No Vacancy? Why the Inhofe Inquiry Should Probably Go Nowhere

The Vacancies Reform Act seemed like a good idea at the time. Applying it to personnel within the “Executive Office of the President,” though, is a terrible idea.

As we’ve noted at the Lab before, CEQ has been without permanent leadership since Nancy Sutley resigned in early 2014.  By operation of a little-known statute enacted in 1998, that might seem to leave a bit of a constitutional vacuum.  That’s at least what Senator James Inhofe argued in twin letters to President Obama and the Council’s current “managing director,” Christy Goldfuss, last Friday.

When Sutley resigned, a POTUS-nominated, Senate-confirmed “Chairman” never replaced her.  As federal law now structures this “council,” a “chairman” is all the political leadership CEQ gets.  See Pub. L. No. 113-235, div. III, 128 Stat. 2130 (2014).

But enter the “Vacancies Reform Act,” a statute purporting to require the filling of any such position no more than a set interval of time after a proper vacancy arises.  Traditionally, the President has filled many such positions with temporary appointees and scheduled Senate confirmations of the various positions on demand according to Administration priorities, tolerances for today’s combative confirmation processes, etc.

Not so! says Senator James Inhofe in his letters, whose texts make compliance with the VRA sound like a matter of clockwork compared to this latest massive indiscretion by the Obama CEQ.  This is so clearly an effort to skirt the law, Inhofe argues, that everything CEQ has done since February 24, 2014, is void and ultra vires.  (Never mind that this is an “agency” which rarely takes actions with legal consequences in any simple sense.)  The letter to Goldfus demands “information and unredacted copies” of documents relating to 20-some categories of CEQ actions and personnel—with the CEQ’s proposed “Revised Draft Guidance for Federal Departments Act Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews” right in the thick of it.

Putting aside the VRA’s many problems with the Recess Appointments Clause (and this student piece in the Duke Law Journal shortly after it was enacted ably explains those), any effort by the Senate to impose what the VRA expects upon what amount to staff offices within the Executive Office of the President seems like pure political brinkmanship.  Add to that the volume of Inhofe’s information demands of Goldfuss and this seems like a fishing expedition bent on interfering in any way possible with the Obama Administration’s climate change agenda.

Not that that’s necessarily improper.  It is the Senator’s prerogative to generate static.  It should, however, inform any effort to enlist the federal courts.  Congressional standing is notoriously murky territory for Article III courts. But it still comes down to a plaintiff’s injury (and the court’s willingness to insert itself in inter-branch political strife).  See Raines v. Byrd, 521 U.S. 811, 822 (1997).

Injury to Senator Inhofe from any of CEQ’s complained-of actions will be hard to find.  In the leading cases, it’s usually an injury to voting power, one’s own privileges in Congress, etc., which sustains Article III standing.  (And it might be harder yet to find a private plaintiff with any such injury.)  Here, the Senator’s harm is that he doesn’t like the President’s policies.  And that probably won’t suffice.

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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