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The Dangers of Chronic Federal Vacancies

Unconstitutional Appointments as the New Normal
(Illustration: CJ Ostrosky/POGO)

President Trump told reporters earlier this year that he wasn’t in a hurry to replace missing members of his cabinet. Instead, he said, he was content to name acting officers rather than going through the process of Senate confirmation. The President was responding to questions from reporters about several high-profile vacancies in his administration. He acknowledged: “I sort of like ‘acting,’ it gives me more flexibility; do you understand that? I like ‘acting.’”

While it may be unusual for a sitting president to admit publicly that they prefer acting over Senate-confirmed officers, presidential manipulation of the Vacancies Act is not uncommon.

The appointment of acting officers is controlled by the Federal Vacancies Reform Act of 1998 (Vacancies Act). First passed in 1868, the Vacancies Act was Congress’s way of finding a compromise between the constitutional mandate that the president nominate and the Senate vet candidates for certain high-level executive jobs and the realities of needing to keep offices functioning between changes in leadership.

There are about 1,200 federal government jobs that require nomination by the president and confirmation by the Senate. These offices include positions like heads of agencies, their deputies, and heads of sub-divisions or components within agencies. For example, within the Department of Veterans Affairs, the secretary, deputy secretary, chief financial officer, inspector general, undersecretary for health, general counsel, and several assistant secretaries like the assistant secretary for the Office of Accountability and Whistleblower Protection all require Senate confirmation.

The Vacancies Act comes into play any time there is a “vacancy” in one of those positions. Under the law, a vacancy occurs when an officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” When that happens, the Vacancies Act controls who can fill in, and how long they can perform that work under the title of “acting.”

The law allows one of three categories of people to fill in as an acting officer when a vacancy occurs. The first option is that the “first assistant” to the vacant position automatically becomes the acting officer. While “first assistant” isn’t defined in the Vacancies Act, it is typically the deputy to the vacant position. The second option is that the president can appoint a high-level agency official who was already working at the agency before the vacancy occurred. And the third option is that the president can appoint someone from any agency who is serving in a different Senate-confirmed position and who will then hold both titles, sometimes called “dual-hatting.”

The law also specifies how long the vacant position can be filled by an acting official. The Vacancies Act creates a window of 210 days, starting on the day the vacancy occurs, during which acting officers can serve in the vacant position. If 210 days come and go and the president fails to submit a nominee to the Senate, then the Vacancies Act requires that the acting official step down and the position remain vacant, meaning no one can perform the functions of that job, until someone is confirmed.

If the president does submit a nomination to the Senate while an acting officer is serving, that officer can continue to perform the office’s duties as acting officer while the nomination is pending, however long it takes. If the nominee is returned, the officer can work as
acting for another 210 days, and then through a second entire nomination process, and a final 210 days if that second nominee is returned. If time runs out, the Vacancies Act dictates that the office in question must remain vacant until someone is confirmed by the Senate for the job. For an office to be “vacant,” the Vacancies Act requires that no one other than the head of the agency involved perform the nondelegable functions and duties of the position. Nondelegable functions and duties are those that are uniquely reserved for fulfillment by that office only.

Note that there can be more than one successive acting officer for a vacancy, as long as they don’t collectively violate the time limitations. For example, the president could appoint an acting officer on day one of a vacancy, but then fire that person and appoint a different acting officer later as long as time has not run out under the Vacancies Act.

The timekeeper in this process is the Government Accountability Office (GAO). They are charged with tracking the dates of vacancies and keeping time on acting service. If the GAO finds a Vacancies Act violation, they are required to send a letter to the agency involved, to the president, and to Congress. If someone is not in compliance with the time limitations of the Vacancies Act, the law mandates that that person’s actions have no force or effect—but someone with legal standing needs to bring a lawsuit in order to enforce the provision. That is the only enforcement mechanism in the Vacancies Act.

While it may be unusual for a sitting president to admit publicly that they prefer acting over Senate-confirmed officers, presidential manipulation of the Vacancies Act is not uncommon. Many have acted contrary to Congress’s intent, and contrary to the Constitution’s mandate that the president gain the Senate’s consent of their nominees.

