STATEMENT OF ADMINISTRATION POLICY
H.R. 4361 - Federal Information Systems Safeguards Act of 2016
(Rep. Palmer, R-AL, and one cosponsor)
The
Administration is strongly committed to upholding the highest
accountability standards for Federal agencies and the Federal workforce,
including strict standards to ensure that employees act in the best
interests of the American people, and we appreciate the Congress'
attention to government reform and oversight efforts. However, certain
sections of this legislation would weaken the rights of Federal
employees, and be impractical and administratively burdensome to
implement. They would also have harmful unintended consequences, while
failing to address the issues they are designed to solve and while
raising serious constitutional concerns. Because of this, the
Administration strongly opposes H.R. 4361 as considered by the Rules
Committee.
The
Administration believes that the approach to accountability in certain
provisions of the legislation is misguided. For example, H.R. 4361
would require expedited removal procedures for agency senior executives
that would raise significant constitutional concerns under the
Appointments Clause and the Due Process Clause. These procedures impose
a time-constricted case review and appeal process that would permit
administrative judges who are not appointed in a constitutionally
appropriate manner to render removal decisions, would make those
decisions final if the administrative judges fail to act within 21 days,
and would deny any review of the decisions of the administrative judges
by the Merit Systems Protection Board. These procedures are
substantially the same as those in section 707 of the Veterans Access,
Choice, and Accountability Act of 2014, which the Department of Justice
notified the Congress in May of this year could not be defended against
constitutional challenge. These provisions would significantly alter
and diminish important rights and protections that are available to the
vast majority of other employees across the government and that are
essential to safeguarding employees' rights. Moreover, these provisions
would hamper the Federal government's efforts to attract and retain top
talent committed to serving in the Senior Executive Service.
The
requirements for mandatory senior executive reassignment would be
problematic to implement as written, and duplicative of existing
efforts. Under a December 2015 Executive Order, "Strengthening the Senior Executive Service,"
agencies are already required to develop and implement a
senior executive rotation plan. The Executive Order provides a more
productive approach that considers the agencies' talent and succession
management plans, as well as the executive’s individual development
plan.
The
bill would require the Office of Personnel Management (OPM) to report
on the use of union official time across the Executive Branch on matters
not currently covered in existing OPM reporting. The additional
requirements are subjective and virtually impossible to measure. These
additional, burdensome requirements would have to be manually gathered
for approximately 2,000 local bargaining units across the Executive
Branch, making it challenging, if not impossible, to meet the statutory
deadlines established by the bill.
In
addition to objectionable personnel policy provisions, this bill would
set policy that would undermine existing government-wide cybersecurity
and records management policies. Amending individual agency records
management practices is unnecessary and would set a problematic
precedent, as the Federal Records Act already provides clear,
transparent, and effective requirements for managing Federal records.
Finally, the "Midnight
Rule" provisions in this bill would infringe on the powers of the
President to faithfully execute the laws in the final months of the
term. They would arbitrarily prohibit the issuance of key rules and
thus prevent the implementation of laws passed by the Congress through
otherwise lawful, well-justified, and beneficial regulations, and would
also subject the rulemaking process to additional, unnecessary judicial
review provisions.
If the President were presented with H.R. 4361, his senior advisors would recommend he veto the bill.
Source: Executive Office of the President, Office of Management and Budget
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