By Lisa Seachrist
WASHINGTON — A group of senators led by Majority Whip Don Nickles (R-Okla.) is blocking the nomination of Jane Henney to serve as FDA commissioner, because of perceptions that the University of New Mexico administrator would blur the lines separating the legislative and executive branches.
A Nickles spokesperson said that "several senators have concerns that she will legislate by regulation. And that is clearly the purview of Congress."
The move appears likely to postpone Henney's nomination, which was proceeding smoothly, until the start of the next Congress.
The Nickles spokesperson noted that some senators see Henney's likely action on the French abortion pill RU-486, as well as her perceived desire to regulate tobacco, as usurping legislative authority from Congress.
Henney, serving as vice president for health sciences at the University of New Mexico, in Albuquerque, was the deputy commissioner of operations at the FDA from 1992 to 1994. At her Sept. 2 confirmation hearing with the Senate Labor and Human Resources Committee, Henney repeatedly assured Congress that she would abide by final judicial or congressional action as it pertained to FDA's jurisdiction over tobacco.
While the issue of RU-486 was broached during her confirmation hearing, Henney was recommended by the Labor and Human Resources Committee on a voice vote and appeared headed toward confirmation.
"It is unfortunate that Sen. Nickles has decided to take this tack," said Jim Manley, an aide to Sen. Edward Kennedy (D-Mass.), who sponsored Henney's nomination. "Instead, he should allow the Senate to debate this issue under a shortened time frame and give an 'up' or 'down' vote on the nominee."
Nevertheless, Manley said, in the crush of business facing the Senate before it adjourns, an attempt will be made to act on several nominees as a group. The administration and Henney's supporters will make every effort to ensure that her name is among those nominees, Manley said.
If the Senate fails to confirm Henney's nomination before adjourning, the nomination will be sent back to the White House, where the administration will have to resubmit her nomination when the 106th Congress convenes in January.
At that point, the Senate Labor and Human Resources Committee may choose to conduct more hearings, have a full mark-up of the matter, or relay the nomination to the Senate floor in a pro forma fashion. The results of the November elections and the subsequent composition of the committee will likely determine which action the committee takes.
In addition, President Clinton could opt to make Henney a recess appointment, in the days between the 105th Congress' adjournment and the start of the 106th. However, such a move is considered an aggressive act of the executive branch against the legislative branch, and could jeopardize Henney's subsequent confirmation once Congress resumes. *