III

105TH CONGRESS

1ST SESSION S. RES. 128

Expressing the sense of the Senate that sections 3345 through 3349 of

title 5, United States Code (commonly referred to as the ‘‘Vacancies

Act’’), relating to the appointment of certain officers to fill vacant positions in Executive agencies, apply to all Executive agencies, including

the Department of Justice.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 26, 1997

Mr. THURMOND (for himself, Mr. HATCH, Mr. GRASSLEY, Mr. KYL, Mr. SESSIONS, and Mr. DEWINE) submitted the following resolution; which was

referred to the Committee on Governmental Affairs

RESOLUTION

Expressing the sense of the Senate that sections 3345

through 3349 of title 5, United States Code (commonly

referred to as the ‘‘Vacancies Act’’), relating to the appointment of certain officers to fill vacant positions in

Executive agencies, apply to all Executive agencies, including the Department of Justice.

Whereas Congress enacted the Act entitled ‘‘An Act to authorize the temporary supplying of vacancies in the executive departments’’, approved July 23, 1868 (commonly

referred to as the ‘‘Vacancies Act’’), to—

(1) preclude the extended filling of a vacancy in an

office of an executive or military department subject to
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•SRES 128 IS

Senate confirmation, without the submission of a Presidential nomination;

(2) provide an exclusive means to temporarily fill

such a vacancy; and

(3) clarify the role of the Senate in the exercise of

the Senate’s constitutional advice and consent powers in

the Presidential appointment of certain officers;

Whereas subchapter III of chapter 33 of title 5, United

States Code, includes a codification of the Vacancies Act,

and (pursuant to an amendment on August 17, 1988, to

section 3345 of such title) specifically applies such vacancy provisions to all Executive agencies, including the

Department of Justice;

Whereas the legislative history accompanying the 1988

amendment makes clear in the controlling committee report that the general administrative authorizing provisions for the Executive agencies, which include sections

509 and 510 of title 28, United States Code, regarding

the Department of Justice, do not supersede the specific

vacancy provisions in title 5, United States Code;

Whereas there are statutory provisions of general administrative authority applicable to every Executive department

and other Executive agencies that are similar to sections

509 and 510 of title 28, United States Code, relating to

the Department of Justice;

Whereas despite the clear intent of Congress, the Attorney

General of the United States has continued to interpret

the provisions granting general administrative authority

to the Attorney General under sections 509 and 510 of
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title 28, United States Code, to supersede the specific vacancy provisions in title 5, United States Code; and

Whereas the interpretation of the Attorney General would—

(1) virtually nullify the vacancy provisions under

subchapter III of chapter 33 of title 5, United States

Code;

(2) circumvent the clear intention of Congress to

preclude the extended filling of certain vacancies and

provide for the temporary filling of such vacancies; and

(3) subvert the constitutional authority and responsibility of the Senate to advise and consent in certain appointments: Now, therefore, be it

1 Resolved, That it is the sense of the Senate that—

2 (1) sections 3345, 3346, 3347, 3348, and 3349

3 of title 5, United States Code (relating to the filling

4 of vacancies in certain offices), apply to all Execu5 tive agencies, including the Department of Justice;

6 (2) the general administrative authorizing stat7 utes of Executive agencies, including sections 509

8 and 510 of title 28, United States Code, relating to

9 the Department of Justice, do not supersede the

10 specific vacancy provisions applicable to Executive

11 agencies in title 5, United States Code; and

12 (3) the Attorney General of the United States

13 should—
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1 (A) take such necessary actions to ensure

2 that the Department of Justice is in compliance

3 with the statutory requirements of such sec4 tions; and

5 (B) inform other Executive agencies to

6 comply with the vacancy provisions in title 5,

7 United States Code.

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