Amidst EV-Fueled Auto Strike, Sen. Cruz, Colleagues Blast Biden for Allowing Rejected Radical NHTSA Nominee to Continue Leading Agency

Letter

Dear President Biden:

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,"1 including the NHTSA administrator, as NHTSA's authorizing statute makes clear.2 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

1 U.S. Const. art. II, § 2, cl. 2.
2 49 U.S.C. § 105(b).

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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."3

Because vacancies necessarily occur in positions that require Senate confirmation,
Congress has long provided for a legal avenue through which someone may serve as a
temporary, "acting" officer.4 The Vacancies Act allows the President to "direct an officer or
employee of [an] Executive agency to perform the functions and duties of the vacant office
temporarily in an acting capacity" for a prescribed time period.5 Yet the Vacancies Act expressly
limits whom the President can appoint as an acting officer. It provides that the President cannot
appoint a person as an acting officer if: (A) in the 365 days prior to the vacancy arising, "such
person" did not serve for at least 90 days "in the position of first assistant to the office of such
officer" and (B) the "President submits a nomination of such person to the Senate for
appointment to such office."6 The Supreme Court has stated that this provision "is clear,"
holding that it "addresses nominations generally, prohibiting any person who has been
nominated to fill any vacant office from performing that office's duties in an acting capacity."7
This prohibition, which survives a withdrawal of a nomination, makes good sense: otherwise the
President could do an end run around the Senate's constitutional advice and consent authority by
appointing a person to serve in an acting capacity after the Senate has rejected her nomination or,
as here, after the President has withdrawn a nomination to avoid a formal Senate vote of
rejection.

Yet you sought to do exactly that by naming Ms. Carlson as acting administrator of
NHTSA. You cannot appoint Ms. Carlson as acting administrator under the Vacancies Act
because in the 365-day period preceding NHTSA Administrator Steven Cliff's resignation on
September 12, 2022, Ms. Carlson did not serve in the position of first assistant to the NHTSA
administrator for more than 90 days8 and you had previously submitted her nomination to be
NHTSA administrator to the Senate.9 Therefore, she cannot lawfully serve as acting
administrator.

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

3 Edmond v. United States, 520 U.S. 651, 659--60 (1997) (quoting Buckley v. Valeo, 424 U.S. 1, 125 (1976)).
4 See, e.g., Doolin Sec. Sav. Bank v. Off. of Thrift Supervision, 139 F.3d 203, 209--10 (D.C. Cir. 1998) (discussing vacancies legislation dating back to 1792).
5 5 U.S.C. § 3345(a)(3).
6 § 3345(b)(1)(A)--(B).
7 NLRB v. SW Gen., Inc., 580 U.S. 288, 305, 304 (2017) (emphasis added).
8 The "first assistant" to the NHTSA Administrator is the Deputy Administrator. See 49 U.S.C. § 105(b); 49 C.F.R. § 501.4(a). During the relevant time period, Ms. Carlson served as NHTSA Chief Counsel, not as Deputy Administrator. See NHTSA Organizational Chart -- UPDATE, July 2022, National Highway Traffic Safety Administration (July 22, 2022), https://www.nhtsa.gov/sites/nhtsa.gov/files/2022-08/NHTSA_OrgChart17x11_July2022_072222_v2-web-tag.pdf (indicating Carlson was Chief Counsel and NHTSA Deputy Administrator was "vacant").
9 See note 1, supra.

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unlawfully appointed as an acting official "shall have no force or effect."10 Moreover, such
invalid actions "may not be ratified" after the fact by a subsequent administrator.11 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."12 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.

Sincerely,

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