Did Shulkin get fired or resign? This is why it matters

The White House is now asserting that recently departed Veterans Affairs Secretary David Shulkin resigned. Shulkin has made it clear in his public comments that he was forced out. While Washington often wraps firings in the verbal cloak of a resignation, the distinction this time could have far-reaching implications that could throw the Department of Veterans Affairs, the second-largest federal agency, into further disarray. In announcing the removal of Shulkin as VA secretary, Trump tapped Defense Department official Robert Wilkie as the acting leader of the department, bypassing Shulkin’s deputy, who was next in line to succeed him. That decision has reignited a debate among legal experts about the president’s ability to hand-pick replacements for ousted Cabinet secretaries. The debate centers on vague language in the Federal Vacancies Reform Act of 1998, which gives the president broad authority to temporarily fill a vacancy at a federal agency with an acting official if the current office holder “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” But some legal experts note that the law does not explicitly grant that authority to the president in the case of firings. That could make Trump’s decision to appoint Wilkie, the under secretary of defense for personnel and readiness, as acting VA secretary a potential test of the president’s authorities under the act. And it means that any formal actions Wilkie takes as acting secretary could face a legal challenge that might stall sorely needed reforms and modernizations at the troubled agency. When POLITICO asked the White House for comment about the potential legal issues surrounding Shulkin’s replacement, spokeswoman Lindsey Walters said in a statement, “Secretary Shulkin resigned from his position as Secretary of the Department of Veterans Affairs.” Walters’ comment is in sharp contrast with the well-established narrative that Trump fired Shulkin. Until now, the White House has made little effort to correct the many press accounts saying Shulkin was removed. The White House declined to elaborate on the exact circumstances surrounding Shulkin’s ouster or offer any evidence to support the assertion. A VA spokesman referred a request for comment to the White House. But a person familiar with Shulkin’s dismissal strongly disputed that Shulkin resigned, noting that he did not submit a resignation letter. Shulkin’s removal happened so quickly, the person said, that he was never given the opportunity to return to his office or address VA employees. Shulkin, for his part, has publicly criticized the White House for its handling of his removal. During an interview with MSNBC this week, he said Trump never mentioned his plans to push him out during a phone call on Wednesday. White House chief of staff John Kelly subsequently informed him of the president’s intention later that afternoon. Under normal circumstances, the VA’s No. 2, Deputy Secretary Thomas Bowman, would have stepped in as secretary after Shulkin departed. But Trump and many in the White House have clashed with Bowman, believing him to be opposed to efforts to move toward more privatized veterans health services. Wilkie could serve as acting VA chief for several months while Trump’s nominee to permanently lead the department, White House physician Ronny Jackson, awaits confirmation in the Senate. Any significant policy decision Wilkie makes during that time could prompt a challenge from an injured party claiming that Wilkie doesn’t have the legal authority to lead the department in an acting capacity. The succession question could also reemerge if Trump fires Attorney General Jeff Sessions and seeks to install an acting AG from another agency instead of Deputy Attorney General Rod Rosenstein. Rosenstein has been on the receiving end of Trump’s ire in recent months. Trump signed an executive order last year reorganizing the order of succession at the Justice Department. A challenge to Trump’s decision to appoint Wilkie would be unprecedented, according to experts. But some added that it could be an increasingly attractive option for outside groups who want to overturn the Trump administration’s policy moves. “It’s an open question. There are ways to read the statute both ways,” said Stephen Vladeck, a professor at the University of Texas School of Law. “There’s reason to wonder if Congress would have wanted to give the president such broad ability to fill a vacancy he creates.” Even if the VA succession goes unchallenged, Vladeck said picking an acting official outside the traditional line of succession could be a “dry run” for similar maneuvers at other agencies, including the Justice Department. Anne Joseph O'Connell, a law professor at the University of California, Berkeley, who specializes in the Vacancies Act, said, “It’s conceivable that somebody could bring a challenge to a decision made by the acting secretary. But it’s really hard for me to see a court saying the act doesn’t apply.” O'Connell said she believes the law does in fact apply to firings and she listed several potential hurdles to mounting a serious legal challenge. Among them: finding somebody who has been injured by a decision made by the acting secretary and convincing a court that the law intended to stop presidents from picking acting secretaries after a firing. Another potential difficulty: figuring out a way to differentiate between a firing and a forced resignation. But there are potential avenues for a lawsuit. Shulkin was fired before he could finalize a $16 billion electronic health records contract. If Wilkie signs the contract as acting administrator, a party that claims to be injured by the contract could bring a court challenge, O’Connell noted. The Justice Department, for its part, has suggested that firings are applicable under the Vacancies Act. In 1999 guidance issued shortly after the act was signed into law, DOJ acknowledged that the “full range” of what would constitute a vacancy under the act is “unspecified.” But the guidance noted that senators mentioned the issue of firing when debating the legislation. “In floor debate, Senators said, by way of example, that an officer would be ‘otherwise unable to perform the functions and duties of the office’ if he or she were fired, imprisoned, or sick,” the guidance says. source: https://www.politico.com/story/2018/03/31/did-shulkin-get-fired-or-resign-veterans-492877 #Headlines by: arestuccia@politico.com (Andrew Restuccia)

Original Post: https://www.politico.com/story/2018/03/31/did-shulkin-get-fired-or-resign-veterans-492877