ETW Editorial: Release the OLC Opinion, ASAP
March 3, 2023|Jeff Davis
President Biden’s nomination of Phil Washington to head the Federal Aviation Administration is taking criticism on two separate tracks. The first has to do with the nominee’s qualifications, which is not that unusual. But the second issue is whether or not the law allows Washington to serve in the post at all.
As detailed last week in ETW, federal law requires that the FAA Administrator be “a civilian,” and when the FAA’s antecedent agency was first created in 1958, many of the people who wrote the law creating the Act interpreted it that mean that a FAA nominee could not even be a member of the “retired list.” Though Washington retired from the Army in 2000, he is still on the retired list and thus receives a pension and benefits.
On five prior occasions, Congress has resolved this problem by enacting special one-time laws waiving the “civilian” requirement for a specific nominee in advance of their confirmation by the Senate. But the chairman of the House Transportation and Infrastructure Committee and the ranking Republican on the Senate Commerce, Science and Transportation Committee wrote to President Biden yesterday to say that such a waiver law will not pass Congress this time. (The House chairman, if backed by the Speaker, has the power to keep a waiver bill from coming to the floor at all.)
This is a legal area that is not often explored. The thinking at the time appears to have been: what if a retired military person becomes FAA Administrator and is then recalled to active duty and given a direct order by a superior officer related to airspace management? The Pentagon could conceivably win any number of airspace conflicts with the civilian world in that manner.
The institutional suspicion against armed services participation in civilian government may seem strange today, but when the FAA Act was written in 1958, the U.S. was only seven years removed from President Truman firing five-star General Douglas MacArthur for disobeying a direct order. And it was just four years after the Army-McCarthy hearings.
The issue of whether or not the present nominee needs a waiver law depends on the meaning of the word “civilian” and how much stock one places in using legislative history to divine legislative intent.
Fortunately, there is an official U.S. government body in charge of coming up with legal opinions in situations like this: the Office of Legal Counsel at the Justice Department.
The FAA was created in the same year as NASA (1958), and the Space Act of 1958 contains a provision similar to the FAA provision. The Space Act says that the NASA Administrator has to be appointed “from civilian life.” In 2009, OLC issued a 12-page legal opinion as to whether or not being retired military on a pension meant being “from civilian life.”
The opinion looked at “the ordinary meaning of the phrase ‘from civilian life,’ use of the phrase in other statutes, practice under such statutes, and longstanding Executive Branch precedent interpreting the phrase and similar words.”
In that instance, OLC determined that “a retired military officer—and certainly one who has engaged in civilian pursuits after his retirement—is eligible for appointment as Administrator of NASA.” But this is not a 100 percent parallel to the FAA situation, because the laws are phrased differently and because there is legislative history, and practice under statute, present in the FAA case that does not exist in the NASA case.
Because of that, public debate on this important issue would be significantly enhanced if the Biden Administration were to release to the public the OLC opinion on this issue, if one exists (and we suspect one does, because if it doesn’t, that would mean incredible staff negligence somewhere along the line, because Washington was nominated last July and there has been low-level talk of the possible need for a waiver since late last year).
What does “civilian” mean? Let’s find out what the government’s in-house law firm thinks it means.
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