Worst-case scenario is that decisions by acting executives are rendered invalid.
New presidential administrations get a break under the 1998 Federal Vacancies Reform Act: an extra 90 days to fill top agency jobs in addition to the 210-day maximum for which acting officials can fill in.
But according to the latest tracker by The Washington Post and the Partnership for Public Service, Trump has submitted no nominee for 396 of the key agency posts, has nominated 104 people and has had only 45 confirmed.
Doing the math, that could mean that—barring a huge acceleration in background checks, nominations and Senate confirmation votes—a clash could come sometime in mid-October. Specialists confirmed to Government Executive that agencies, among them the Justice Department, are scrambling to figure out who has decision-making authority at a time of temporary appointees.
The legal and managerial damage looming was brought home in February 2016, when the inspector general for the Office of Personnel Management determined that then-acting OPM Director Beth Cobert was not actually eligible for the job. Based on a reading of an August 2015 Supreme Court ruling in SW General Inc. v. National Labor Relations Board, Cobert’s decisions at OPM were null and subject to court challenge.
“More than 90 percent of key Senate-confirmed executive branch policy and management positions still do not have a politically appointed leader in place, leaving acting officials temporarily in charge and without full authority to make long-term decisions,” said Max Stier, CEO and president of the nonpartisan, nonprofit Partnership for Public Service.
“Under provisions of the Vacancies Reform Act, the time limits for many of these acting officials to continue serving are expiring, but can be paused when the president submits a nomination to the Senate,” Stier told Government Executive. “The onus now is on President Trump to step up the pace of nominations and get his leadership teams in place across the government.”
Terry Sullivan, a University of North Carolina at Chapel Hill political scientist who tracks agency appointments as executive director for the nonprofit White House Transition Project, said, “When you are as unprepared to make appointments as the current administration, you eventually leave a great portion of the federal establishment without a working head. We often say that the lack of these properly political appointments with their Senate confirmations is that they can’t make new policy in keeping with the election’s decisions, but this case raises the possibility that they can’t even carry out their authorized functions. That DOJ is working the issue is not comforting, as it must actually be pretty significant out there among the regulatory agencies, at least.”
John P. Mahoney, an attorney with a federal employment specialty, said the administration is “at great risk of violating” the Vacancies Act, noting that the law allows vacancies to be filled by a temporary acting official, or the “first assistant” takes over, or the president may appoint a Senate-confirmed officer from another agency, or a “senior employee from the same agency.” An acting official’s term may be extended if the president nominates him or her, subject to the 2015 Supreme Court’s restrictions.
Actions taken by officials who serve in violation of the vacancies law, Mahoney added, “shall have no force and effect” and may not be ratified, although that depends on whether the actions are exclusive to the office at issue or whether they can be delegated to other appropriate officers and employees in the agency.”
Attorney Debra D’Agostino, founding partner of the Federal Practice Group, stressed that “there is some uncertainty in what happens if the Senate just sits on a nomination. Justice Department guidance from the 1990s says that as long as a president has nominated someone, the time frame doesn’t matter, but that’s not actually written in the statute,” she said. “We’re getting into a gray zone.”
The 2015 Supreme Court ruling was basically saying the “law says what it says, follow it,” she added. “The way the law is written presumes some action by the Senate.” D’Agostino said the Senate is sitting on nominations more than she has ever seen before, in part because many of Trump’s people “have potential financial conflicts and it’s taking a longer time for ethics reviews.”
Similarly, if the Senate fails to act, a president can “skirt around the whole advice and consent role” to a point. An example is Noel Francisco, the Jones-Day lawyer Trump nominated as solicitor general but who has been at the Justice Department working, with some restrictions, on the travel ban. (An outside legal group has questioned this.)
Violations of the Vacancies Act are tracked by the Government Accountability Office, which relies mostly on mandatory reporting from agencies, news reports and tips. But the process for enforcement appears to be slow. Two violations currently cited, one from the Energy Department and another from the State Department, date from several years back in the Obama administration and were posted this March. They’re both resolved.
Mathew Dull, an associate professor at Virginia Tech’s School of Public and International Affairs, is following the issue with concern. “Congressional Republicans thought vacancies were a problem when they passed the first Vacancies Act in 1868, and again in 1998, when the law was amended,” he said. “On both occasions and many in between Congress sought to prevent agencies from circumventing Senate advice and consent by maintaining acting officials in appointee positions,” Dull added. “On the other hand, recent presidents of both parties have ignored Vacancies Act limits placed on acting officials by claiming other statutory appointment authorities.”
CORRECTION: This article has been corrected to with the proper name of the University of North Carolina at Chapel Hill.