Application o f Vacancy Act Limitations to

Presidential Designation o f an Acting Special Counsel

The Vacancy Act does not circumscribe the President’s express authority pursuant to the Immigration Reform and Control Act of 1986 to designate an Acting Special Counsel for 

Immigration-Related Unfair Employment Practices.

June 8, 1989

Me m o r a n d u m Op in io n f o r t h e C o u n se l t o t h e P r e s id e n t

This is to provide you with this Office’s views on whether the limitations of the Vacancy Act, 5 U.S.C. §§ 3345-3349, are applicable to the designation of an Acting Special Counsel for Immigration-Related Unfair 

Employment Practices. As you know, we have recommended that the 

President designate Andrew M. Strojny for that position pursuant to 

express authority in the Immigration Reform and Control Act of 1986 

(“Immigration Act”), Pub. L. No. 99-603, 100 Stat. 3359 (1986) (codified in 

scattered sections of 8 U.S.C.). We believe that the Vacancy Act does not 

circumscribe the President’s authority to designate an Acting Special 

Counsel pursuant to the Immigration Act.

Pursuant to 8 U.S.C. § 1324b(c)(l), the Special Counsel is appointed by 

the President, by and with the advice and consent of the Senate. That 

same section also expressly authorizes the President to fill the position in 

the event of a vacancy.

In the case of a vacancy in the Office of the Special Counsel 

the President may designate the officer or employee who 

shall act as Special Counsel during such vacancy.

8 U.S.C. § 1324b(c)(l).

We understand that the question has been raised as to whether the provisions of the Vacancy Act, 5 U.S.C. §§ 3345-3349, would be applicable to such 

a designation. The provisions of the Vacancy Act would, inter alia, require 

either that the “first assistant” in the Office assume the duties of the Acting 

Special Counsel, see id. § 3346, or that the President detail to the position 

an official confirmed with the advice and consent of the Senate. See id. § 

3347. Moreover, the term of those who take office under the authority of the 

Vacancy Act is limited to a specified number of days. See id. § 3348.

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We believe, however, that the Vacancy Act clearly does not limit the 

President’s authority under section 1324b(c)(l). This Office has long held that the Vacancy Act does not extinguish other statutory authority for filling vacancies and that the Act’s limitations do not apply to designations 

made pursuant to those authorities. For example, this Office concluded 

in 1973 that the limitations of the Vacancy Act were not applicable to the 

services of Solicitor General Robert H. Bork as Acting Attorney General 

because “by its own terms the section of the Vacancy Act containing the 

30-day rule applies only to vacancies filled under the provisions of the Vacancy Act. It thus is inapplicable to vacancies filled under other 

statutes.” Letter to Sen. Proxmire, drafted by Assistant Attorney General 

Robert G. Dixon, Jr., for signature by Leonard Garment, Counsel to the President. See also Status of the Acting Director, Office of Management

and Budget, 1 Op. O.L.C. 287 (1977) (Vacancy Act not applicable to filling 

the vacancy in the office of Director of OMB in light of the specific statu­ tory authority providing for filling the vacancy). The Office also relied on 

this analysis when it recommended in 1987 that President Reagan desig­ nate an Acting Special Counsel under the authority of section 

1324b(c)(l). Letter for Arthur B. Culvahouse, Jr., Counsel to the 

President, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel (Apr. 9, 1987).

We recognize that in 1988 Congress amended the Vacancy Act with the 

enactment of section 7 of the Presidential Transitions Effectiveness Act, 

Pub. L. No. 100-398, § 7, 102 Stat. 985, 988 (1988). That amendment made 

two changes to the Vacancy Act. First, it expanded the scope of 5 U.S.C. 

§ 3345, which provided for the filling of vacancies in the “heads of executive departments” to include “executive agencies.” Second, it extended 

the Vacancy Act’s previous 30-day limitation on the temporary filling of 

vacancies under its authority to 120 days.1

The two changes made to the Vacancy Act in 1988 provide no basis for 

us to alter our conclusion that section 1324b(c)(l) is available for the 

appointment of an Acting Special Counsel. As noted above, the first

1 5 U.S.C. § 3348 provides, in full

(a) A vacancy caused by death or resignation may be filled temporarily under section 3345, 

3346, or 3347 of this title for not more than 120 days, except that —

(1) if a first or second nomination to fill such vacancy has been submitted to the Senate, 

the position may be filled temporarily under section 3345, 3346, or 3347 of this title -

(A) until the Senate confirms the nomination, or

(B) until 120 days after the date on which either the Senate rejects the nomination or 

the nomination is withdrawn; or

(2) if the vacancy occurs dunng an ac^joumment of the Congress sine die, the position 

may be filled temporarily until 120 days after the Congress next convenes, subject 

thereafter to the provisions of paragraph (1) of this subsection.

(b) Any person filling a vacancy temporarily under section 3345, 3346, or 3347 of this title 

whose nomination to fill such vacancy has been submitted to the Senate may not serve 

after the end of the 120-day penod referred to in paragraph (1)(B) or (2) of subsection (a) 

of this section, if the nomination of such person is rejected by the Senate or is withdrawn.

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change concerned section 3345 of title 5, United States Code. That section now provides for the temporary filling of the “head of an Executive 

agency (other than the General Accounting Office).” 5 U.S.C. § 3345. 

Because the Special Counsel, however, is not the head of an executive 

agency, this amendment does not bear on the scope of the Vacancy Act 

with respect to this position. Nor does extending the time a person temporarily filling a vacancy under the Vacancy Act may serve render the Act 

applicable to designations of acting officials made under the authority of 

other statutes. We acknowledge that during consideration of the recent amendments 

to the Vacancy Act the Senate Government Affairs Committee appeared 

to disagree with the Department of Justice’s long-standing view that the 

Vacancy Act does not extinguish other general authorities relating to the 

appointment of officers. See S. Rep. No. 317, 100th Cong., 2d Sess. 2 

(1988). We do not believe however, that a congressional committee can 

alter the proper construction of a statute through subsequent legislative 

history. See Consumer Product Safety Comm’n v. GTE Sylvania, Inc.,

447 U.S. 102, 117-18 & n.13 (1980). In any event, even the Senate Report 

recognizes that express authority for filling vacancies, such as section 

1324b(c)(l), may be used notwithstanding the Vacancy Act. S. Rep. No. 

317 at 14. (“The exclusive authority of the Vacancies Act would only be 

overcome by specific statutory language providing some other means for 

filling vacancies.”). In conclusion, our review of the 1988 amendments to the Vacancy Act 

does not change our opinion that the express authority contained in section 1324b(c)(l) is available for the President to designate an Acting 

Special Counsel and that the limitations in the Vacancy Act do not apply 

to this authority.

WILLIAM P. BARR

Assistant Attorney General

Office of Legal Counsel

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