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Strengthening Checks and Balances

Unconfirmable: How Trump’s Nominees are Failing or Evading Senate Confirmation but Holding Office Anyway

(Illustration: Leslie Garvey / POGO)

The Government Accountability Office (GAO) recently dropped a bombshell finding: The individuals who have been leading the Department of Homeland Security (DHS) for the past 500 days have been doing so unlawfully—potentially paving the way for all of their actions to be struck down by a court. This recent news highlights the kinds of problems that arise when presidents choose to have acting officials in agency leadership roles, including individuals the Senate had previously outright rejected. In the end, President Donald Trump’s decisions to rely on acting officials at numerous executive agencies rather than to nominate permanent leaders could wind up hurting all of us much more than we may have thought.

As the Project On Government Oversight has often observed, an overreliance on acting leadership is bad for our system of government: It begets slow, ineffective leadership; strips agencies of institutional knowledge; and hinders congressional oversight. It also unlawfully sidesteps the constitutional requirement that the president obtain the advice and consent of the Senate on political appointees.

Overreliance on acting leadership is bad for our system of government.

Most of us who follow government ethics and accountability issues know by now that Trump relies heavily on temporary “acting” executive agency leadership. By his own admission, he prefers it that way.

To accommodate this preference, Trump’s administration has been known to manipulate the laws that govern what happens when senior executive branch jobs become vacant. Recent examples demonstrate that the modification of agency-specific succession policies have changed the pecking order of officials in line for agencies’ top positions, evading the Senate confirmation process entirely.

The Federal Vacancies Reform Act of 1998—the law that controls the lawful appointment and tenure of acting officials pending the confirmation of a permanent successor—is the overall statutory authority on acting leadership, but sometimes agency-specific laws, often called “housekeeping statutes,” allow agency leaders to sign orders modifying the roster of who will succeed them should they leave office, presumably under the president’s direction. In doing that, these leaders are able to shoehorn the president’s chosen individual into position to lead the agency without having to pass through Senate vetting—a constitutionally mandated process that is critical to ensuring nominees are qualified for the roles they seek.

Agency leaders, as you can imagine, have a lot on their plate. They oversee their agency’s policies, programs, and practices—such as how the agency is spending your tax dollars—and they serve as expert advisors to the president. As such, it’s essential that they be experts in the agency’s subject matter. Manipulation of and overreliance on housekeeping statutes has allowed individuals to lead federal agencies without ever having been confirmed, or even considered, by the Senate for their job.

One argument we hear from the White House about why Trump chooses to rely on acting officials is that the Senate simply refuses to confirm the president’s nominees. Yet according to a public tracker that monitors 757 key executive positions that require Senate confirmation, the Senate has actually confirmed 532 of the president’s nominees for those positions—the president has not nominated individuals for 137 of those positions. Senate obstructionism clearly isn’t the real reason for the president’s decision to rely on acting officials. So why do agencies have so many acting officials?

It seems likely that the president simply wants to install individuals into the highest ranks of government who will be accommodating of the president’s ever-changing priorities with few or no questions asked. The problem (for the president) is that while these individuals may be accommodating, they may be unqualified—and so would likely be unconfirmable should they actually be put through the official confirmation process.

Nominees are sometimes unconfirmable because they represent fringe politics, have expressed highly controversial views, or have deep conflicts of interest. Others have been outspoken in the past about incumbent politicians, drawing the ire of high-ranking senators. Still others are objectively unqualified for the job they seek.

So what is a president to do when even his own party won’t confirm his nominees? If he were acting in deference to the Constitution, he would seek out nominees who were actually qualified to do the job. Unfortunately, the president, either unwilling to wait for sufficient vetting of his nominees or set on certain individuals despite their lack of qualifications, installs them anyway through the manipulation of laws, particularly the Federal Vacancies Reform Act of 1998.

The intentional manipulation of the law raises important practical questions and concerns about the role of the Senate vetting process writ large, and threatens to undermine the most basic operations of the federal agencies.

Recent examples from three different agencies demonstrate the kind of problems we can look for if this behavior is allowed to continue.

The Department of Homeland Security

It is no secret that the Department of Homeland Security is plagued by vacant leadership positions. There have been at least two separate congressional hearings under the Trump and Obama administrations on that subject alone. According to a vacancy tracker maintained by the Washington Post and Partnership for Public Service, just 35% of key positions are filled at the agency. We’ve just passed the 500-day mark without a Senate-confirmed DHS Secretary, the longest vacancy for any Cabinet-level position in our nation’s history.

This long-term absence of Senate-confirmed leadership is unacceptable, particularly given the significant role DHS has played under the Trump administration through immigration and border policy disputes. Again, the president cannot blame the Senate for slow-rolling his nominees for secretary as he hasn’t nominated anyone since Kirstjen Nielsen stepped down in April 2019.

Just 35% of key positions are filled at the Department of Homeland Security.

Instead, the president has relied on a string of acting leadership at top DHS positions, extending well past the 210-day acting service limit mandated by the Federal Vacancies Reform Act. That choice led to what may become one of the biggest administrative blunders in the agency’s history.

