The Justice Department followed that up with a legal opinion rejecting GAO’s logic, arguing the limit on acting officials resets with each new president. GAO created the precedent in a decision last year regarding the Defense Department’s inspector general that the “two nomination rule” held true even if they spanned multiple presidencies. That means if Congress rejects a nominee, allows a nomination to expire at the end of a congressional session or the person withdraws from consideration on two separate occasions, the position must remain vacant with no one serving in it even on an acting basis.
The law only allows for the latter timetable in two instances for each vacancy, however. Officials can serve in acting capacities while a permanent nomination is pending, and for 210 additional days after a nomination is withdrawn or rejected. Presidents generally can name someone to such positions in an “acting” capacity for 210 days after they become vacant or 300 days after inauguration. The Federal Vacancies Reform Act lays out several scenarios for who can serve in an unfilled position normally requiring presidential appointment and Senate confirmation. GAO said that interpretation is ignoring the letter of the law and flagged the violations for Congress and the White House. At issue is whether those limitations on “acting” officials reset when a new president is inaugurated, as the Biden administration has said they should. The Government Accountability Office’s legal decisions mark an escalation of the legislative branch agency’s disagreement with the executive branch over the proper interpretation of a 1998 law that sets the rules for government leaders serving in temporary positions.
The government’s top watchdog on Wednesday determined the Biden administration allowed five appointees to serve unlawfully, three of whom are still in their positions.
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