The Biden administration has argued limitations on "acting" officials reset when a new president is inaugurated.

The Biden administration has argued limitations on "acting" officials reset when a new president is inaugurated. Chip Somodevilla / Getty Images

3 Biden Officials Are Serving Unlawfully, a Watchdog Rules

GAO continues a standoff with the Biden administration over the rules of agency leaders serving in temporary capacities.

The government’s top watchdog on Wednesday determined the Biden administration allowed five appointees to serve unlawfully, three of whom are still in their positions.  

The Government Accountability Office’s legal decisions mark an escalation of the legislative branch agency’s disagreement with the executive branch over the proper interpretation of a 1998 law that sets the rules for government leaders serving in temporary positions. At issue is whether those limitations on “acting” officials reset when a new president is inaugurated, as the Biden administration has said they should. GAO said that interpretation is ignoring the letter of the law and flagged the violations for Congress and the White House. 

The Federal Vacancies Reform Act lays out several scenarios for who can serve in an unfilled position normally requiring presidential appointment and Senate confirmation. Presidents generally can name someone to such positions in an “acting” capacity for 210 days after they become vacant or 300 days after inauguration. Officials can serve in acting capacities while a permanent nomination is pending, and for 210 additional days after a nomination is withdrawn or rejected. The law only allows for the latter timetable in two instances for each vacancy, however. That means if Congress rejects a nominee, allows a nomination to expire at the end of a congressional session or the person withdraws from consideration on two separate occasions, the position must remain vacant with no one serving in it even on an acting basis. 

GAO created the precedent in a decision last year regarding the Defense Department’s inspector general that the “two nomination rule” held true even if they spanned multiple presidencies. The Justice Department followed that up with a legal opinion rejecting GAO’s logic, arguing the limit on acting officials resets with each new president. GAO launched a review of all of Biden’s acting officials and found five instances in which the administration was out of compliance with its new interpretation, leading to Wednesday’s decisions. The auditors specifically said Justice’s opinion was incorrect and should be ignored. 

The positions in question were the acting director of Immigration and Customs Enforcement, the acting controller at the Office of Management and Budget, the acting director of Justice’s Office of Violence Against Women, the acting general counsel at the Federal Labor Relations Authority and the acting assistant administrator of the Asia Bureau at the U.S. Agency for International Development. 

GAO is concerned only with officials improperly using the term acting, not whether they are effectively serving in that role. Therefore, when ICE this week changed Tae Johnson’s designation from “acting director” to “senior official performing the duties of director,” the auditors said ICE was no longer in violation of the vacancies act. It reached a similar conclusion when USAID altered Ann Marie Yastishock’s title last year. ICE has gone through eight acting leaders since it last had a confirmed director in 2013. 

The remaining violators have been serving unlawfully since November 2021, GAO found. The consequences for its findings are limited, as GAO’s work ends upon forwarding its decisions to Congress. Interested parties could file lawsuits against the agencies, looking to invalidate decisions and policies issued by those serving improperly. Shirley Jones, GAO’s managing associate general counsel, said her agency does not believe “any actions taken by the identified officials are invalid pursuant to the vacancies act.”

Good government organizations have frequently decried allowing any agency to languish without permanent leadership, noting it deflates workforce morale, leaves the agency without a voice in key conversations and leaves “acting” heads without the full authority to run an organization.

OMB, whose acting Controller Deidre Harrison was flagged by GAO, said it was bound by the Justice opinion and Harrison was in compliance with it.

“We respectfully disagree with GAO’s conclusion,” an OMB spokesperson said. “DOJ’s Office of Legal Counsel concluded in a recent public opinion that, under the Federal Vacancies Reform Act, a change in administrations restarts the timing sequence for acting service in a position that was vacant on inauguration date.”

GAO acknowledged its interpretation of the law puts new presidents in an unfair position as they are vulnerable to the failures of their predecessors to get appointments through, but said it must interpret the law as written. 

“Past nominations may disadvantage a newly inaugurated president by limiting the acting service period in the new administration,” GAO General Counsel Edda Emmanuelli Perez said. “However, these concerns cannot override the plain meaning of the Vacancies Act’s provisions.”

Anne Joseph O'Connell, a law professor at Stanford University and an expert on federal vacancy law, said she sided with the Biden administration and its legal opinion from last year. The two nominations rule should restart for each new president, she said.