Last month, the Government Accountability Office found that the individuals who have assumed the role of acting DHS secretary after Nielsen stepped down were all installed unlawfully. The short version of GAO's report is that before stepping down as DHS chief, Nielsen attempted to change the order in which official positions would assume the powers of secretary if that position unexpectedly became vacant so that specific individuals would take over after her departure. The trouble is, GAO found, Nielsen changed the wrong document.

There are two separate lines of succession for DHS secretary. One policy controls who fills in if the secretary resigns or dies, and the other controls who fills in if an emergency or disaster prevents the confirmed secretary from doing their job. Nielson was attempting to place then-commissioner of Customs and Border Protection, Kevin McAleenan, as the individual next in line to become acting DHS secretary when she stepped down. However, Nielson made it so that McAleenan would be next in line in the event of an emergency or disaster, not in the event of her own resignation. So, GAO found that because Nielson resigned and was not restricted from her job duties because of an emergency or disaster, McAleenan was not next in line to become acting secretary. As a result, Nielsen’s two “acting” successors never lawfully served in their roles.

It’s also worth noting that even if Nielsen had changed the correct document, it’s unclear if a court would find that DHS’s succession statutes allow acting leaders to operate well past the time restrictions specified by the Federal Vacancies Reform Act of 1998.

In modifying the succession order, Nielsen was likely acting on instructions from Trump. Days before Nielsen signed the revised order, a tweet from the president announced Nielsen’s resignation and that McAleenan would take her place. It was only after this tweet that Nielsen attempted to modify the succession order to change the next in line from the director of the Cybersecurity and Infrastructure Security Agency to the commissioner of Customs and Border Protection.

We’ve just passed the 500-day mark without a Senate-confirmed DHS Secretary, the longest vacancy for any Cabinet-level position in our nation’s history.

The implications are sweeping and profound. Under the Federal Vacancies Reform Act of 1998, actions taken by someone who is not lawfully acting “have no force or effect“ and cannot be ratified (re-issued by a confirmed successor). This means that since both of Nielsen’s successors were improperly installed as acting secretary of DHS, any or all of their official actions could be overturned if challenged in court. One of those actions, it’s worth noting, was appointing an acting deputy secretary, Ken Cuccinelli, whose own tenure is now called into question by GAO’s findings. And the agency’s militaristic policing actions in Portland will surely be top of mind for many.

DHS, of course, has disagreed with GAO’s decision in a legal analysis that will probably have to be fought out before a judge. GAO declined to rescind its decision as DHS requested, stating that DHS has failed to show that the GAO decision “contains either material errors of fact or law.”

No matter your stance on U.S. immigration policy or the work of DHS, you should be concerned about the implications of this conundrum as a taxpayer who has been funding over a year of agency work that could be overturned as void—the good and the bad. Further, the implications of this decision will be complex and long-felt for individuals personally impacted by DHS’s work as they sort out the consequences of unlawful agency actions in court for years to come.

Even though Trump has indicated his intent to nominate currently—and improperly—acting DHS Secretary Chad Wolf for the permanent position, Wolf’s actions as acting secretary could still be rendered void by a court under the ratification provision in the Federal Vacancies Reform Act.

Beyond Wolf, the other current DHS employee mentioned in GAO’s finding is Ken Cuccinelli, arguably the poster child of Trump’s unlawful appointee workarounds.

Cuccinelli is known for being an immigration hardliner who embraces fringe politics. In a move that has since been overturned as unlawful, the president had appointed him to a top deputy spot at U.S. Citizenship and Immigration Services in 2019 as a way to shoehorn him into the top spot at that agency. While it was rumored that Trump actually wanted Cuccinelli in the top role at DHS, there were two problems: First, Cuccinelli was said to be unconfirmable in the Senate due largely to his outspokenness against incumbent Republican senators and his radical stance on immigration; second, the Trump administration’s own attorneys informed the president that federal vacancies laws prevented Cuccinelli from lawfully serving as acting secretary of DHS.

Yet right now, Cuccinelli is the “Senior Official Performing the Duties of the Deputy Secretary”—the number two at DHS. He rose to this position through a series of bureaucratic acrobatics, hopping positions up the DHS ladder largely through manipulation of succession orders by other acting DHS leaders. GAO’s recent report calls out Cuccinelli’s appointment to the deputy secretary role as being unlawful. By circumventing the Senate confirmation process to get Cuccinelli in a high-up role at the DHS, the president has exposed all of Cuccinelli’s official actions as acting deputy secretary to being voided.

All of this could have been prevented had the president submitted timely, qualified, confirmable nominees to the Senate.

The Department of Defense

Another recent example is out of the Pentagon, and it demonstrates the president’s willingness to appoint his chosen nominee in direct defiance of bipartisan Senate rejection. This broader practice means that our tax dollars could be funding the work of wholly unqualified leaders—and taxpayers will be responsible for funding the costs of fixing those leaders’ blunders after they leave office.

