House Democrats Look to Limit Who Can Temporarily Lead Federal Agencies

Acting leaders of federal agencies would serve for a maximum of four months under a new measure from Democratic House leadership that would seek to close many of the loopholes that have allowed President Trump and his predecessors to circumvent federal vacancy laws.  

The Accountability for Acting Officials Act (H.R. 6689) would seek to prevent presidents from naming individuals to positions for the sole purpose of elevating them to a vacant Senate-confirmed role in an acting capacity. Trump has exploited this “first assistant” loophole on multiple occasions, altering lines of succession so an individual outside of government could head up an agency without the Senate’s advice and consent. The bill, introduced by Rep. Katie Porter, D-Calif., and cosponsored by every House committee chairman, would require all first assistants to have already served in their roles before the position to which they are being elevated went vacant. 

It would ensure the 1998 Federal Vacancies Reform Act superseded any agency-specific succession laws and mandate that acting officials can only serve in their roles for 120 days. The measure would require acting leaders to testify to Congress every 60 days. 

Trump has faced criticism for flouting or exploiting the intent of vacancies law with his appointments for director of national intelligence, head of U.S. Citizenship and Immigration Services, attorney general and others. At USCIS, a federal court has ruled that Ken Cuccinelli is illegally serving as its temporary director. Trump has had more acting Cabinet officials than confirmed ones, unprecedented since at least President Reagan. The Trump administration has overseen an 85% turnover rate among upper-level administration officials, which is much higher than that for any other presidential administration in the past 40 years, according to a recent analysis by the Brookings Institution.

Trump himself has been open about his preference for temporary officials over permanent nominees who require congressional sign off. 

“I like acting because I can move so quickly,” Tump said last year. “It gives me more flexibility.”

Lawmakers said Trump’s approach is harming the government's response to the novel coronavirus pandemic. 

“The current crisis highlights how important it is that government leaders are qualified and answer to the American people,” Porter said. “President Trump has shown time and again that he doesn't believe in the accountability that comes from our constitutionally required nomination process. Instead, he's consistently filled his administration with loyal, often unqualified followers—and the American people have to live with the consequences.”

The measure would place strict requirements on appointments for acting inspectors general, seeking to ensure those individuals are properly qualified. Trump has dismissed several key IGs in recent weeks. 

“The administration’s longstanding failure to fill critical vacancies across the federal government—including vacancies that go back several years—has deprived agencies of stable, vetted leadership and aggravated the current pandemic crisis,” said Rep. Carolyn Maloney, D-N.Y., who chairs the House Oversight and Reform Committee. “This bill would institute critical reforms to require stability, expertise, and accountability when it is necessary for an administration to fill a vacancy temporarily.”

A group of more than a dozen good government and federal employee advocacy groups has endorsed the measure, saying it would close "increasingly problematic loopholes" in the existing vacancies law.

“We have seen an increasing and excessive use of temporary leadership in positions that require Senate confirmation,” the organizations said. “While it is critical to have a structure set up to temporarily fill the leadership vacuum upon a vacancy, that structure should only be used as a stopgap measure while awaiting a qualified nominee to be confirmed.”