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McCain Says Fanning's Appointment Broke Law; Pentagon Disagrees

January 11, 2016 (Photo Credit: US Army//John G. Martinez)

WASHINGTON — The US Senate's confirmation process of Eric Fanning as Army secretary remained in limbo Monday amid a legal dispute between the Obama administration and Senate Armed Services Chairman John McCain.

At issue was whether a federal law that governs how the executive branch fills government vacancies would allow Fanning to serve as acting Army secretary while his nomination was pending. Fanning agreed to step down Monday after McCain pledged in a letter to the  Pentagon to halt his confirmation over the issue. 

“I wasn’t going to have a hearing while they were in violation of the law; That’s sort of fundamental to the way I do business,” McCain, R-Ariz., told reporters Monday. “You don’t put people in jobs until they are confirmed by the Senate. That’s pretty straightforward.”

No date has been set for McCain’s committee to hold a confirmation hearing for Fanning — a prerequisite before the full Senate votes on his nomination. McCain said the committee staff is reviewing the calendar for a suitable date.

“I’ll be glad to schedule his hearing and we’ll see what happens,” McCain said.

Army Undersecretary Patrick Murphy will serve as acting secretary in the interim. Fanning will serve as a special assistant to Defense Secretary Ash Carter.

There have been vacancies for months in the Army's top two civilian positions, secretary and undersecretary, amid personnel shuffling at the Pentagon during the waning months of President Obama's final term.

The job of Army undersecretary had been open since Brad Carson became the acting undersecretary of defense for personnel and readiness in April. Fanning was first tapped to serve as acting undersecretary of the Army in June, and was nominated to the secretary post in mid-September. Patrick Murphy, a Pennsylvania Democrat who served in the House from 2007 to 2011, was nominated to become Army undersecretary in early August. 

McCain, a frequent critic of the administration, said Obama’s appointment of Fanning as acting secretary, while Fanning was the nominee, breached the Federal Vacancies Reform Act of 1998 — a charge denied by the Pentagon.

“Mr. Fanning's designation as acting secretary of the Army was consistent with longstanding executive branch interpretation of the Federal Vacancies Reform Act,” Pentagon spokesman Lt. Col. Joe Sowers said in a statement. "Members of the Senate Armed Services Committee, however, expressed some concerns about that interpretation of the Act.  As a show of comity to address these concerns, Fanning has agreed to step out of his acting role to focus on achieving confirmation in the near future.”

A prohibition may not be explicit in the law. According to the SASC’s ranking Democrat, Rhode Island Sen. Jack Reed, there is a federal appeals court decision which, as a legal precedent, says the same person cannot be nominated for a position while acting in that position. Fanning's decision, Reed said, was to comply with the court decision.

Fanning served in many senior executive positions in each of the three military departments. Before he was nominated for secretary in September, he served as Carter’s chief of staff. He became acting secretary Nov. 1, replacing Secretary John McHugh, whose retirement was effective on the previous day.

Fanning, if confirmed, would be the first openly gay secretary of a military branch.

The office of Sen. Pat Roberts, R-Kan., said he placed a hold on Fanning's nomination in early November to protest President Obama's ongoing campaign to close the detention facility at Guantanamo Bay, Cuba, and transfer detainees to the United States.

For months McCain had delayed confirmations for some key civilian Defense Department nominees — Fanning among them — to protest Democratic rule changes in the confirmation process and Obama's threat to veto the 2016 defense policy bill. Congressional leaders have since reached a budget deal and Obama signed the disputed bill into law.

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