Former President Clinton, for example, appointed Bill Lann Lee as acting assistant attorney general for civil rights after the Senate refused to confirm Lee for the role. Lee’s appointment violated the Vacancies Act—it came after the 210-day time limit had run out for the previous acting officer who served during Lee’s own nomination process. Still, Clinton cited the Vacancies Act to justify Lee’s appointment, although he also seemingly acknowledged the appointment was unconstitutional, saying “I have done my best to work with the United States Senate in an entirely constitutional way. But we had to get somebody into the Civil Rights Division."

Under the Obama Administration, Vanita Gupta assumed the same acting assistant attorney general role in the fall of 2014. Over two years later, Gupta was still performing the functions and duties of that office even though she should’ve reverted to her previous role in the spring of 2015 as required under the Vacancies Act. Even though Gupta dropped her “acting” title, she continued to perform the functions and duties of the assistant attorney general position because then-Attorney General Loretta Lynch re-designated the functions and duties of the assistant attorney general to Gupta. This delegation appears to be in direct conflict with the Vacancies Act.

In April, under the Trump Administration, then-Department of Homeland Security Secretary Kirstjen Nielsen announced she submitted a letter of resignation an hour after the President announced that he was replacing her with U.S. Customs and Border Protection Commissioner Kevin McAleenan as acting secretary. It was widely speculated that despite her resignation letter, Nielsen had actually been fired. This appointment likely ran afoul of the law because of a Department-specific statute dictating that the Under Secretary of Management become acting when the Secretary or Deputy Secretary are unable to perform their jobs. Conveniently, the undersecretary resigned just two days later, making space for McAleenan to assume the role, and retroactively making the appointment technically valid.

Most recently and most egregiously, President Trump appointed Ken Cuccinelli, who has no prior experience in the federal government, to lead U.S. Citizenship and Immigration Services as its acting director. As explained above, the Vacancies Act dictates that an acting officer come from one of three narrow categories of eligibility, none of which allow someone wholly outside of the federal government to fill a vacancy that is required to be filled with a Senate-confirmed nominee. President Trump circumvented the bounds of the law and the Constitution by creating a new position above the existing first assistant for Cuccinelli called “principal deputy director” rather than allowing the existing deputy director to become the acting head of the agency. With that move, President Trump ensured that his choice to run the office made it in, without conferring with or gaining consent from the Senate, while still operating within the technical bounds of the law.  

The loopholes that exist in the Vacancies Act are easily exploitable and result in situations where the leadership of massive federal agencies is installed without Senate advice or consent—entirely within the bounds of the law.

It’s understandable that a president would prefer to appoint acting rather than Senate-confirmed officials to federal positions, and the Vacancies Act in its current form enables that preference to be put into practice. As written, the law tolerates a large degree of creativity and nimbleness: It allows the president to put into power the individuals most willing to do as they’re told and to fire those same individuals when the president doesn’t like their performance, with little meaningful oversight by Congress. But taking the path of least resistance isn’t always the legal choice or even the wisest choice, and relying on acting leadership—particularly at the head of an agency or an inspector general’s office—hampers the work of the department and its ability to take on longstanding issues. 

The loopholes that exist in the Vacancies Act are easily exploitable and result in situations like the examples above, in which the leadership of massive federal agencies is installed without Senate advice or consent—entirely within the bounds of the law.

To make matters worse, the Vacancies Act is largely unenforceable in its current state because it relies on self-reporting of vacancies by the agency involved, and its only mechanism of enforcement requires individuals to file lawsuits challenging the past actions of improperly serving acting officers. This requires time, money, and standing to sue.

Loopholes and the act’s general lack of enforceability have allowed sitting presidents to essentially disregard both the constitutional edict of Senate advice and consent established by the Framers, and a Congressional mandate that goes back almost to the very beginning of the country establishing a limitation on tenure of acting officials. Congress has repeatedly worked to ensure presidents abide by their constitutional responsibility to submit nominees, first in 1795 and later in 1868 with the passing of the first Vacancies Act.

The press covers persistent vacancies during every administration. Political pundits and members of Congress criticize their opposing party for an overreliance on acting leadership but largely ignore reform opportunities when their own party controls Congress, the White House, or both.

