15:10 Anne: I'm like, wow, I took civil procedure from a guy who threw the rules of civil procedure in the trash. And I'm trying to figure out exactly how rule 12 works. Works.

0:15:20 Matt: That time, of course, right after September 11th, we're starting to talk about the largest federal reorganization pretty much of any government probably in human history, with, of coarse, the Department of Homeland Security and the complete overhaul of government in 2003. you kind of aware of those conversations or was that going on in your office?

0:15:25 Anne: That's right. No, I mean, we were focused on litigation. So not at the time. Interestingly, I taught when I started teaching, I would teach the creation of the Department of Homeland Security because it was interesting to me at the start of administrative law, like how agencies get created. And the Washington Post did this wonderful series kind of looking looking back at the creation of the Department of Homeland Security, and there were those five guys that were called the G5 that sat in some room and with whiteboards, wrote down agencies they wanted to put in. And then they were like, oh, someone from the energy department had to tell them, oh no, there's nuclear capacity there. You can't move that.

0:16:07 Matt: I've heard about that. We don't want to put immigration judges and the prosecutors in the same department, that kind of thing. Really are coming from a really solid background of trying to understand these systems and bureaucracies and again, I'm an administrative lawyer myself, so I could probably talk about this for quite a while. But we want to talk about particularly the Vacancies Act because doesn't sound like the most exciting topic maybe for everybody, but it was so instrumental in how Trump was able to get so much done or not get things done, as it turned out sometimes, his first term. And I've been wondering about how he might be expected to use it in a second. So maybe we could just start talking about the Vacencies Act, maybe a little bit of the history and why it's so important for these cabinet -level appointments.

0:16:50 Anne: Have to be careful here because I could drone on and people will fall asleep. So to put it briefly, this country has always had vacancies acts all the way back to the late 1700s. The latest statute was 1998 called the Federal Vacancies Reform Act. Some people call it the FERA. Some People call it the VRA, which confuses a bunch of people because the voting folks are like, no, you cannot use that acronym. I just call it the Vacancies Act. And latest version does a variety of things, but it basically circumscribes who can be an acting official in federal agencies and how long they can serve. It expanded on the first, who could be an actor, and on the second, second, it constrained the time limits in the sense that the previous Vacancies Act had shorter time limits, but they were disobeyed and there was no enforcement consequences. So the time limits were lengthened a bit, but there was a big enforcement consequence that if you had someone who was not someone who could serve as a proper acting or they were serving in violation, you had someone who was a proper actor, but you had a person who was serving in a proper act, you you could find an action tied to that improper service, you could get that action struck down.

0:18:10 Matt: That's a big sanction. So you give us some examples before Trump of maybe somebody who served too long, whether accidentally or otherwise?

0:18:17 Anne: It wasn't accidentally.

0:18:18 Matt: I wouldn't think so.

0:18:18 Anne: I think administrations knew there was no enforcement consequence. And so just sort of many examples across Democratic and Republican administrations of people who would just serve way past the time limit. GAO had studies of people serving in violation, but there was vast, vast violations of the time limits.

0:18:35 Matt: Because there's no reason not to. There's no sanction, right?

0:18:39 Anne: There was no, there was no sanction, but it's a big deal because why you're properly serving under the Vacancies act, you the acting officials have not been confirmed by the Senate to what is called a PAS role of world nominated by the president confirmed by this Senate. Those people who haven't been confirmed any role have the same formal authority as someone who had been confirmed conformed, the role. And that's a big deal because you've circumvented the process.

0:19:07 Matt: Famously said, I like actings, right, and you wrote a paper called Actings, which I found to be very helpful.

0:19:11 Thomas: Like actings.

0:19:12 Anne: He said, what did he say? He said I have acting and my actings are doing really great. I sort of like acting. It gives me more flexibility. Now I should say just said aloud what had been the quiet part. I mean, I started getting interested in actings not when everyone else was getting interested in acting. Usually I'm not before the curve, but here I was before the curb. And President Obama in the last two years of his administration had a Republican Senate and he put forward far fewer nominees to these agency jobs, but stuff was happening. And how was stuff happening? Stuff was happening because he was putting people in under the Vacancies Act, people like Vanita Gupta, who the Republicans never would have confirmed. To be head of civil rights at the Justice Department. And she comes in as the principal deputy assistant attorney general for civil rights and kind of gets to carry out the full authority of the role.

