Summary: GAO has long maintained that the Vacancies Act is the exclusive authority for the temporary filling of vacant positions that require presidential appointment and Senate confirmation. In GAO's view, the application of the act can be superseded only if there is specific statutory language providing another way to fill the vacancy in question. The Justice Department and other executive branch agencies disagree with GAO's opinion, contending that the act can be overcome by provisions in their enabling statutes that give authority to the agency head to assign functions and delegate authority within the agency. GAO disagrees with these arguments. The Administration's continued disregard of the Vacancies Act in the face of congressional intent, many Comptroller General opinions, and greater congressional and public scrutiny suggests that Congress may wish to consider additional action to ensure compliance. For example, Congress could prohibit salary payments to those who occupy positions in violation of the Vacancies Act. This would provide an incentive for the President and those filling the vacancies to comply with the legislation. In addition, Congress could establish a reporting mechanism, such as requiring agencies to advise Congress or GAO about vacancies, their duration, and nomination. This would strengthen oversight and ensure that vacancies in the government's most responsible positions are filled promptly.
