Former Under Secretary for Food, Nutrition and Consumer Services Kevin Concannon visits a school lunch program, Wednesday, October 12, 2011. The position, vacant since January 19, 2017, has authority over $112 billion in programs that impact tens of millions of Americans. (USDA Photo by Lance Cheung)
Absent an unexpected flood of nominations by the White House, a wave of high-level government positions that require Senate confirmation will soon become officially "vacant." Beginning today (November 16), these positions—with more being added over the course of the next several weeks—will lose much of their legal authority as they hit the time limit for how long they can be run by “acting” officials without a nomination.
Once the legal time limit is reached, decisions made by acting officials could be voided if challenged in court. Should a nomination be submitted, acting officials will regain their legal authority, with the timer starting over again if the nomination is rejected or withdrawn. Under the Federal Vacancies Reform Act of 1998, the time limit can only be reset twice in this way. The law was designed to close a loophole where administrations could bypass the Senate confirmation process by filling positions with long-term, but technically “acting” officials.
President Trump has said that, “in many cases, we don't want to fill those jobs.” While he is not alone in believing that many political appointees are redundant or inefficient, leaving the positions empty makes it harder for the Trump administration to steer agencies in a different direction. Additionally, many of the current vacancies have critical responsibilities ranging from determining national security policies to stewarding hundred-billion-dollar budgets.
Agencies have had to deal with this situation before, but not to the same extent. Given the Trump administration’s reluctance to rely on holdovers from the previous administration and the slow pace of nominations, agencies will have a bigger headache this year than they did in either George W. Bush’s or Barack Obama’s first years. In remarks to E&E News, the top lawyer from the Environmental Protection Agency and a spokesperson from the Department of the Interior downplayed impacts of the Act, with the lawyer stating, “I’m not worried about legal vulnerabilities….We know how to lead the agency and the programs, notwithstanding the limitations on who can be acting at a particular time.” The Interior spokesperson made similar remarks, saying that they have taken “sufficient administrative actions to ensure that the functions, duties, and responsibilities of the positions are performed.”
The wording of the Federal Vacancies Reform Act allows some wiggle room for acting officials after they reach the time limit. For example, once the time limit is reached, only the head of the department can any perform duties that either a law or regulation assigned to the position. If, however, the responsibilities belong to a higher position and have been delegated down, the acting official can continue to exercise that authority.
If the acting officials perform their duties without legal authority, any decision they make is considered legally void and can be successfully challenged in court. Last year, an Inspector General found the acting Director of the Office of Personnel Management, Beth Cobert, to be violating the act, stating in a letter that “any actions taken by you… are void and may not be subsequently ratified.” It is unclear, though, if anyone challenged any of Cobert’s actions in court.
The law also requires agencies to report vacancies to the Government Accountability Office (GAO) when they occur. The GAO publishes that information online, but by looking at their database, it is clear that agencies are not consistently reporting the required information. For example, the database does not list any Department of the Interior vacancies despite Interior websites stating that many vacancies exist. This makes it an imperfect source for determining exactly how many vacancies will be affected by the upcoming time limits.
Non-government sources of information, such as the Partnership for Public Service’s nominations tracker, help fill in gaps, but also have limitations: for instance, that database states there is no nominee for the Director of the National Counterterrorism Center. While true, it lacks context since that position is still occupied by an Obama holdover who was previously confirmed by the Senate. That database also only looks at just over 600 positions, although there are, as of last year, 1,212 positions requiring Senate confirmation.
Some of the affected positions have yet to be filled because they may not exist much longer, like the Under Secretary for Rural Development. Some agencies are working on slimming down their organizational charts and eliminating positions, but given that many of these plans have yet to be made public, it is unclear how many fall into that category.
While it is important for vacancies to be filled, it is also critical that the individuals nominated are qualified and have the character and judgment that is needed in the government’s leadership ranks. That is one reason the Constitution requires the Senate to consent to certain appointments. In fact, the Federal Vacancies Reform Act was created when President Bill Clinton used “acting” officials to bypass a Republican-dominated Senate, resulting in sometimes controversial figures doing important work, but never being confirmed by the Senate.
