It seems Sen. Mary Landrieu (D-LA) has struck a nerve with her hold of President Obama’s nominee for Office of Management and Budget director, Jack Lew. Last week, the Washington Post launched a salvo against her, penning an editorial titled, “It's a terrible time to be without a budget office head,” lambasting the senator for her hold. The editorial is spot on, and brings some much needed media attention to Landrieu’s absurd actions, which are hurting OMB’s efforts at putting out the 2012 budget request. But what I found most interesting was one line towards the end.

“There may be a work-around [to Landrieu's hold],” the Post wrote; “having been confirmed to his current post, as deputy secretary of state, Mr. Lew is eligible, under the Vacancy Act, to be put in the OMB job before being confirmed.” This piqued our attention, since this is the first time we’ve heard of such a possibility. Since Obama cannot appoint Lew as a recess appointment, because the Senate is meeting in “pro-forma” sessions during the current recess, we assumed that was the end of the story.*  But is there still a way for Lew to temporarily lead OMB?

The Vacancies Act mentioned in the Post piece is a 1998 law, which updated a 1868 law, that stipulates who can temporarily fill a Senate-confirmed position, such as an agency head, in the event of an opening. By the late 1990s, the executive branch had essentially stopped obeying the original Vacancies Act, since the 130 year-old law did not reflect the modern, more difficult, confirmation process.

The old law gave acting officers an unbelievably short tenure, and when that time ran out, the office's powers could not be used by anyone until the Senate confirmed a new officer. In practice, this meant that agencies could be without a leader for long stretches of time. The revised Vacancies Act gave the president both more time and more choices when naming an acting officer to fill a Senate-confirmed position.

Under the new Vacancies Act, the president has three choices for naming an acting officer:

• so-called “first assistants,” or deputies, to the vacant office
• other Senate-confirmed officers in any agency
• senior agency employees chosen by the president

For the most part, when writing the law Congress assumed the president would use the first option, and by and large, this seems to be how the federal government currently works. When an agency head steps down, their first assistant, often a deputy secretary, takes their place as acting secretary (or whatever the head’s title was; secretary, attorney general, director, etc).

The other two options are there as alternatives. Sometimes the first assistant position is empty, for instance, or the agency can’t spare the man-power. In those cases, the president can either choose another Senate-confirmed officer, from any agency, or a senior agency employee, so long as that person has been working in the agency for awhile. Both alternatives are designed to give the president more flexibility in temporarily filling vacancies, but yet not turn an important office over to any old person.

Obama could use this second option to temporarily fill the office of OMB director, installing Lew as acting director, since Lew’s current position, deputy secretary of State for management, is a Senate-confirmed office. In fact, Jeffrey Zients, the current acting head of OMB, was also installed as acting director using one of the alternative Vacancy Act options, since the usual first assistant position, the deputy director, has been vacant ever since Rob Nabors moved over to the West Wing. As a Senate-confirmed officer, Zients is eligible to serve as acting OMB director.

Interestingly, there is a specific section of the law which prevents nominees for vacant positions to also fill that position in an acting capacity. But bizarrely, it seems to only apply to first assistants who are chosen to fill the vacancy, not other Senate-confirmed officers or senior agency employees. So Lew would be able to both lead the agency as acting OMB director and stand as the nominee for the position, under the Vacancies Act.

Another interesting side note to this story is that, theoretically, Obama should not be able to use the Vacancies Act to make Lew acting OMB director. The Vacancies Act specifically states that it is the exclusive law for temporarily filling vacancies, except when an agency has a specific statute setting out the line of succession. And the OMB is one of a handful of agencies to have just such a law. The Budget Act, which created the OMB and the modern budget process, specifically states that “the deputy director... acts as the Director... when the office of Director is vacant,” and if both positions are vacant, another agency official steps in.

Theoretically, that means the Vacancies Act does not apply to OMB, and Lew cannot be acting OMB head. But, thanks to a couple of legal opinions from President Bush’sOffice of Legal Counsel (OLC), one of which expressly applies to acting OMB heads, Obama can essentially choose which Act he wants to follow when filling vacancies. The opinions point out that the Vacancies Act simply says the Act is no longer the exclusive means for filling vacancies when there is a specific statute, not that the Act is disallowed. Essentially, this means that in agencies like the OMB, both the statute and the Vacancies Act are viable choices.

To make Lew acting head of the OMB, Obama would have to use the Vacancies Act, and effectively ignore the Budget Act. Of course, there are many reasons why Obama might choose not to do so. First, Obama’s OLC might interpret the Vacancies Act differently, for instance by either saying the Act is not applicable in agencies such as OMB, or that the Act precludes cases such as Lew’s (to be both nominee and acting director). But such instances of overturned OLC decisions are rare; the most recent such action was when extremely controversial Bush-era OLC opinions regarding torture were withdrawn.

A more likely reason is that Obama would want to avoid angering one or more senators. Even though Lew has widespread bi-partisan support in the Senate, naming him acting director would be seen as an end-around of the Senate, and those senators supporting the hold (currently, both Sens. Mark Begich (D-AK) and David Vitter (R-LA) have expressed support of Landrieu’s hold). It might not be the best idea to anger senators over this issue, since while we believe Landrieu’s hold is a travesty, we understand that there are larger issues confronting the Senate today. With tough votes like the 2011 budget and the Bush tax cuts looming in the lame duck, is it really worth ticking off senators over a budget director?

*UPDATE: The Washington Post has an opinions piece out today, arguing that Senate pro-forma sessions do not in fact preclude a president from using his recess appointment powers.  The authors urge Obama to "consider calling the Senate's bluff," fearing that continued use of pro-forma sessions will lead to even more Senate gridlock.  I would note, however, that appointing Lew through a recess appointment would likely anger senators even more than using the Vacancies Act would, since Obama would be flouting both the hold system and the pro-forma tactic.

Images by Flickr users nasa hq photo and Jeremy Brooks used under a Creative Commons license.