Instead of focusing on the sheer number of vacancies and the persistence of the problem, stakeholders should instead focus on how persistent vacancies in high level positions within federal agencies harm us, the practical problems with the law, and what Congress and the president can do to solve the problem once and for all.

Three Reasons Persistent Vacancies Are a Bad Thing to Begin With

1. Persistent vacancies are essentially unconstitutional.

The advice and consent clause of Article 2, Section 2 of the Constitution requires that the president nominate and appoint government officers with the “advice and consent of the Senate.” This is a critical safeguard of the separation of powers structure. Alexander Hamilton called the Senate’s role “an excellent check upon a spirit of favoritism in the President.” A near unanimous Supreme Court decision called it one of the “significant structural safeguards of the constitutional scheme.”

It’s vital that the president, as the protector and defender of the Constitution, fulfill their constitutional duty by submitting qualified nominees and gaining the Senate’s consent to appoint them rather than subverting the process by installing acting officers. Leaving persistent “acting” officials in positions that require the Senate’s advice and consent flouts the Constitution’s mandate. Violating a constitutional mandate even once is, well, unconstitutional. Doing it again and again, over years and years, normalizes unconstitutional behavior and abuse of power.

2. A large number of cabinet-level officials could be unqualified for their jobs.

Without consistent Senate vetting, we don’t know if the numerous acting officers currently serving in roles throughout the federal government have the necessary qualifications to perform the job to which the president has appointed them.

We should want the most qualified and ethical federal workforce possible, especially for positions that require presidential nomination and Senate confirmation because of the power that those officials hold. But presidents stand to benefit from appointing individuals who are loyal to them, so they may pass over the best-qualified people in favor of those who will do what they’re told.

Reflecting on these concepts, Alexander Hamilton wrote that Senate confirmation is an essential barrier against “the appointment of unfit characters … from family connection, from personal attachment, or from a view to popularity.”

When applied in good faith, the Senate vetting process is robust, comprehensive, and lengthy by design. Reviewing committees consider conflicts of interest, relevant expertise, and other factors that speak to the nominee’s ethical character and aptness for the job. Of course, some acting officers have already been through the confirmation process: The Vacancies Act allows the president to appoint an officer who is already serving in a different Senate-confirmed role to fill a newly created vacancy. But pre-confirmed officers who are “dual hatting” are being pulled away from the position they were vetted to fill, leaving yet another high-level vacuum. Worse, they may be ill-suited for their second role.

As an example of the importance of robust Senate vetting, consider former CIA inspector general (IG) nominee Christopher Sharpley. Sharpley was the deputy CIA IG for three years and the acting IG for an additional two when President Trump nominated him to serve as permanent IG.

Shortly after he was nominated, POGO discovered that Sharpley had three credible whistleblower complaints pending against him. Given the IG’s role in working with whistleblowers and ensuring that whistleblowers are not retaliated against by agency officials, those complaints were wholly relevant to his nomination. The Senate intelligence committee raised POGO’s report in Sharpley’s confirmation hearing and his nomination was later returned to the President, followed by his resignation from office. Without the Senate vetting process shining a light on the open whistleblower complaints, it seems likely that Sharpley would have continued in his role heading the CIA IG office, whose mandate, in part, is to receive whistleblower disclosures.

Of course, there are individuals who make it through Senate vetting who turn out to be less than fit for office, but with approximately 1,200 Senate-confirmed offices, scandalously inappropriate political appointees are the exception and not the rule. There are also Senate committees that sometimes fail to move forward on political nominees to serve their own political agenda, but that is a separate problem that would have to be addressed in the Senate’s own policies.

3. Acting officials are ill-equipped and often unwilling to make big decisions, and the agency suffers.

Senate-confirmed leaders are more willing to make waves when necessary. Persistent vacancies mean widespread federal leadership that is often unwilling to stand up and do what needs to be done.

