Reading this article, it looks like there could be a showdown coming here that will wind up at the Supreme Court.
Are actions of a dozen officials in various agencies void because court says they are ineligible for office?
For an agency still reeling from a massive cybertheft affecting a population almost the size of Australia’s, the Office of Personnel Management (OPM) does not need a legal opinion that says its chief is illegitimate.
That’s the case with Beth Cobert’s status as acting OPM director. Once President Obama nominated her to the full-time position, she was not eligible to be acting director, according to a letter to her from Inspector General Patrick E. McFarland. Furthermore, he said any actions she has taken since her nomination in November are invalid.
If that sent a shock wave through OPM, it also could be felt in other agencies. A decision by a panel of the U.S. Court of Appeals for the District of Columbia “casts a legal cloud over a wide variety of acting government officers, past and present,” the Justice Department said in a petition filed with the court in October.
But Cobert doesn’t appear worried.
“Let me be clear,” she said in a message to OPM employees Thursday. “My service as Acting Director comes at the direction of the President, based on decades of bipartisan precedent and longstanding legal guidance from the Department of Justice. All of this gives me and the White House great confidence in my legal status as Acting Director.”
She cited a White House statement that said “We firmly believe that Acting Director Cobert is acting within the confines of the law.”
McFarland, who leaves office Friday, disagrees.
McFarland said a court decision on the Federal Vacancies Reform Act “prohibits your serving as the Acting Director of the U.S. Office of Personnel Management (OPM) as of November 10, 2015, the date that the President nominated you to the Senate for appointment as Director of OPM. Moreover, under the FVRA, any actions taken by you since the date of your nomination are void…”
Go read the rest, this could be a serious issue, right in the middle of an election year.