Are Reforms to the Federal Vacancies Act Still Needed Under President Biden?
Experts say “yes.” A House lawmaker plans to reintroduce a bill soon to make improvements.
A House lawmaker plans to reintroduce a bill that would reform the rules on acting officials serving in top federal roles, a change experts say is still necessary to address loopholes and weaknesses in the federal vacancies act.
The Trump administration had historic levels of acting officials as well as high turnover rates for top positions. There were particularly controversial situations with temporary leadership at the Homeland Security Department and Office of the Director of National Intelligence as well as acting inspectors general at the State and Transportation departments maintaining their other Senate-confirmed positions at the agencies. This all highlighted potential loopholes of the 1998 Federal Vacancies Reform Act, which outlines three classes of individuals who can serve in Senate-confirmed positions temporarily when an official “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” and specifies for how long.
Last May, Rep. Katie Porter, D-Calif., introduced the Accountability for Acting Officials Act, which would modify the 1998 law to limit the amount of time acting agency heads can serve, require acting officials to testify at least once every 60 days before Congress, require acting IGs to have relevant credentials and experience, and prevent presidents from appointing acting officials to lead the agencies without pertinent experience. Lindsay Reilly, Porter’s press secretary, told Government Executive the congresswoman plans to reintroduce the legislation soon.
Experts in administrative law and the executive branch told Government Executive that despite the fact that President Biden is now in office, there is still a need to amend the 23-year-old law, which was passed in response to then-President Clinton’s maneuvering with a top position at the Justice Department.
“President Trump’s expressed love of acting leaders exposed what had been previously unspoken: modern presidents depend considerably on acting officials;” however, Trump’s was “far more extensive and controversial than his predecessors,’ and generated more legal challenges,” said Anne Joseph O’Connell, a law professor at Stanford University who specializes in administrative law and the federal bureaucracy. “While I expect the Biden administration to rely on acting officials less than the Trump administration, there is still great need for reforms.”
Research from O’Connell upon which Government Executive previously reported shows that presidents since Reagan have relied on acting Cabinet officials (especially in their first and fifth years), yet unlike his predecessors, Trump had more acting secretaries than confirmed ones, as of February 2020.
O’Connell––who has a slew of her own suggestions for reforms to the vacancies act––said that while she would change minor things, Porter’s bill “is a great start.” Last year, top House Democrats, the National Federation of Federal Employees and several good government groups endorsed the legislation.
“Reforms are absolutely necessary even though Trump is not president,” but “nothing will happen unless both parties are dedicated to enacting reform,” said Kathryn Dunn Tenpas, nonresident senior fellow for the Governance Studies program at the Brookings Institution. “Generally speaking, I think that Congress is in a dysfunctional state and that there are not enough members of Congress willing to spend time on reform.”
This could be a bipartisan issue because “there is nothing partisan about leadership or about the advice and consent clause,” she said. “Making sure that nominees go through the Senate confirmation process enhances accountability and assures that the nominee is well suited to hold such a senior role in government. When presidents overlook [the vacancies act] and circumvent the Senate, they are effectively undermining the Founders’ intent, and doing so at the peril of the citizenry.”
"There are ways the current law isn't as clear as it could be and there are things the law didn't anticipate back in 1998," said a senior Democratic committee aide.
Max Stier, president and CEO of the nonprofit Partnership for Public Service, also stated that reforms are “absolutely” still warranted. “I think that the challenges that we saw in the last administration revealed weaknesses in the vacancies act and therefore they ought to be addressed, whoever is president,” he said.
He continued: “I don’t think you’re going to see the same behaviors by this administration as you did in the last, but I think that this administration faces some of the same problems,” such as having “way too many Senate-confirmed individuals.”
Noting that Porter’s legislation is in the works, he said he hopes there will be legislative action soon as “this is not a partisan question; this is really about good governance.”
Other possible reforms Stier proposed were: ensuring that the vacancies act still applies when an official is fired, clarifying who the first assistants (the first class of people who can serve as acting officials) are, and letting individuals be the acting official and nominee for the position concurrently.
“After the Trump administration, Democrats have many pressing issues to pursue. To be sure, the Vacancies Act is not among the most critical topics,” said O’Connell. “But I hope the Biden administration and members of Congress will work together in upcoming years to make some critical changes. Having a Democrat in the White House should help make these reforms attractive to Republicans as well.”
On May 3, the House Oversight and Reform Committee is holding a hearing, titled, “Improving Government Accountability and Transparency,” and changes to the vacancies act could come up then.
As Biden is heading toward his 100th day in office next Thursday, the full extent of his administration's use of the vacancies act and how it compares to that of his predecessors is not entirely clear yet.
Steve Vladeck, professor at the University of Texas School of Law and CNN Supreme Court analyst, pointed out on Twitter on April 20 that about three months into the administration, Congress and the president have yet to take up “statutory reforms of the executive branch that seemed both necessary and politically possible back in January.” He cited reforms to the vacancies act, along with reforms for inspectors general, whistleblowers and “putting more teeth into the Hatch Act,” which limits the political activity of government employees while on the job.
“Of course, the Democrats have a razor-thin margin in both chambers,” he tweeted. “But if there's ever going to be a time when we might reach any bipartisan consensus on circumscribing some of the president's (apparently very, very broad) powers, it seems worth finding out if now might be it.”
Update: This article has been updated to reflect the White House's tally of when the 100th day is.