The maneuver, while legal, dances around the intent of the Federal Vacancies Reform Act of 1998, which was passed to give the president some time to install acting leadership while nominations go through the at-times lengthy Senate confirmation process, lawyers and academics said.
“Just because something is legal doesn’t make it desirable,” Anne Joseph O’Connell, a law professor at Stanford Law School, said of the arrangement, adding that it couldn’t have been Congress’ intention at the time “that delegation would serve such a large workaround to the constraints on acting officials.”
But the US Court of Appeals for the Federal Circuit in Arthrex, Inc. v. Smith & Nephew, Inc. upheld the legal argument being used in the current scenario at the Wage and Hour Division, that the limitations on who can serve under the Vacancies Act only apply when a temporary official is performing “exclusive” or “non-delegable” duties of the position.
Agencies and courts also have taken a broad view of what top agency position’s job duties are “non-exclusive,” both Berry and O’Connell said, meaning that under the exception, officials like Looman essentially have all the authority they would if they were fully confirmed.
Medicare and Medicaid provide health care coverage to millions of Americans and are aggressively protected by federal and state authorities. The Department of Health and Human Services Office of In...