0:19:16 Matt: And when Trump says that he likes acting, I guess just to really spell this out, what is the benefit for him for people who are never actually formally appointed by the Senate? I think it might be important just to say it.

0:20:19 Anne: I think it's that you get people in who the Senate might not confirm, and you get People in, even if the Senate Might confirm them, you get them in more quickly. To give a sense, I said, you know, President Obama loved actings. But I think what really made President Trump different is that he really emphasized acting leaders at the very top. So I had this data that I was collecting on cabinet secretaries, right, the very tops of the heads of our 15 cabinet departments. And of course, that number changes over time because we get the Department of Homeland Security in 2003. if you look at the number of days that there there was an acting secretary or no one, that percentage really is different between the Obama administration and the Trump administration. So in President Obama's administration, that figure is a little under 3%, whereas in the Trump Administration, it's around 10%. So you get a big jump. And for Biden, it is over 7%. Yeah.

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0:23:00 Matt: That there was a very long time, possibly the majority of the Trump term, that almost all of his immigration heads were not appointed.

0:23:07 Anne: I should say those figures are just for That would just include the Secretary of Homeland Security. But that was a really long time too, right? Nielsen gets pushed out in April of 2019, if I remember correctly. Then we have a series of people. Now, these people were not serving under the Vacancies Act. And they messed up under the Homeland Security Act, which we can talk about. And an asylum order got struck down. But yeah, yeah, you had Kevin McAleen and then had Chad Wolf and yes.

0:23:36 Matt: Then, of course, the most famous example of somebody who was installed at USCIS, I believe, right? He was installed at UNCIS unlawfully, and I think he had a couple of his orders. I think that maybe that's what you're referencing there, the asylum orders.

0:23:45 Anne: That's what I'm referencing. Yes, that is what I am referencing.

0:23:47 Matt: And that one was so clumsy, it seemed to me, and just the way they botched it. But, you and think that was just clumsiness or they just didn't care or how did that happen?

0:23:50 Anne: Well, I think the biggest mistake was actually for the secretary. So when Nielsen gets pushed out, it was one of my most most popular tweets when I was still on Twitter or, right, X, whatever it's called now, Trump tweets, you is out, McAleenan's my guy. And I was like, there's actually a statute when the Department of Homeland Security was created that if there's a deputy secretary or an undersecretary for management, that person has to be the acting. And

0:24:27 Matt: Because McLennan was CBP at the time, right? I have that wrong?

0:24:29 Anne: I don't, I know there was no deputy, but there was, there was no deputy secretary. That person had left a year before in 2018. But there was a career person, Claire Grady, I think was her name, who was sitting as undersecretary of management. And I was like, hmm, I think it has to be Claire. And then soon after that, they kind of, like Nielsen doesn't leave immediately, right? Because they have to figure out the succession orders. They get rid of the undersecretary of management and they change the succession orders, right, to get McAleen. But they don't dot the I's and cross the T's. So they change one piece of paper, but they don'T actually change another piece of paper. And it takes months. I think it's a reporter from the National Law Journal who, along with some staff members on the the Democratic side on the Hill, on the House side on oversight, figured it out that there had actually been this paperwork mistake. That kind of created the biggest issue. I mean, the issue with Cuccinelli was he could have just been kind of slotted in as the principal, you know, as the deputy to the director of USCIS. What they did instead, and I'm not exactly sure why, They created a new position for him, like the principal deputy of

0:24:37 Matt: I see. That's right. That's fine.

0:25:46 Anne: USCIS. And that was litigated. And Randy Moss, who interestingly was heading office of legal counsel at the Justice Department when the Vacancies Act was enacted, and like did this Q &A, which everyone consults still decades later about the Vacencies Act. He now was on the district court of DC. He was not fond of this move. And so he didn't resolve the big issue, like, can you put first assistants in after a vacancy? That has happened in Democratic and Republican administrations. Said he didn'T like it, and he didn' t think it was permitted, but he wasn' t actually going to resolve the question. But he definitely said, you can't create a new first assistant role after the vacancy. And that was never appealed.

0:26:10 Matt: I remember that. Yeah ,I guess at the timem I remember thinking that this seemed like they were engaging in this like extended thinking three or four moves ahead kind of chess game to get the right people into the right places. But it really was just what it looked like.

