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Tuesday, January 19, 2021

Comments

michael emancipator

Hi Jeff - having Chopra sit as acting while awaiting senate confirmation makes logical sense, but CRS periodically drafts an analysis of FVRA [https://fas.org/sgp/crs/misc/R44997.pdf]. The report suggests that what Biden is reportedly considering might not be permitted. The relevant portion is found on page 11, "As a general rule, if the President nominates a person to the vacant position, that person “may not serve as an acting officer” for that position. Thus, if the President nominates a person who is currently the acting officer for that position, that person usually may not continue to serve as acting officer without violating the Vacancies Act." Citations reference NLRB v. SW Gen., Inc., 137 S. Ct. 929, 935 (2017).

I think Chopra will still get confirmed, but Biden might have to select someone else as acting, for the time-being.

Long time reader, first time commenter - Michael

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