The Trump administration’s disregard for the law governing presidential appointments finally caught up with it. This week, a federal judge in Maryland ruled that because Chad Wolf was likely serving unlawfully as acting secretary of the Department of Homeland Security (DHS), she was barring the administration from enforcing new asylum rules.
Judge Paula Xinis is not the only one who’s concluded this. Last month, the Government Accountability Office released a report concluding that Wolf and Acting Deputy Secretary Ken Cuccinelli are both serving in their positions illegally. And, they aren’t the only high-level Trump officials who are serving illegally. Rather, this administration has shown a blatant disregard for the critical and constitutionally prescribed role the Senate is supposed to play in determining who should fill high-level positions in the executive branch. Indeed, by our count at the Constitutional Accountability Center (CAC), there are currently at least 15 other officials serving in at least 12 executive branch departments who do not hold their positions lawfully and, as we explain below, this figure surely understates the severity of the problem. This pervasive evasion of the Senate’s advice-and-consent requirement is deeply troubling—and hugely consequential.
Under the Appointments Clause of the Constitution, the president is required to obtain “the Advice and Consent of the Senate” in order to
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.
As Alexander Hamilton explained in The Federalist No. 76, the Framers imposed this requirement because they recognized that giving the president the “sole disposition of offices” would result in a Cabinet “governed much more by his private inclinations and interests” than by the public good.
While federal law has long allowed acting officials to temporarily fill offices that require Senate confirmation, the Federal Vacancies Reform Act (FVRA) was passed in 1998 in response to the executive branch’s failure to comply with federal law and its evasion of the Appointments Clause. The FVRA imposes strict limits on who may serve as acting officials and for how long they may serve. Among other things, the statute provides that an acting official may not serve for more than “210 days beginning on the date the vacancy occurs.” That period can be extended if there is a nomination to fill the position—but it cannot be extended for any other reason.
The Trump administration has repeatedly been ignoring this strict time limit set out in the FVRA, allowing offices to continue to be filled by acting officials long after the FVRA’s time limit has expired. In fact, although the GAO Report highlighted the fact that Wolf’s initial appointment to serve as acting secretary was unlawful, it could also have concluded that his continuing service as acting secretary was unlawful because, at the time of the GAO’s report, the period during which that office could be filled by an acting official had long expired. It had been well over a year since the last Senate-confirmed DHS secretary resigned, and the president had not nominated anyone to fill the position permanently. (After the GAO issued its report, the president nominated Wolf to serve as DHS Secretary, and his nomination is currently pending.)
To be sure, the Trump administration has argued that the FVRA’s time limits do not apply because Wolf was appointed under the Homeland Security Department’s organic statute, not the FVRA. According to the government, the provision in the DHS statute, which allows the department to create an order of succession for the secretary’s office, displaces the entire FVRA—not just its rules affecting who may serve as the acting secretary, but also its time limits on acting service. As my organization has explained elsewhere, this is wrong. DHS’s organic statute does not displace the FVRA; to the contrary, it explicitly incorporates it. And while the DHS statute trumps in the event of a conflict with a provision in the FVRA, there is no conflict between the DHS statute’s order of succession provision and the FVRA’s time limits.
Wolf is not alone in having served as an acting officer long after the FVRA time limits for the office expired. By our count at CAC, as of September 2, there were at least 15 other offices with acting officials even though the FVRA time limit for those offices had expired. To identify these offices, we used the Washington Post’s list of 757 key positions that require Senate confirmation and Congress.gov’s nominations database, which provides information on pending nominations. Each of the offices we identified can no longer be filled by acting officials, and yet according to government web pages, they are. (In a couple of cases, while at least one government web page continues to identify these offices as being filled by acting officials, the acting officials are elsewhere identified only as “performing the functions and duties” of the relevant office.” While the practical difference between these labels is unclear, allowing individuals who have not been Senate-confirmed to perform the functions and duties of an office raises different legal questions than formally giving them the “acting” title. ) Here are the 15 offices we identified:
- Assistant Secretary of Commerce for Communications and Information, National Telecommunications and Information Administration, Department of Commerce
- Assistant Secretary of Defense for Readiness, Department of Defense
- General Counsel, Department of Education
- Assistant Secretary for Financial Resources, Department of Health and Human Services
- Special Trustee for American Indians, Department of the Interior
- Assistant Administrator of the Bureau of Asia, U.S. Agency for International Development
- Administrator, Drug Enforcement Administration, Department of Justice
- Chief Counsel for Advocacy, Small Business Administration
- Assistant Secretary for International Organization Affairs, Department of State
- Assistant Secretary for Population, Refugees, and Migration, Department of State
- Under Secretary for Civilian Security, Democracy, and Human Rights, Department of State
- Administrator, Federal Transit Administration, Department of Transportation
- Inspector General, Department of the Treasury
- General Counsel, Department of Veteran Affairs
- Deputy Secretary, Department of Veteran Affairs
Significantly, this list only includes offices that are being illegally filled by acting officials in violation of the FVRA’s time limit. It does not include offices that are being filled by officials whose initial appointments were not in conformity with the FVRA or other federal law. Nor does it include all of the offices that have been filled by illegal acting officials at various points over the last four years, but are no longer being illegally filled.