0:26:39 Anne: Because they could have they could have got they could've done everything they wanted to do like they could have gotten McAleenan in by making sure they had changed like a certain appendix to the succession order that's kind of what went wrong that they made the change on the cover page but that page referred to something at the end and they didn't change it at the ends so they could have fixed you know they could have carefully done that and gotten gotten McAleenan in as a acting secretary.

0:27:08 Matt: Only there was some kind of counsel to advise them on how to manage these things.

0:27:11 Anne: And with Cuccinelli, I think he could have just been put into the deputy job. Now, maybe the person in the deputy jobs had some sort of protection or there was some policy where they couldn't get CuccINElli in quick enough. It seems like CuccINelli's desire maybe to be the principal deputy is what got them in trouble. And then even later on, he became, he claimed he was the acting deputy secretary, he, even his Twitter handle was like said acting deputy Secretary, but he wasn't really officially the acting Deputy Secretary because the time limits had run out because the deputy secretary had left in 2018.

0:27:49 Matt: So it really was just incompetence. It was just, wow.

0:27:51 Anne: Was a mess. Yes.

0:27:52 Matt: Yeah. So I guess just to help people play this out about how this might work, I've been thinking about how all this, because again, this is, I know it seems to probably a lot of listeners, like this minutia of federal government and bureaucracy, but it really matters because you can get these people into places, as you were saying, that they wouldn't have been nominated for, would have been confirmed for, and that the the Senate had no say in, and you can keep them there for quite a while. So let's just run out of scenario very quickly. The moment, former Trump defense attorney Emil Bove is, now as the acting deputy of DOJ, and he just issued a pretty scary memo that we talked about regarding possible prosecution of state and local officials for getting in the way of immigration. Todd Blanch, former defense attorney, and Pam Bondi both have to face confirmation. And sure.

0:28:13 Anne: Hello. Yeah. Yeah,

0:28:33 Thomas: That, he has to confirm the judge, the jury, and the bailiff from the trial. And he's got everybody. He's got to get the gang back together.

0:28:40 Anne: You can serve about two and a half years in an acting title. So how it works is at the start of an administration, you get 300 days. So if you had a vacancy in the middle, you would only get an initial 210 days. But at the star, you have your 300 days, uh, then if there's a nomination that's submitted, admitted, you can serve during the pendency of that entire nomination. And when that nomination fails, and by mean fail, I don't mean voted down because that almost never happens. It's usually returned. Get an additional 210 days after the return. Then you can keep serving during the pendancy of a second nomination, right? And these nominations can pen for months. Then if the second nomination is returned, you get a final 210 days. So that, depending of course on Senate calendar, is about two and a half years. Now there's some crazy minutiae. There's actually some debate about when does the 300 -day end. The GAO recently changed its mind on whether it was November 17th or one day different. And the Office of Legal Counsel has a footnote in one of their latest opinions about what day, the 300 -day is. There's also another, this is like disputes that six of us care about.

0:29:59 Anne: I mean, it will matter to litigants, right? I assume the Trump administration will play it safe and take the earlier day if they don't have people in to kind of change their title to senior official performing the duties if they don'thave a nomination pending. But there's another dispute on this whole time limit is is about these two nominations. The GAO and the Office of Legal Counsel disagree about whether the two nominations restart with a new administration. So the GAO says, no, they don't restart. So this would be the idea that if President Biden had made one or two nominations in his term and one had ever been confirmed, let's say President Biden made two nominations, nominations. According to the GAO, President Trump would not have the extension for two more nominations. Now, the Office of Legal Counsel disagrees. And in the Biden administration, they just ignored the GAО. They had people in.

0:30:53 Matt: About this. Could get some real damage in two and a half years. Somebody like RFK Jr., who in a just world could not be confirmed and seems like some reason is still going to possibly be confirmed. Could really just have somebody wreaking havoc who had never had any kind of review.

0:31:04 Anne: You wouldn't be able to have RFK, though. There's one constraint is about, so we were talking about how long these people can serve, and it's a really long time. But the question is, who can serve? So you only have three buckets there. And so the first bucket is the default bucket. You're the first assistant to the vacant position. So for the secretary of health and human services, the first assist is the deputy secretary. So that's a confirmed person and you can't have double actings. Okay.

