Weems may hold CMS top post through 2008 without confirmation

Centers for Medicare and Medicaid Services (CMS) Administrator-nominee Kerry Weems could hold the job without Senate confirmation for the rest of President Bush’s term following a move made by the White House this week.

Although Weems’s nomination is still pending in the Senate, the president’s designation of him as acting administrator gives him the job indefinitely with the same legal authority as if he had been confirmed, according to the White House.

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Bush’s action, announced Tuesday, appears to all but eliminate the need for the Senate to carry out its constitutional advise-and-consent role. The president did not use his constitutional authority to make any recess appointments while Congress was away in August, but the Weems designation has the same practical effect.

“He can basically serve for as long as the nomination” is pending, White House spokeswoman Emily Lawrimore said Thursday. Weems has been an employee at the Department of Health and Human Services for more than 20 years, most recently as deputy chief of staff to Secretary Mike Leavitt.

The White House will continue to work with the Senate to get Weems confirmed, Lawrimore emphasized. Likewise, an aide to senior Senate Finance Committee member Jay Rockefeller (D-W.Va.) noted that the Bush administration and the Senate would continue to work toward confirmation because it confers valuable legitimacy onto an official.

Regardless of what the Senate may do, the aide noted, “At the end of the day, the guy’s on the job.”

Finance Committee Chairman Max Baucus (D-Mont.) was notified in advance that the president would designate Weems as acting administrator, a spokeswoman said.

This move is somewhat uncommon because presidents do not customarily designate an individual as “acting” head of an agency after he or she has been nominated for the same position. Presidents, however, regularly nominate individuals to jobs after designating them to serve in an acting capacity.

Given the relatively short amount of time left in Bush’s term in office, the president could employ the same mechanism to avoid Senate confirmation of nominees to nearly any vacant executive office.

“This is unusual, to nominate … then designate as acting,” said New York University professor Paul Light, an expert on the presidential appointment process and a former congressional aide.

“I’ve never heard of this before. It seems like a backdoor recess appointment,” Light said.

The Finance Committee held a hearing on Weems in July but has not voted on Weems’s nomination. It has also not been placed on the Senate calendar.

Weems underwent mostly light questioning at the hearing. The issues under CMS’s purview, however, are at the heart of several high-profile disputes between the administration and congressional Democrats, such as the reauthorization of the State Children’s Health Insurance Program and substantial changes to Medicare.

The last Senate-confirmed CMS administrator, Mark McClellan, resigned on Oct. 15, 2006. Leslie Norwalk then served as acting administrator, by virtue of her position as deputy administrator, until she resigned on July 20.

The White House argues that Weems may serve as acting administrator under the Federal Vacancies Reform Act of 1998, a statute enacted to ensure the Senate the maximum opportunity to approve presidential nominations while allowing presidents to fill vacant positions as they await Senate action.

The law lays out numerous limitations on how long an individual can hold a presidentially appointed, Senate-confirmable job in an acting capacity. The first restriction allows an acting agency head to serve for 210 days after the job becomes vacant, but that clock can be reset when the president nominates someone for the job.

In this case, Bush essentially shut the clock down by designating his nominee as the acting administrator, because the law suspends the time limitations if a nomination is pending.

If the Senate confirms the nominee, he or she is installed in the position. If the Senate rejects the nominee or the president withdraws the nomination, the acting agency chief gets another 210 days from the date of that action. But if the president resubmits the nomination or nominates another person during that time span, the process starts over. Since Bush’s term expires in just over a year, Weems therefore can stay in office for the remainder.