For example, the Department of Homeland Security Office of Inspector General recently conducted a self-investigation of its own audits into the Federal Emergency Management Agency’s disaster response performance after Members of Congress took issue with the content and quality of the audits. The IG office concluded that their own leadership instructed the office to produce “feel-good” reports rather than honest evaluations. While some of this went on under the previous IG, it persisted under the acting IG’s leadership. The acting IG retired days after the press reported on the matter. Where comprehensive audits of FEMA’s responses could’ve saved lives, resources, and funds, the acting IG continued to encourage meaningless reviews.

POGO has testified about the problem of federal inspector general positions being filled by acting officials. The vital work of IGs is particularly vulnerable to acting leadership because IG inspections and audits require fortified independence from the agency to ensure that the IG’s work product is untainted by agency influence. Acting IGs lack certain barriers to removal that permanent IGs benefit from such as the mandate that permanent IGs can only be removed from office by the president, not the head of the agency, and the requirement that the president report to Congress when they remove an IG as well as the reason for removal.

Further, an acting role presents a reverse incentive to performing vigorous oversight into the executive branch agency the acting IG is charged with overseeing. If the acting officer is “auditioning” for the job, they may not want to make waves by investigating actions of the administration they are hoping will nominate them to fill the job permanently. Even when acting officers have no expectations of taking the job permanently, they may be hesitant to make necessary changes. When testifying recently about persistent vacancies at the Department of Homeland Security, former Inspector General John Rothnoted that acting officers are operating in a “caretaker role and are justifiably hesitant to make decisions that would tie the hands of the individual ultimately appointed to that position. Thus, long term strategic decision-making is deferred until someone is appointed.”

When you consider the extensive length of some federal vacancies—the Interior Department, for example, has lacked a permanent IG for over a decade—it becomes clear how crippling some acting leaders’ inaction could be to an agency’s mission and work.

Five Problems with the Federal Vacancies Reform Act and the Solutions to Fix Them

Problem 1: The Vacancies Act relies on self-reporting to its detriment, often delaying any chance of meaningful enforcement.

As described briefly above, the Government Accountability Office is required to track violations of the Vacancies Act and to notify those in violation, the president, and Congress. But this tracking relies entirely on self-reporting by the agency. As a result, violations are often found after the acting officer has returned to their original position. Many of GAO’s violation letters, then, become moot because they’re about past unlawful service, and a Senate-confirmed leader has since taken control.

This delayed reporting also harms individuals or organizations that want to bring suit to enforce the Vacancies Act. The sole enforcement provision in the law states that actions taken by non-confirmed officers acting outside of the limitations in the Vacancies Act “have no force or effect.” Such actions have been deemed void ab initio by the Supreme Court, meaning that the actions are invalid from the very start. Rather than preventing unlawful service, the act as written puts the burden on those harmed to carry the time and expense of a court battle to enforce the law.

Since the violation letters from GAO are often late due to lax self-reporting by the agency, lawsuits challenging the actions of an illegitimate acting officer are dismissed or voluntarily dropped for lack of standing or mootness since the acting official may be long gone by the time the suit goes to court.

To remedy this, Congress should amend the Vacancies Act to create an automatic reporting system to GAO when a position becomes vacant using employment and pay records. Congress should also consider adding teeth to the Vacancies Act, including individual culpability in certain cases where acting officials or those who wrongfully delegate them the functions and duties of a vacant office knowingly and willfully violate the law.

Problem 2: Acting officers don’t always stop performing the functions and duties of the office when they drop their acting title, violating the spirit and letter of the law.

While acting officers are required to return to their previous role after their tenure has expired under the Vacancies Act, not everyone complies with this mandate. Instead, officers will drop their “acting” title and continue to perform the functions and duties of the vacant office. This practice circumvents Senate confirmation and public accountability.

As discussed previously, Vanita Gupta continued to perform the duties of the office of assistant attorney general for the Justice Department’s civil rights division even after her tenure as acting was up because the Attorney General delegated those duties right back to her. In reflecting on this unlawful action, the CATO Institute noted: “If successful and unchallenged, administrations may continue to use this tactic to subvert the FVRA [Vacancies Act], creating acting officers in all but name who can hold their office indefinitely without Senate consent.”