0:31:32 Anne: So you can have someone acting as deputy and then acting as secretary. That's office of legal counsel been been respected by Republican and Democratic administrations. So you can't get RFK in on the first assistant route to be acting secretary of health and human services because he can't be deputy secretary, right?

0:31:32 Matt: Got it. That's a relief. I actually didn't know that. So thank you.

0:31:54 Anne: Yeah. The double acting thing. That's the main bucket. That you can do a lot of damage though, because you can often get outsiders in, in the first assistent for slightly lower level positions. So you can't get an outsider in for the very highest positions because the first assistant is almost always also a Senate -confirmed role, and you can have double actings. But go down a layer. Go back to Cuccinelli at USCIS. The deputy there is not a Senate confirmed role. So you could get an outsider in to the deputy role and then elevate them, right? Because they are the first assistant. They're not an acting first assistant, they're just the first assistent. And then they could be the acting director. So you can get outsiders in, but only for lower level positions. And then the other two categories also disqualify RFK because the second category, and it has to be the president who signs the memo, would be another person whose Senate confirmed somewhere else in the executive branch. And then the third category, also the president, it's the president and the president alone under the statute, can sign a memo, is you can pick someone within the same agency who's been there at least 90 days in the year before the vacancy and is paid at GS -15 or higher. And so you can't get, you couldn't put RFK in now as a senior advisor being paid at GS -15 or higher because he wouldn't have had his 90 days in the year before Becerra left, Secretary

0:33:21 Anne: Becera left.

0:33:21 Thomas: He's in the bucket labeled just some guy that should not be here.

0:33:25 Anne: So he's a person who can't serve under the Vacancies Act. But what you can do is look at FEMA, right? So FEMA right now has someone there in an interim capacity, but doesn't have the acting title. Now, why is that? That's because the head of FEMA and a bunch of deputies of FEMA are all Senate -confirmed positions. So it's kind of the same RFK problem. So you can't get someone in as deputy because the deputy role is Senate -confirmed. So what did they do? They put in this guy, Cameron Hamilton, the Navy SEAL, and instead of giving him the title, they delegated the job to him. So he's going to be the senior official performing the duties of the administrator, to the New York Times report.

0:34:15 Matt: Was Cuccinelli's whole thing the whole time. I performing the duties of. Right. Okay. So that's making a little more sense. Because the reason actually, one of the reasons we really wanted to get you on was I was concerned about all the different ways this can be gamed because it did seem like Trump was trying to game it. Was that your impression or is it just the incompetence we're talking about?

0:34:29 Anne: Well, I mean, I just feel like DHS was its own little special agency with our taptings. I mean I think it helped immigrant rights groups because it a way of suing about policies they disliked because of personnel.

0:34:42 Matt: Yeah, it seemed like a Hail Mary, but it

0:34:44 Anne: Yeah, but it worked. It worked.

0:34:44 Matt: Worked. Yeah? Sure?

0:34:46 Anne: This whole whole delegation thing is not those, this is not a Trump thing. This was done by President Obama, right?

0:34:54 Matt: Sure.

0:34:54 Anne: It was done bei President Trump, done by president Biden, but it's a workaround. So it turns out like I, we just went through these time limits. Oh, you get 300 days, the pendency, the first nomination, 210 days, pendency of the second nomination, 210 days. But it turns out that once those time limits end, you just change the person's title from, you know, whatever acting acting, uh, and you just say they're now the senior official performing the duties of the administrator. And there's no time limits on that. Now there are two constraints on that. One constraint is that you can only delegate non -exclusive duties. So if someone was mad about FEMA, my, you know, my advice would be like, is there any duty that the head of FEMA has been been assigned that's supposed to be done only by the head of FEMA. And I wonder, you know, that post -Katrina legislation, you Know, are there things that were just assigned to the head of FEMA? If that's true, you be doing those things. First constraint is you can't delegate exclusive duties. So you want to look, look, are there anything exclusive? And you might be able to sue on those. But it turns out the government has admitted in various litigation over delegation that almost nothing is exclusive. So how big of a constraint is that? And then the second constraint is the constitution, that we have the appointments clause. And the idea is that only officers are supposed to be carrying out significant government authority. So litigants could make an argument that although although this might be permitted, right? Delegation is permitted under the Vacancies Act for non -exclusive duties. So maybe the Vacencies Act permits it, but the appointments clause may not. Like if you're actually doing stuff that's really significant government authority and should really be done by someone who is confirmed by the Senate.

