Washington Update: An "Acting" Administration
In a surprise move earlier this week, Kirstjen Nielsen announced that she would leave her position as secretary of the U.S. Department of Homeland Security (DHS). She was confirmed to this post by the U.S. Senate just 16 months ago, on Dec. 5, 2017.
President Donald Trump has not yet announced his choice to permanently replace Nielsen, and there is a distinct possibility that no such announcement is forthcoming anytime soon. Though Senate Majority Leader Mitch McConnell (R-Ky.) has maneuvered to advance the administration’s executive branch nominees more quickly of late – he last week pushed through a change to the Senate’s rules that significantly reduced the amount of time required for debate on most presidential nominations – the president has chosen to fill dozens of position across the U.S. government with “acting” officials, a designation that means those individuals are serving temporarily and, accordingly, don’t have to withstand the process of obtaining the “advice and consent” of the Senate.
Indeed, shortly after Nielsen submitted her resignation letter to her boss, the White House announced Kevin McAleenan would step in as the acting head of DHS. McAleenan isn’t the only acting official at the department. The agency oversees the Secret Service, the Federal Emergency Management Agency, and Immigration and Customs Enforcement – all of which also currently have non-Senate confirmed, acting officials overseeing their operations.
McAleenan also joins Mick Mulvaney, the acting White House chief of staff, David Bernhardt, the acting secretary of the Interior, and Patrick Shanahan who became acting secretary of defense on Jan. 1, 2019 when Secretary Jim Mattis resigned. In total, almost 30 percent of the president’s cabinet is currently serving on a temporary, acting basis.
You might be thinking: under a system of government notorious for red tape – the Food and Drug Administration recently revised regulations regarding the acceptable size of an orange and the Federal Energy Regulatory Commission earlier this year painstakingly spelled out the process by which time is to be computed in the United States in the event their office is closed for inclement weather or as a result of a terrorist attack – aren’t there rules for how these senior positions can be filled? Of course there are.
Under the Federal Vacancies Reform Act of 1998, an acting head of an agency may serve up to 300 days from when the position was made vacant – but that’s only during an administration’s first year. That temporary term falls to 210 days in subsequent years of an administration. There’s an important caveat, however. If the president nominates someone for the position in question, the acting official may continue to serve in their role until such time as the Senate completes its consideration of the permanent replacement’s nomination. If that nominee fails to secure the consent of the Senate, the acting official gets another 210 days. And if another person is nominated and fails? Another 210 days. (That’s never happened, though. The longest period a person ever has served in an acting capacity at the top of an agency was Rebecca Blank, who was acting secretary of Commerce from June 11, 2012 to June 1, 2013 during the Obama Administration.)
According to The Washington Post’s Political Appointee Tracker, there are 20 top administration slots across the government that are either currently vacant or that have an acting official occupying the slot. There are four positions at the U.S. Department of Agriculture and the U.S. Department of Commerce where positions are unfilled or filled by an acting appointee and eight at the Defense Department, including Acting Secretary Shanahan. The Department of Education has three and the Department of Energy has one. The leaders of the Office of Management and Budget, the Small Business Administration, the Federal Aviation Administration, and the Food and Drug Administration also are all serving in an acting capacity.
The Post’s monitor only tracks the top four positions at all federal agencies – secretary, deputy secretary, undersecretary and assistant secretary – which all require Senate confirmation. The Post’s investigative reporters dug further into the federal bureaucracy, however, and found 1,050 political positions across the government are either vacant or held by someone in an acting capacity.
That is more than a quarter of the estimated 4,000 political positions across federal agencies the White House is responsible for filling. (In Beltway jargon, “political” appointees are individuals who will cease to serve in the government when a new president takes office. These employees are distinct from the hundreds of thousands of “career” employees – more colloquially referred to as “bureaucrats” – whose tenures are not tied to a particular administration.) It’s also more than the 20 percent of high-level jobs that President Bill Clinton filled with “acting” officials in his sixth year in office. (A figure for which Republican senators criticized the former commander in chief way, way back in the distant 1990s.)
According to Max Stier, president and CEO of the Partnership for Public Service, which operates the tracker with The Post, “This administration has been the slowest to fill top jobs in government and has had the largest turnover of senior positions of any recent administration.” To be sure, Stier also blames the Senate, which he said, “has been slow to confirm nominees.”
President Trump has defended his use of acting officials, arguing this method of management allows him more “flexibility.”
Perhaps, but the founders did worry about this “flexibility.” The New York Times talked to Paul Light, a professor of public service at New York University who explained, “The Senate grappled with this question in the very first Congress when it ordered George Washington to send nominations to the Hill at a reasonable pace … Senators rightly worried that presidents might use acting appointees to evade oversight and institutional prerogatives.”
The Trump administration might also want to check in with conservative Supreme Court Justice Clarence Thomas. The Times notes that, in a 2017 decision, Thomas argued there was no constitutional basis for having acting cabinet members and that there should be limits on a president’s power to use this mechanism.
Stanford law professor Anne Joseph O’Connell also questions why the president would even want to use this tool. As Time explains, O’Connell’s research indicates the ability to make it through the Senate confirmation process “strengthened the internal positions of Cabinet secretaries, who were able to move more quickly on their agendas.” In a 2009 article O’Connell wrote, “Temporary political picks have less political capital to spend externally and internally … Even proper appointees have to get up to speed at the start of their government service; therefore, frequent turnover among confirmed appointees also fosters agency inaction.”
One agency where the president clearly wants a leader with political strength: the Internal Revenue Service (IRS).
Five days ago, The Washington Post’s Aaron Blake noted that, while President Trump is “not a man in a hurry to fill top-level vacancies in his administration,” he has forcefully pushed for confirmation of the IRS’ chief counsel. In February the president even asked Senate Leader McConnell to consider this nomination before the nomination of Bill Barr to be U.S. attorney general. (Sen. McConnell did not comply. Barr was confirmed on Feb. 14, 2019.)
Why does Blake think the president is so interested in the IRS post? Because House Democrats have cited an obscure federal law to try to force the IRS to give them the president’s tax returns. The agency’s chief counsel will be in charge of fighting those efforts in court. Interestingly, until the president nominated a permanent chief counsel of the IRS last March, the position had been vacant for approximately six months. Why? The acting chief counsel of the IRS had been appointed in January 2017 and his 300-day clock under the Federal Vacancies Reform Act expired that November. Once President Trump sent a permanent nominee to the Senate for its consideration, the acting chief counsel was reappointed…temporarily, of course.