Sen. Marsha Blackburn (R-TN) senses something fishy going on at the Environmental Protection Agency just a week into the Biden administration. It appears that EPA Principal Deputy General Counsel Melissa Hoffer asked the DOJ to place a hold on EPA-related litigation via a letter on January 21. In a letter of her own to the EPA Inspector General and the Government Accountability Office Comptroller General, Blackburn is calling for an investigation into Hoffer's potential ethics violations.
One day into the job, EPA’s new leadership is already running afoul of the Appointments Clause of the U.S. Constitution. Today I referred EPA official Melissa Hoffer to EPA IG and GAO to investigate potential violations of ethics rules and the Federal Vacancies Reform Act. pic.twitter.com/asJokPFYCS— Sen. Marsha Blackburn (@MarshaBlackburn) January 25, 2021
The Federal Vacancies Reform Act provides the exclusive means by which a government employee may temporarily perform the non-delegable functions and duties of a vacant advice-and-consent position in an executive agency, the Congressional Research Service explains. And from where Blackburn is standing, it looks like Hoffer is trying to pose as the EPA's Acting General Counsel. Which, as the senator explains in detail below, Hoffer has no constitutional authority to do so:
"On her first day on the job, Ms. Hoffer swiftly sent a memorandum to the U.S. Department of Justice requesting that the Department’s Environment and Natural Resources Division attorneys 'seek and obtain abeyances or stays of proceedings in pending litigation seeking judicial review of any EPA regulation promulgated between January 20, 2017, and January 20, 2021.' Ms. Hoffer electronically signed the letter in her purported capacity as EPA’s Acting General Counsel. In her haste to deliver her message, Ms. Hoffer neglected to acknowledge that the Acting General Counsel role is vacant and she only serves in the inferior role of Principal Deputy General Counsel—as confirmed by EPA’s current organizational chart.
"This is potentially a violation of the FVRA and the Appointments Clause of the U.S. Constitution. The FVRA grants the President—and only the President—the limited authority to appoint acting officials while preserving the Senate’s advice and consent power. The only individuals who may perform the functions and duties of EPA General Counsel in an acting capacity are: (1) the first assistant to the vacant office; (2) an individual already serving in a Senate confirmed office who is directed by the President to serve as the acting officer; or (3) a senior officer or employee already serving at EPA who is directed by the President to serve as an acting officer. But if Ms. Hoffer is indeed the EPA Acting General Counsel, it does not appear she can hold the position through any of these three paths. She was not the 'first assistant' when the vacancy arose; she had not been serving in a Senate-confirmed office; and she had not been employed by any other EPA component in the year prior to the vacancy. And, if the President has not directed Ms. Hoffer to serve as the Acting General Counsel under one of these scenarios, she may not take it upon herself to install herself into a position the Senate has not confirmed."
Sen. Blackburn cites a second potential offense in Ms. Hoffer’s self-appointment, which Blackburn says places her "in a position to supervise the litigation of multiple cases where she previously appeared as opposing counsel against the agency."
“One day into the job, EPA’s new leadership is already running afoul of the Appointments Clause of the U.S. Constitution," Blackburn regretted.