0:36:38 Matt: Yeah, this came come up a lot after the election direction when Trump was threatening to make a lot of recess appointments. How does that play into all of this? Because I know that was something we were talking about a lot at the time.

0:36:44 Anne: I feel like I should say knock on wood or something. Haven't seen it. I know, the Republicans going along with recess appointments. I just think that would be a really sad day for the Senate. As I said, right, I believe in government agencies. I actually believe in Congress. And weird.

0:37:04 Thomas: Have you read the news recently?

0:37:06 Anne: I know, I know.

0:37:07 Matt: Hear you, though. I hear ya. Because when these things work, they work. Actually one of the things where I started looking around for people that could talk about the vacancies, because it's just something I don't know that much about, and I'm learning a lot today. But I just wondering, with the recess appointments, how far that could go. And, you know, because again, we have to think about the ways that Trump is stress testing everything. And I hate to have to do that, but that's where we're at.

0:37:10 Anne: That'd work. I It seems like he can get almost everything he wants through acting appointments under the Federal Vacancies Reform Act or through delegation. Now, it will be interesting to see, right? He can't get RFK that way, right, he can't get Hegseth that way.

0:37:45 Thomas: He's just going to get them the normal way.

0:37:47 Matt: They're walking in the front door, it seems like,

0:37:49 Anne: Maybe the threat has been big enough to at least keep up the illusion of the traditional system. I think there are conflicting legal arguments about, you know, whether Trump can use the recess appointments cause in this way. I'm not exactly sure what I think legally, but I can definitely tell you as a matter of policy or administration, it would be a really sad day if we got to recess appointments for these jobs.

0:38:06 Matt: That's okay. That's

0:38:16 Thomas: My question is, he... the Senate, at least, you know, by three votes. So as the non-lawyer among us, are we even talking about this? I mean, what are the things that, like, might still allow him to do, the Vacancies Act? Are there any vulnerabilities? Are there any? Or is it truly just he controls the Senate, so we're done talking about this.

0:38:36 Anne: Even in the first term, there were some folks that the Republicans were not willing to confirm. Ken Cuccinelli, for example, as I understand it, or at least as the news reports had it.

0:38:47 Matt: That's how I remember it.

0:38:48 Anne: So So actings and delegation look pretty good to someone who wants a lot of power. I also think it speeds things up. You want a lot of policies. You want to enact and you need your people and the minority can slow it down, even if they can't ultimately affect the outcome. Take someone other than Cuccinelli. It slows it down and you want folks working. Right. I mean, at the start of the Biden administration, President Biden started his term without a single confirmed person. I mean, President Trump this round got one person on on day one, got secretary of state. It takes time. It takes months. And right now we only have one confirmed cabinet secretary. So it allows you to get people in. And President Biden did that and got a lot of first assistants in. Other stuff could get moving while the process churned, even knowing that these people were going to get through. It just takes a long time. And that's something that's got to be fixed. I have a provocative take on that. We have over 1100 positions that are supposed to be nominated by the president, confirmed by the Senate.

0:39:54 Anne: And it's too many. Right. And so if you cut down that number, maybe, you could just move faster and you could just get people in faster. And maybe they have reporting requirements to Congress because the Senate hasn't signed off on them. You might want some accountability. But my provocative take is that acting officials do what Congress has refused to do for lower level positions. So these are not like this is not the head of FEMA. I'm worried when we have delegation for that out of FEMA. But for these lower level positions, these assistant secretary jobs, these assistant administrator jobs, Even I would say maybe the head of USCIS, though I think that's such an important job, I'd want to keep it Senate confirmed. But positions that are not heading a whole entity, those are inferior offices under the Constitution. So as long as there's oversight by the head or the agency, those don't need to be Senate confirmed jobs. But by having all these acting officials, you're essentially doing that. You're actually cutting out the Senate confirmation process. Now, constitutionally, Congress is supposed to choose that option, right? Choose the president alone or the head of department alone.

0:41:01 Thomas: I was just going to ask, how does that happen? Is it in the statute that created the agency or something?

0:41:05 Anne: It's in the constitution. It says that for inferior offices, Congress can choose one of three alternatives, the president in a loan, a head of a department, or a court of law. Now,

0:41:16 Thomas: Sorry, maybe I was behind a second. I meant what determined that we have 1,100 of these positions versus...