Gupta and the Attorney General’s actions were in direct violation of the Vacancies Act because the law dictates that once an acting officer’s tenure expires, no one can perform the functions of that office except the head of the agency until someone is confirmed by the Senate for the role. Once an office becomes vacant with no legitimate acting officer, only the head of the agency is allowed to perform any nondelegable functions and duties of that office. These duties are usually established by the statute that created the office.

Most concerningly, this requirement may not apply when the vacant position is the head of the agency. For example, if it was the attorney general position that was vacant and the acting attorney general’s tenure expired, there is no express requirement under the Vacancies Act dictating that only the head of the agency can perform the functions and duties of the vacant office—the head of the agency is the vacant office.

What typically happens next is that the agency head’s deputy will change their title to “deputy director performing the duties of the director” and will fill in until someone is confirmed by the Senate to fill the vacancy. Sometimes that same deputy was just serving as acting director under the Vacancies Act—they’ve simply dropped their acting title and are now running the agency with a different title.

We saw this exact scenario play out under former Immigration and Customs Enforcement (ICE) head Ronald Vitiello, who did exactly this: He became the acting head of ICE, stepped down within the time constraints of the Vacancies Act, and then became the deputy performing the duties of the agency head.

To some degree, this makes sense: The second in command at an agency should be able to fill in when there is no director; in theory, they’re the person best equipped for the job. However, this setup circumvents the constitutional requirement that the president gain the consent of the Senate on their appointments because the deputy could serve in this way forever. Instead, if a president feels that an agency’s deputy is best suited to become director, they should nominate that person for the job.

Recently, President Trump added an additional layer of complexity to this workaround when he named Ken Cuccinelli acting director of U.S. Citizenship and Immigration Services by creating a new “first assistant” position within the agency and assigning Cuccinelli to that role. Since Cuccinelli is acting head of the agency, he can simply drop his acting title in 210 days (assuming no other candidate is nominated) and then retitle himself as “principal deputy director performing the duties of the director.” In doing so, Cuccinelli will technically still be in compliance with the Vacancies Act. All the President has to do is not nominate anyone else for the job, and Cuccinelli can run the agency for as long as the President wishes. This seems a likely outcome given the Senate’s pushback against Cuccinelli’s appointment as acting and his rumored unconfirmability.

In order to solve this problem, GAO needs to take proactive measures to ensure that former acting officers are not continuing to perform functions and duties of an office under a different title after they term out, and Congress needs to make it clear that it wants GAO to take on this expanded role and provide them the resources to do so. Further, Congress should limit the ability to abuse the spirit of the Vacancies Act at the highest level by updating the law to remove the loophole for heads of agencies. Finally, Congress should amend the Vacancies Act to require that those filling in for an agency head as “first assistant” must have already served in that role prior to the vacancy.

Problem 3: The Vacancies Act does not incentivize the president to submit nominees to the Senate.

The Vacancies Act currently permits acting officers to serve in their roles, performing the unique functions and duties reserved for a federal office, for 210 days for each of two pending nominations and a final 210 days. This is longer than a recess appointment, which only lasts until the end of the next session of Congress (a maximum of two years). As a result, there’s no incentive for the president to comply with the Constitution and nominate a candidate for the permanent position.

The Constitution mandates that the president obtain advice and consent from the Senate on their nominees. Congress should ensure a president makes timely, qualified nominations by shortening the amount of time an acting officer can serve to 120 days and one pending nomination.

Problem 4: It’s unclear whether the Vacancies Act takes precedence over conflicting statutes that control plans of temporary succession for individual agencies.

As discussed above, when Kirstjen Nielsen stepped down as homeland security secretary, President Trump announced that U.S. Customs and Border Protection Commissioner Kevin McAleenan would be filling the role as acting homeland security secretary. However, a department-specific law mandates that when the secretary or deputy secretary position becomes vacant, the under secretary for management “shall serve” in their place, “notwithstanding” the Vacancies Act. At the time of Nielsen’s departure, then, it was clear that then-Under Secretary Claire Grady should have become the acting secretary by law. However, just two days after the President’s tweet announcing both Nielsen’s resignation and McAleenen’s appointment as acting, Grady also resigned. Given the timing of Grady’s resignation, one could speculate that she was pushed out to legitimize the President’s claim that McAleenan could become the acting secretary through a Vacancies Act appointment.

