Vacancies Act Deadline Looms for Many of Biden’s Acting Officials, But the OMB Director Is an Exception
A statutory provision allows the deputy director of the management and budget office to serve as the agency’s acting leader indefinitely.
In less than a month, the clock will run out for some of the Biden administration’s acting officials, but this deadline does not apply for others, including the acting director of the Office of Management and Budget.
Shalanda Young has been serving as OMB acting director since she was confirmed as deputy director on March 23. The White House has not put forth a nominee for director since Neera Tanden withdrew in March, and is facing a historic delay in getting a director confirmed.
Young is a veteran staffer of the House Appropriations Committee and many lawmakers have argued she should be nominated for permanent director. However, in the near future, she “will be taking time away from the office to be with her daughter after she’s born,” said an OMB spokesperson. “During that period, she will delegate day-to-day responsibilities to Deputy Director for Management Jason Miller while she continues to hold the position of acting director.”
While November 16 is the deadline to replace some acting officials under the 1998 Federal Vacancies Reform Act, “there is a statutory provision for the deputy director of OMB to be the acting director and that specific permission has no time limit,” Anne Joseph O’Connell, law professor at Stanford University and expert in the federal bureaucracy, told Government Executive.
“Almost all [of the approximately 1,200 positions that require presidential appointment and Senate confirmation] in the 15 Cabinet departments and executive agencies (such as the Environmental Protection Agency) are included” in the act, said a 2019 report from O’Connell. “Commissioners and members of multi-leader independent regulatory commissions and boards (such as the Securities and Exchange Commission) do not, however, typically fall under the act’s purview. If a specific member of an independent entity, however, has statutory duties separate from the multi-member board, the act may apply to those separate functions.”
Agencies under the act “have 300 days at the start of a new administration to use acting officials in vacant Senate confirmed positions,” O’Connell told Government Executive. Then once that period ends, “there are several possibilities to kind of keep that job functioning.”
One option is that the acting officials can continue serving if there is a pending nomination. “With [a] pending nomination, you can have an acting official in a vacant-Senate confirmed position for over two years,” O’Connell said.
Another possibility is that if the 300 days runs out and there is no pending nominee and the position is governed by the Vacancies Reform Act, you “can delegate non-exclusive duties of that vacant position downward,” which could be the same person who was “acting” before, said O’Connell. There are “very few duties that are exclusive to the position” and “can’t be delegated,” she said.
Finally, for some agencies and positions there are specific provisions that allow acting officials to serve indefinite time periods, which is the case with OMB.
The nonprofit Partnership for Public Service and The Washington Post are tracking the nomination and confirmation process for 805 major positions. As of Wednesday afternoon, 160 nominees had been confirmed, 236 were in the process of being considered by the Senate, 13 were waiting on a formal nomination and 187 of the positions had no nominee yet.
Besides the OMB vacancy, there are also no nominees for Office of Information and Regulatory Affairs administrator and Food and Drug Administration commissioner, though the White House is reportedly close to announcing an FDA pick. Also, the National Institutes of Health director position will soon be vacant as Dr. Francis Collins announced earlier this month he’s stepping down at the end of the year.
The Trump administration had historic levels of acting officials as well as high turnover rates for top positions. There were particularly controversial situations for some top roles. Government Executive reported back in April that experts, such as O’Connell, argue changes to the Vacancies Reform Act are still needed despite the fact that President Trump is no longer in office.
Kathryn Dunn Tenpas, nonresident senior fellow for governance studies at the Brookings Institution, who is tracking the confirmations process, told Government Executive that in recent history, “if you look at executive nominations, the rate of confirmation is much slower, there is an inexorable trend downward from George W. Bush through the present.” Her research excludes confirmations for military and judicial positions, seats on commissions, and U.S. attorneys.
She said she doesn’t believe the blame for current vacancies is on the Biden administration’s side because there are “a plethora of nominations that are in the midst of being considered” and the Senate has other priorities. Meanwhile, she pointed out that Biden's judicial nominees are getting confirmed at a pace that hasn’t been reached since the Nixon administration.
“We are concerned about the obstruction of our nominees,” said White House Press Secretary Jen Psaki during the briefing on October 18. “And while we have made progress over the course of the last several months—back to the transition, even— of putting forward qualified nominees to serve in key and vital positions across government ... there have been unprecedented delays, obstruction [and] holds on qualified individuals from Republicans in the Senate.”
She noted that “a huge number of our nominees pass with overwhelming majorities of Democrats and Republicans” and “can be voted through by unanimous consent.” However, there has been much “obstruction,” such as for national security, Defense and State department roles. Psaki said the blame is “clear” and “frustrating.” It is also “something that we wish would move forward more quickly,” for which there is “historical precedent.”
At another point in the briefing, Psaki was asked about the impact of not having major Treasury Department political appointees in place as the Biden administration works on its infrastructure and social spending packages. Of the 29 Treasury positions the Partnership and Washington Post are tracking, four are filled by confirmed officials, 10 nominees are being considered by the Senate, one pick has been announced, six are either holdovers or termed positions, and eight have no nominees.
“There's no question, first, that there are career employees in every agency, including the Department of Treasury, who have vast experience and play vital roles at this moment in time,” said Psaki. “It is also true that the preference of any president is to have the individuals they've nominated—qualified individuals who have unquestionable credentials—serving in these roles. That is the preference. That does make things easier, and that is what we would like to see moving forward.”