0:41:21 Anne: So an office is initially defaulted to be Senate confirmed. Then Congress under the Constitution has to choose one of three alternatives. And if it doesn't choose, then it's to this PAS role. And Congress creates them all the time. After Katrina made the deputy heads of FEMA Senate-confirmed roles, for example. Now, sometimes, rarely, very rarely, Congress cuts the number. So the last time Congress did this was in 2012. It was the Appointee Streamlining and Efficiency Act of 2011, even though — it was enacted. It was signed in 2012, and it cut Senate confirmation from about 160 positions. But that number has essentially been made up by Congress deciding, oh, this role is really important. Let's create a new role and let's make it Senate confirmed. And there's just too many of these jobs.

0:41:35 Thomas: Gotcha.

0:42:22 Matt: How

0:42:22 Thomas: I think it makes perfect sense because Congress does not want to do it much anymore. They don't want to like pass a whole lot of things, but they do want to complain. So it's like, okay, so you're still in charge of everything, federal branch, but when something goes wrong, we can like haul someone into Congress and question them and grandstand.

0:42:38 Anne: More than that. I think it's a bargaining chip, right? You have a person you have to sign off on and you're like, okay, I want this in terms of policy or I want you to check on this and I'm going to hold up your person that would make your agency function better until you do that.

0:42:55 Matt: And actually, that's worth remembering your question before, Thomas. Back when Trump made that statement about recess appointments was on November 10th, which was when we were looking at Attorney General Matt Gaetz and HHS said RFK Jr. So, you know, at the time, there were actually people apparently that might not have made it through the Senate at the time. You mentioned the inferior officers issue. I just wanted to ask you about your take on the Eileen Cannon, Clarence Thomas special counsel appointment. Do you have a take on that?

0:43:18 Anne: I think the special counsel is constitutionally appointed. I should note that I signed an amicus brief when the special counsel Mueller was challenged in the D.C. circuit and the D.C. circuit found with regard to Mueller that the appointment was constitutional. I it's exact.

0:43:37 Matt: That's directly on point for Jack Smith, right? There's no reason to, right.

0:43:39 Anne: It's the same thing. It's just a different, different guy. Yeah. In part it is Supreme Court precedent. Part

0:43:46 Thomas: Sorry, can you remind us the non -lawyers, the actual argument on this either way?

0:43:49 Anne: Yeah, yeah. So, right, The idea is that special counsels are chosen by the attorney general, and under Department of Justice regulations, they can be fired only for cause by the Attorney General. And this is similar, though not identical, to independent counsels, right? We no longer have independent counsel, but when we had independent counsel Morrison, Morrison was a little different, right? Instead of being chosen by the attorney general, she was chosen by a court of law and had protection from firing. And that case, the Morrison case went up to the Supreme Court and only Justice Scalia dissented, right. The court said it's a proper inferior office. So that matters. It mattered both for the hiring and the firing side. So on the appointments clause issue, the Supreme Court said in Morrison, Morrison. It's an inferior office. So a president alone, a head of a department or a court of law can choose. There was a court of law. It said, okay, fine, on the appointment side, on the selection part. Now there was a separation of powers question on the back end, right? The independent counsel could only be fired for cause, essentially. And the Morrison court decided, well, there were enough kind of protections of the president's power that it didn't significantly interfere in the president's ability to, you know, to take care, right, to do his constitutional duties. And so there was no separation of powers violation. But the conservatives have been gunning for Morrison, right? Since Morrison was decided in the late 1980s. But Morrison is still on the books. It has been modified by these cases about the Consumer Financial Protection Bureau and other cases. But even Scalia did not overturn Morrison. It kind of limited Morrison to inferior officers with limited duties. So now we have the special counsels, they're a little different. But my legal view is that the Morrison case is highly instructive to their constitutionality on separation of powers grounds. I would also say that on this removability question, and this mattered to the DC Circuit in the Mueller case, is that the removal protections are not by statute for the special counsel, they are by regulation. And so the DOJ could rescind the regulation and they wouldn't even need to use notice and comment to do so, because it qualifies as the agency personnel exemption to notice and comment requirements under the Administrative Procedure Act. And so the removability protections are even weaker for the special counsel than the independent counsel. I believe that the special counsel is also an inferior officer, right? Because all the reports to the attorney general, et cetera, even though I will acknowledge the special council does wield a lot of power. So I'm on the side that the special counsel is constitutional. I think the majority of the court would hold, especially given the removal protections being able to be rescinded so easily, would hold that the special counsel is constitutional.

