As we told you last month, as of December 8 the US Postal Service will no longer have a functioning Board of Governors. That’s the day when the term of James Bilbray, the sole remaining presidential appointee on the board, finally ends. While President Obama has made several appointments to the BOG, they have been blocked by Senator Bernie Sanders.
The USPS board has not had a legal quorum for two years now, and has been governed by a slightly dubious “Temporary Emergency Committee” since then.
Now the USPS Office of Inspector General has issued a report on USPS Governance, calling attention to the very serious consequences of the absence of a functioning board- not the least of which is the fact that both the PMG and IG will no longer have anyone to report to- and there is no one with the statutory authority to remove either of them! In the report, the OIG lists nine important functions that cannot be performed without the BOG:
Things Only the Governors Can Do
While the Board of Governors can delegate many things to the Postmaster General, there are items that, by law, only the presidentially appointed Governors can do. These include, but are not limited to
- Appointment, compensation, term of service, and removal of the Postmaster General
- Compensation of the Deputy Postmaster General
- Establishment of rates and classes for competitive postal products
- Authorization of rate and fee changes for market dominant postal products
- Authorization of a request to the PRC to add, remove, or reclassify products
- Authorization of a notice to the PRC of substantive changes to product descriptions in the Mail Classification Schedule
- Appointment and removal of the Inspector General31
- Transmission of the OIG’s Semi-Annual Report to Congress
- Selection of a firm to conduct required USPS financial audits
These tasks cannot be legally performed if there are no sitting independent governors to authorize them — and this will happen on December 8, 2016, unless new governors are confirmed or the law is changed.32 This would mean that the Postmaster General’s and Deputy Postmaster General’s compensation would freeze and they could not be removed or replaced, all postal rates/fees and product classifications would freeze, no products could be introduced or substantively changed, a new inspector general could not be appointed, the OIG’s Semi-Annual Report to Congress could not be issued, and USPS could not hire a new auditor to conduct the required financial audits. If someone at the Postal Service were to act on these matters, it would be done without
statutory authority and subject to legal challenge.
Additionally, the absence of governors could raise larger issues. As part of the executive branch, the Appointments Clause of the Constitution requires the Postal Service to be led by principal officers who are appointed by the president with the advice and consent of the Senate.33 The Governors fulfill that role, as was confirmed by the Ninth Circuit U.S. Court of Appeals.
With no sitting governors, the Postal Service’s constitutional authority to take certain actions could be in question. This would be an unprecedented situation.