While in that particular case it’s clear that Congress intended the Department of Homeland Security law to override the Vacancies Act in terms of order of succession, not all conflicting laws contain such an explicit ”notwithstanding” clause demonstrating clear congressional intent.

For example, when the President named Matthew Whitaker as acting attorney general, it was despite a Justice Department statute mandating that when the attorney general’s office become vacant, the deputy attorney general fill the role on an acting basis. Per that statute, then-Deputy Attorney General Rod Rosenstein should have become the acting attorney general. Whittaker’s appointment drew heavy criticism and several legal challenges because of the inconsistence with the Justice Department statute. In the end, however, a federal court held that both conflicting laws can be valid at the same time, depending on the language of each statute. For the Justice Department statute, the court found that the laws essentially present the president a choice of which law to comply with.

A similar situation is currently playing out at the Office of the Director of National Intelligence. The current director, Dan Coats, is set to step down on August 15. According to an agency-specific statute, the principal deputy director—currently Sue Gordon—“shall act for, and exercise the powers of, the Director of National Intelligence” if the director position is vacant. Yet it’s not clear whether the President will follow this statute or whether he will attempt to appoint someone other than Gordon as acting director. If so, he will surely face legal challenges due to a separate provision of the law that seems to exempt the Director of National Intelligence position from the Vacancies Act.

Congress should clarify the Vacancies Act by amending it to mandate that an agency-specific succession statute, should one exist, takes precedence. If Congress doesn’t include such a clarification, every conflicting appointment will have to be challenged in court.

Problem 5: Acting Inspectors General lack the independence and structural safeguards of Senate-confirmed IGs.

IGs stand apart from most other federal officers in that they are charged with overseeing the programs and practices of federal entities to uncover and prevent agency waste, fraud, and abuse. Acting IGs operate under this same mandate. Yet while permanent IGs have some removal protections that afford them a layer of independence, acting IGs may not.

Recently, we saw confusion play out at the Department of Education IG office when the acting IG was reportedly being replaced by the agency’s own general counsel. There is speculation that the move was an attempt to stop an investigation that the acting IG was conducting. Although the education secretary quickly walked back these plans, the scenario highlighted a couple problems.

First, while most permanent IGs can only be removed by the president, it’s not clear whether acting IGs can be removed from office by their own agency head. Second, the choice of replacement was ethically suspect; the concept of an agency replacing its watchdog with one of the agencies’ own lawyers should greatly concern taxpayers. A general counsel’s primary responsibility is protecting the legal interests of the agency by preventing legal vulnerability. This responsibility is diametrically opposed to the role of the IG, who is tasked with investigating and exposing the ethical, financial, and legal problems with agency practices.

Congress should extend protections that guard the independence of permanent IGs to acting IGs, such as establishing that most acting IGs can only be removed by the president, and requiring that Congress be notified when an acting IG is removed. Congress should also create a stronger incentive for presidents to nominate permanent IGs to prevent years-long IG vacancies. POGO suggests that Congress task the Council of the Inspectors General on Integrity and Efficiency and a panel of three IGs to select a pre-vetted individual to temporarily fill a vacant IG position. With such a model, the president would always be able to step in and nominate a qualified, permanent candidate for the office. This would be a means to better encourage swift nomination of IGs. See POGO’s memo on the constitutionality of this model.

These are just a glimpse of the full menu of reforms that Congress should consider; acting on any or all of them would be a step in the right direction toward preventing and addressing harmful, persistent federal vacancies.

In their 2017 analysis of Gupta’s acting service, the CATO institute pointed out that: “As a new administration takes control, drawing attention to this case may discourage future attempts to subvert the FVRA [Vacancies Act], and with it the Constitution’s Appointments Clause itself.” Unfortunately, that wait-and-see method seems to be failing. Instead, Congress should consider the real harm of persistent vacancies and reform the law accordingly.

President Trump and the 116th Congress didn’t start the vacancies problem, but as long as they hold office, they alone are responsible for either worsening it or fixing it.