0:43:51 Matt: Such as it is. It did seem to me this whole time that this is a fringe theory, and it's really nice to hear you confirm it as an expert in this field.

0:46:45 Anne: Though I I have to say, right, I'm on a casebook. All these administrative law students are studying after. And we have to figure out each time, you know, well, what do we include in the casebook? You know, do you have to include every theory that you just think is wrong? But because we do have a Supreme Court justice and we do Have a federal judge, we have both sides of that issue in our casebook over

0:46:59 Matt: Does that? Right. Right. Oof, now it's a both sides.

0:47:09 Thomas: I feel like that makes a big difference. Just not every single law professor in the entire country is coordinating on this but like that's sort of like the window on arguments, it's almost like you're determining, like, how far do we open this, uh, this Overton— yes is you're in charge of everything no the the overdon window on that particular yeah that particular issue it is interesting that like you do have to kind of make that that determination.

0:47:23 Anne: I don't think it's administrative law casebook editors opening the Overton window. I think I feel it's the conservative lawyers.

0:47:38 Anne: But I feel like Judge Cannon and Justice Thomas, right?

0:47:39 Matt: It's, yeah.

0:47:42 Anne: They yanked the window open.

0:47:42 Thomas: Yeah, I'm not blaming you.

0:47:44 Matt: Yeah. They smashed it. Yeah.

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0:49:27 Matt: You clerked for Ruth Bader Ginsburg. And I was just wondering if you could share a little bit about that experience and

0:49:31 Anne: It's a different time. It's such a different court.

0:49:35 Matt: I'd like to hear about that, about about the differences.

0:49:37 Anne: I mean, I don't know what it's like now on the court. I know that Justice Ginsburg really liked her boss, right? Chief Justice Rehnquist. Liked other justices even when she passionately disagreed with I remember her birthday, her birthday is the same day as my mother's, and my mother, who is still alive, is 10 years younger. I... so it's the Ides of March, March is the birthday. So it's March 15th. And I'm sitting at my desk near the kind of main area of Justice Ginsburg's chambers, which were then on the second floor. Are on the first floor, but she was on the first floor. And she was sitting there, and she was like, on the third floor. She was on her second floor, and I hear pounding, like someone is running down the hallway. Then I hear, Ruth, my dear Ruth, and there's pounding. And so I'm like, oh, this this is going to be interesting. And in comes, a little bit out of breath, it's Justice Scalia with this huge bouquet of roses for Ginsburg. I was just like, whoa. There were all these stories about them being so close, but it was really something to see. Now, that's not to say that the term that I was there, 2003 to 2004, was a non-controversial term. It wasn't. We actually started early. It seems quaint now. There were oral arguments in September because McCain -Feingold, the campaign finance legislation, being challenged. And so there were several days of oral arguments. And then a lot of that was upheld. And it was such a different time. That was upholding campaign finance. And then Citizens United, right, court changes, you know, Citizens United comes down. And so I feel like it's not just the court, right? The decisions have these huge repercussions on the rest of the country.

0:51:19 Thomas: I suppose you don't have the experience of the current court. Like if you go for a reunion and you open the door and there's graffiti everywhere and people

0:51:27 Anne: Mean notes being passed. I mean, I went back when Justice Ginsburg died. I did go back in September of 2020, you know, to stand vigil, which is the traditional clerk practice. I wasn't going to go back because it was only several months after the start of the pandemic and I was nervous about flying. And my co-clerk texted me and said, I've already signed you up for vigil shifts. Get on the plane. And I'm really glad I did. I saw a bunch of the clerks throughout the year. So that was really nice.

0:52:00 Matt: I'd like to know what you learned from Justice Ginsburg or what we all could learn from.

0:52:04 Anne: She was a very fine writer. She really cared about the craft of writing. Now, sometimes this torments me as a scholar, because I find writing really hard. Like I love thinking about things. I love researching things. I love discussing things. I would have been a really amazing librarian. I loved librarians. The writing process is really hard for me.

0:52:30 Thomas: I feel that. I feel that really hard. I can't do it. Matt writes like effortlessly. I don't get it.