Here are four examples of positions where the time limit for acting officials is about to be reached, and another four examples of positions that have been left vacant, without even an acting official:
With an Acting Official
Department of Veterans Affairs
Under Secretary for Benefits: This position has been vacant since October 16, 2015, and an acting director has performed the duties of the position since then. The legal time line started anew at the beginning of 2017 when a nomination was not acted on by the last Congress. Depending on when the previous nomination was considered closed and the timer started, this position may have already lost its legal authority a week or two ago. The position oversees a budget of roughly $97 billion and over 20,000 employees in the Veterans Benefits Administration. Some of the programs for veterans include pensions, insurance, employment transition programs, education, and home loan guaranty. The position has enormous responsibilities and has the potential to help or hurt millions of veterans who rely on it.
Department of Homeland Security
Assistant Secretary/Director of Immigration and Customs Enforcement (ICE): This position has been vacant since January 20, 2017. An acting director has performed the duties of the position since then. The current Acting Director, Thomas Homan, will hit the Act’s time limit this week. The Director of ICE runs the largest investigative agency in the Department of Homeland Security, with a budget of $6 billion and roughly 20,000 employees. ICE is in charge of cross-border crime like smuggling and illegal immigration, including relevant crimes committed over the internet.
Department of the Interior
Director of the Bureau of Land Management: This position has been vacant since January 20, 2017. An acting director has performed the duties of the position since then. Michael Need, the current Acting Director, will reach the Act’s time limit this week. The position oversees the management of the nation’s vast public lands, stewarding natural resources such as mineral deposits, underground oil fields, and timber. The position manages a budget of $1.2 billion, and has a great deal of influence over everything from energy development to livestock grazing to logging. The previous Director also had to deal with the 2014 Bundy standoff in Nevada and the 2016 standoff in Oregon’s Malheur refuge.
Director, Fish and Wildlife Service: This position has been vacant since January 20, 2017. An acting director has performed the duties of the position since then. The current Acting Director, Greg Sheehan, who was appointed to the newly created “Principle Deputy Director” position on June 5, will reach the Act’s time limit this week. The position manages a small budget of just under $3 million, but has a great deal of authority over enforcing federal wildlife laws, protecting endangered species, and conserving and restoring natural habitats.
Without an Acting Official
Department of Homeland Security (DHS)
Undersecretary for National Protection and Programs Directorate: This position has been vacant since January 20, 2017, without an acting substitute. This position is responsible for defending the country’s physical and cyber-critical infrastructure from both natural disasters and terrorism. The position has immense responsibilities, including overseeing a $3 billion budget and 18,000 employees. During a time when there is a growing cyber threat to the nation and an increasing number of natural disasters, this position is very important.
Department of Labor
Assistant Secretary for Veterans' Employment and Training Service: This position has been vacant since January 20, 2017, without an acting substitute. With an annual budget of over $271 billion, the position is responsible for providing veterans, service members, and their spouses with employment resources and expertise, defending their employment rights, and promoting opportunities for them. Some of the specific programs this position manages include readjustment counseling, apprenticeship, on-the-job training programs, Jobs for Veterans State Grants, and the Homeless Veterans’ Reintegration Program. The position also plays a significant role in administering the “veterans preference” for federal jobs. With roughly 20 million veterans in our nation, many of whom are disabled or homeless, it is critical that we have someone in charge of advocating on their behalf.
U.S. Department of Agriculture (USDA)
Under Secretary for Food, Nutrition, and Consumer Services: The position has been vacant since January 19, 2017, without an acting substitute. This under-the-radar position has authority over $112 billion in programs that impact tens of millions of Americans. The Supplemental Nutrition Assistance Program, Special Supplemental Nutrition Program for Women, Infants, and Children, and 13 other federal nutrition assistance programs are all supervised by this position. The under secretary is also responsible for preventing fraud and managing the massive budget efficiently.
Department of State
Under Secretary for Arms Control and International Security Affairs: This position has been vacant since January 27, 2017, without an acting substitute. According to the State Department, this official “manages global U.S. security policy, principally in the areas of nonproliferation, arms control, regional security and defense relations, and arms transfers and security assistance. This entails overseeing the negotiation, implementation, and verification of international agreements in arms control and international security. Other specific responsibilities include directing and coordinating export control policies and policies to prevent missile, nuclear, chemical, biological, and conventional weapons proliferation.” Given tensions with North Korea over its nuclear weapons program and this administration’s skepticism regarding Iran’s compliance with an agreement curbing its nuclear program, this position’s portfolio of responsibilities are especially important.
These are only a small handful of the positions where qualified leaders are needed. In recent months, the Trump administration has picked up the pace of nominating people to fill slots, but more needs to be done. If President Trump is serious about tackling waste and increasing accountability in the government, he is going to need to fill these leadership positions.