Ann Carlson’s acting status violates Vacancies Act, GOP Commerce senators demand her removal from role ‘immediately’

WASHINGTON, D.C. –U.S. Senate Commerce Committee Ranking Member Ted Cruz (R-Texas) today led all Committee Republicans in sending a letter to President Biden, blasting the administration for violating the Vacancies Act by allowing Ann Carlson, who was effectively rejected by the Senate to be administrator of the National Highway Traffic Safety Administration (NHTSA), to serve as acting head of the agency. The Senators also assert that the actions that Carlson has taken while illegally leading the agency, including the issuance of proposed Corporate Average Fuel Economy (CAFE) standards for model years 2027-2032, a de facto electric vehicle (EV) mandate, are invalid as a result.

As the Senators wrote:

“As Members of the U.S. Senate Committee on Commerce, Science, and Transportation (“Commerce Committee”), we write to express our deep concern with your decision to disregard the Senate’s constitutional authority on appointments by naming failed-nominee Ann Carlson to serve as the acting administrator of the National Highway Traffic Safety Administration (“NHTSA”).  In circumvention of the Senate’s constitutional responsibility to provide advice and consent on presidential nominations, you appointed Ms. Carlson to lead the agency after her nomination to be NHTSA administrator failed in the face of significant Senate opposition due to her extreme policy views, radical environmentalist record, and lack of vehicle safety experience.  Ms. Carlson’s appointment as acting administrator not only violates the Federal Vacancies Reform Act (Vacancies Act), but also renders the agency’s actions while she has held herself out as acting administrator invalid.  We urge you to immediately replace Ms. Carlson as acting administrator and name a new nominee as soon as possible.

“As you are aware, Ms. Carlson was nominated to serve as NHTSA administrator on March 27, 2023.  In response to opposition from a broad array of stakeholders and every Republican on the Commerce Committee, you withdrew her nomination two months later.  Then, rather than selecting a new nominee who could receive bipartisan support in the Senate and would have the qualifications needed to lead this important safety agency, you promptly attempted to place Ms. Carlson back into the head role at NHTSA in an acting capacity. 

“The law prohibits Ms. Carlson from serving as acting administrator of NHTSA.  The Appointments Clause of the Constitution requires the President to obtain “the Advice and Consent of the Senate” to appoint “Officers of the United States,” including the NHTSA administrator, as NHTSA’s authorizing statute makes clear.  The Supreme Court has emphasized that the Appointments Clause “is more than a matter of ‘etiquette or protocol;’ it is among the significant structural safeguards of the constitutional scheme. . . . By requiring the joint participation of the President and the Senate, the Appointments Clause was designed to ensure public accountability for both the making of a bad appointment and the rejection of a good one.” […]

“Moreover, since she cannot lawfully serve as acting administrator, the actions she has taken and will take in that position are invalid.  The Vacancies Act provides a mechanism for protecting against unlawful appointments like Ms. Carlson’s.  It states that the actions of a person unlawfully appointed as an acting official “shall have no force or effect.”  Moreover, such invalid actions “may not be ratified” after the fact by a subsequent administrator.  Indeed, Ms. Carlson’s actions while purportedly serving as “acting administrator” demonstrate why it is so important that the Senate exercise its advice and consent authority to reject a President’s “bad appointment.”  At NHTSA, Ms. Carlson has proposed radical new vehicle fuel economy standards for model years 2027 to 2032 that effectively mandate the production of electric vehicles.  These standards run contrary to the law, diminish consumer choice, impose higher costs on American families, and undermine our national and energy security all while benefiting China.  Because Ms. Carlson cannot legally serve as the acting administrator these proposed standards are invalid and cannot be ratified by a subsequent Senate-confirmed NHTSA administrator.

“To comply with the law, you should immediately correct your violation of the law by removing Ms. Carlson from her so-called acting administrator position.  After doing so, you should nominate a serious and well-qualified person to be NHTSA administrator.  We stand ready to work with your administration to confirm such a nominee to lead this important safety agency.”

 Media outlets like the New York Times, Wall Street Journal, and others have repeatedly reported that the ongoing and growing United Auto Workers (UAW) strike is a direct result of a battle over electric vehicles, made worse by President Biden’s mandates and subsidies that unaccountable bureaucrats like Ann Carlson carry out.

Read the letter HERE.

BACKGROUND:

In May, Sen. Cruz and the Senate Commerce Republicans sent a letter highlighting serious concerns regarding Ann Carlson’s past record of promoting green energy mandates for the automobile industry. The Senators warned that under Carlson, NHTSA would follow the Environmental Protection Agency’s (EPA) lead and adopt California’s extreme push to ban gas-powered vehicles by proposing radical vehicle fuel economy standards that run contrary to the law, diminish vehicle choice, impose higher costs on American families, and undermine our national and energy security all while benefitting China.

Later that month, in the face of Commerce Committee criticism, the White House withdrew Carlson’s nomination, but named her as acting administrator.

In July, under Ann Carlson’s leadership, NHTSA released their CAFE standards for model years 2027-2032, which effectively act as an EV mandate. Sen. Cruz issued the following statement in response:

“Today, the Biden administration escalated their war on affordable gas-powered cars and trucks, taking a page from California’s ‘Green New Deal’ playbook. Commerce Republicans warned the failed radical NHTSA nominee Ann Carlson not to take this step in a May 1st letter because American families should be free to purchase any vehicle they want. This de facto EV mandate will dramatically raise car prices, weaken energy security, and is likely contrary to the law. I will continue to fight this Bidenomic policy.”

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