0:52:33 Anne: Hard. Every word can be like a dental procedure. She was a writing teacher. And so sometimes I hear her voice in the back of head because she just cared so much about the writing being clear. And when I'm working on the initial draft, I just think, oh, I'm failing her. So sometimes you just got to get the voice out of your head and just get the words down on the page. You can always edit them later. Um, I definitely learned a lot about writing from her. Um, also learned a lot about theater from her. So she loved to go to shows, music. I mean, everyone remembers the opera, but she loved all sorts of performances, like non-musicals, musicals. And I was the only single clerk my year, the other three were married, and her husband Marty Ginsburg was having some health issues, not the kind of final health issues, but some health issues the year I clerked. So I was often her date to

0:52:41 Thomas: That's a great turn of phrase. Write that down. Oh,

0:53:35 Anne: Various performances, and I would get help from the librarians if it was like related to opera, because I'd never seen an opera prior to clerking, but I was a musical theater kid. That was one of my first ambitions growing up, I wanted to do musical theater. Totally lacked the talent, but loved and now love to see it. Um, so we would go to these shows, like at Wolf Trap, Signature Theater. Um, she was like a giddy schoolgirl. I mean, she loved them. And then she would want to go backstage and meet the cast. Of course, this is before the Notorious RBG, but even then, right, she had, uh, many people looked up to her. And so it was funny to watch both the cast and her, they were both enamored of each other. It was a lot of fun.

0:53:35 Thomas: Wow. That's so cool.

0:54:18 Matt: That's great.

0:54:18 Anne: She would grasp your arm during certain parts of the show, or she'd whisper over, oh, and so good.

0:54:26 Thomas: Man, that sounds nice. Well, as we're coming to a close, I just wonder, I mean, is this stuff that I, as the non-lawyer, is tough to follow. Is there some top-line takeaways for, you know, people like me, when — what should we look for when it comes to Trump utilizing this or failing to utilize it, or whatever, in this first bit of his term here.

0:54:45 Anne: I think several things. I think first, as the Senate churns slowly and as some of his picks are quite out there, you're going to see heavy use of people either with an acting title or with this senior official performing the duties of, of people. So I think for those who are unhappy about the policies that those people are involved with, it's going to be easier to challenge those performing the duty of than people with the formal acting title. So you're going to want to make sure the I's are dotted and the T's are crossed, that they really are properly serving under the Vacancies Act or specific agency provision, because they messed up before, right? They messed up the Homeland Security Succession Act before. Third thing is, it is in the news, right, that the big names like Hegseth is in leadership. And right, these positions are, are right? And these names that you may never hear of, they can do just as much damage as the names that are in the news. So I guess those would be my three takeaways. If I could just end with USCIS, right, or U.S. Citizenship and Immigration Services, it has an acting under Jennifer Higgins. She was the deputy director. So she's obviously doing the role as first assistant. You have for ICE, for Immigration and Customs Enforcement, you have Vitiello, who actually in Trump 1.0 was doing some stuff in a temporary capacity. Then for the deputy director, you have a senior official performing the duties of, right? You have Stacey Barrera. But those are names that are not hitting the New York Times, but they wield vast power.

0:56:25 Matt: Very important rules, for sure.

0:56:26 Thomas: Right. Well, thank you so much for joining us. Really appreciate it. Hey, we always give guests the opportunity. If there's anything you want to plug for our listeners to go to or to visit or find more of your work, free to put it in here.

0:56:37 Anne: I have a profile you can go to on the Stanford Law School website. And I'm also now on Bluesky at A. Joseph O'Connell and doing all of my posting there now on

0:56:47 Thomas: Love it. So are we. Yeah.

0:56:50 Anne: Act and some other topics, including my firing. You can see my firing notice.

0:56:54 Thomas: Sweet.

0:56:54 Matt: Awesome. Look that up.

0:56:55 Thomas: I'm going to give you a follow. Everyone should get on Bluesky for sure. Thanks so much for taking the time, we really appreciate it. Right?

0:57:00 Matt: Thank you.

0:57:01 Anne: Guys.

0:57:01 Matt: Learned a lot here.

0:57:02 Anne: Thank you. Bye.

0:57:03 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:57:21 Thomas: Do we need to do the introductory stuff here?

0:57:23 Matt: We should. I do this all the time. I jump and get excited about guests.

0:57:25 Anne: Thank