Trump nominated retired Army Brigadier General Anthony Tata to be the undersecretary of defense for policy, the top policy job at the Pentagon. The role is responsible for interagency policy, international military diplomacy, and the Pentagon’s policy planning, among other responsibilities. Yet Tata, a nominee who publicly made bigoted remarks about issues that were highly relevant to the job he sought, lacked sufficient votes to advance out of committee, making him unconfirmable.

Just days after Tata’s nomination hearing was cancelled by the Senate Armed Services Committee, the White House installed Tata as acting deputy undersecretary for policy, the deputy position for the job he was nominated for, which is essentially the same position he sought. This move quickly drew congressional ire, with the ranking member of the committee rightfully labeling it “an insult to our troops, professionals at the Pentagon, the Senate, and the American people” and “a flagrant end run around the confirmation process.”

The result is that we now have an individual deemed unqualified by the Senate essentially doing the job he was expressly rejected from. By installing Tata to the position despite the Senate’s rejection, the president is disregarding the Senate’s role as described in the Constitution's appointments clause and is subjecting taxpayers and troops to unfit leadership in a top Pentagon position.

The Senate confirmation process is not designed to vet an individual for any possible role in the administration.

While this is certainly bad enough, reporting suggests that the president had even loftier goals for Tata than the Pentagon’s top policy role. Trump wanted him as acting secretary of defense—a goal that the Senate was well aware of. As one staffer said, “It’s no state secret the president is unhappy with Esper and that, if Tata’s confirmed by the Senate, Trump would slide him in as secretary of defense.”

The Senate confirmation process is not designed to vet an individual for any possible role in the administration. But the Senate is now having to vet the individuals Trump has nominated for lesser agency roles as though they had been nominated for the top job in the agency, just in case the president is planning to use their confirmation for that lesser role as a workaround to federal vacancies laws. While this may sound far-fetched, it is exactly what happened at DHS with current acting Secretary Chad Wolf. He was confirmed for a lower-level position in the agency and was appointed acting DHS secretary the very same day. To be clear, in the case of Tata, the general wasn’t confirmed for the lower-level position, but that may have something do to with the fact that the Senate found him unqualified to serve as acting secretary of defense.

This setup of vetting candidates for the job they’re after as well as the top job in the agency seemingly doubles the vetting work of the Senate at taxpayer expense. It is a disingenuous workaround that threatens the efficacy of Senate confirmation—a constitutionally mandated process. And while Tata was not deemed fit by the Senate for either the policy job he was nominated for or the secretary position, he nevertheless is seated a stone’s throw away from both.

The Interior Department’s Bureau of Land Management

A third recent example comes out of the agency responsible for overseeing federal lands and resources, the Bureau of Land Management within the Department of the Interior.

The lead position at the bureau has been vacant for over three years. For the last year, the agency has been led by William Perry Pendley, an industry insider who openly opposes federal land ownership and maintains financial ties to private interests that directly compete with his office’s mission. Because of his background, Pendley has to recuse himself from a large portion of the bureau’s work—his recusal list is, at time of publication, 17 pages long.

The lead position at the Bureau of Land Management has been vacant for over three years.

It is a matter of active litigation whether Pendley’s continued occupancy of this leadership role violates federal vacancies law or the Constitution. The Federal Vacancies Reform Act limits acting service to 210 days after a Senate-confirmed leader leaves office—a deadline that has indisputably passed. Further, as stated above, the Constitution requires that the Senate consider the president’s nominees for office. Pendley’s perpetual leadership in this role arguably flouts both mandates.

A recent move by Pendley and Trump has dialed the urgency of the situation up to eleven. In June, Trump formally nominated Pendley to hold the bureau’s director position. Like Cuccinelli and Tata, Pendley’s nomination was rejected by the Senate. Shortly after it became clear that Pendley’s nomination wouldn’t be advancing, the White House announced that Pendley would continue in his role leading the agency despite failing the Senate confirmation process. To justify this move, the Interior Department is relying on a new policy from May of this year about the order of succession within the bureau that installed Pendley with seemingly no termination date. Worse, the policy document is signed by Pendley himself.

While senators have pushed back against this move as circumventing the Senate, their response has been disappointingly meek and largely partisan. While vocal opposition is important, if the Senate really wants to reassert its constitutionally mandated role in the nominations process, it must reform the laws surrounding federal vacancies to encourage timely, qualified nominees for office.

The Federal Vacancies Reform Act of 1998 was largely inspired by excessive use of the housekeeping succession statutes by executive branch agencies. All three agencies highlighted here rely on these statutes to evade congressional review of unconfirmable nominees. At the time the Federal Vacancies Reform Act was passed, about 20% of executive branch positions were held by temporary designees—most of whom were serving beyond the statutorily mandated time limitation in a position that lacked a nominee for Senate consideration.

Leading up to passage of the reform act in 1998, the Justice Department argued that its own housekeeping statute exempted the agency from having to comply with the Vacancies Act, a predecessor of the 1998 law. The late Senator Robert Byrd, who worked on the reform act, rejected the Justice Department’s analysis as “an end-run around the Vacancies Act, an end-run around the U.S. Senate, and [an] end-run around the U.S Constitution.”

Clearly, the executive branch has fallen back into old habits. Time for Congress to reassert its own rights—and hopefully this time it sticks.