Moreover, the list above does not include offices that are ostensibly being kept vacant, but the functions and duties of which are being performed by another official. By our count at CAC, at least 21 officials in at least 10 executive branch departments[i] are performing the functions and duties of vacant offices that can no longer be filled by “acting” officials due to the FVRA time limit. For example, an acting official could not serve as director of U.S. Citizenship and Immigration Services (USCIS) after December 28, 2019, but Cuccinelli has been serving as the “Senior Official Performing the Duties of USCIS Director” since December 31, 2019. Given that the administration has chosen not to nominate anyone to fill this position, this is no less an evasion of the Senate’s advice-and-consent power than illegally filling an office with an acting official.
These examples are deeply troubling because it means that senior-level officials throughout the executive branch are taking actions that they may have no legal authority to take. Perhaps the most prominent example is Wolf, who was at least partially responsible for the federal government’s response to protests in Portland, Oregon. In early July, Wolf sent approximately 114 agents to Portland from U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection (CBP). Some of those agents were members of the Border Patrol Tactical Unit, an elite paramilitary arm of CBP that is trained to respond to high-risk operations, not protests protected under the First Amendment. Several lawsuits have been filed against DHS challenging these actions, and as one of them notes, Wolf “could not have served as Acting Secretary under the FVRA because the 210-day limit on such service expired before he purported to assume the Office.” Should the court in this case agree, this could have real effects on the legality of Wolf’s response in Portland because as Judge Xinis pointed out in her recent ruling on asylum rules, any “acts taken by a person selected under the FVRA but in excess of the FVRA’s terms have no force and effect.”
Filling vacant positions illegally also prevents the Senate from playing any role in determining who holds offices that can wield significant power. For example, the inspector general at the Department of the Treasury is
required to keep both the Secretary and the Congress fully and currently informed about the problems and deficiencies relating to the administration of department programs and operations and the necessity for corrective action.
Given that the Department of the Treasury is responsible for distributing $500 billion as part of the CARES act, it is deeply troubling that the Senate played no role in determining who is currently serving as the Treasury Department’s inspector general.
Similarly, the assistant secretary for financial resources at the Department of Health and Human Services is
responsible for the overall budget, financial management, acquisition policy and support, and small business programs of HHS’s roughly $1 trillion annual budget, as well as the Department’s performance management.
Jen Moughalian is unlawfully serving in this position today. HHS is responsible for distributing more than $175 billion to hospitals and healthcare providers battling coronavirus.
The Constitution’s Appointments Clause provides a critical check on the president in determining who fills the most important positions in the executive branch. While the FVRA offers a president some latitude in filling those positions temporarily, it does not give President Donald Trump nearly as much latitude as he may think. In this context (as in so many others), the president has been thumbing his nose at the Constitution and the rule of law. And the evidence of that can be found in the highest reaches of numerous executive branch departments.
2) Under Secretary for International Trade, U.S. Department of Commerce;
3) Under Secretary of Commerce for Oceans and Atmosphere, U.S. Department of Commerce;
4) Assistant Secretary of Defense for Indo-Pacific Security Affairs, U.S. Department of Defense;
5) Under Secretary, U.S. Department of Education;
6) Assistant Secretary, Office of Communications and Outreach, U.S. Department of Education;
7) Assistant Secretary, Office of Legislation and Congressional Affairs, U.S. Department of Education;
8) Assistant Secretary, Office of Special Education and Rehabilitative Services, U.S. Department of
9) Assistant Secretary for Planning and Evaluation, U.S. Department of Health and Human Services;
10) Deputy Secretary, U.S. Department of Homeland Security;
11) Under Secretary for Management, U.S. Department of Homeland Security;
12) Director, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security;
13) General Counsel, U.S. Department of Homeland Security;
14) Under Secretary for Science and Technology, U.S. Department of Homeland Security;
15) Deputy Administrator, Federal Emergency Management Agency, U.S. Department of Homeland
16) Commissioner, U.S. Customs and Border Protection, U.S. Department of Homeland Security;
17) Principal Deputy Director, Office of the Director of National Intelligence;
18) Inspector General, Office of Personnel Management;
19) Under Secretary for Public Diplomacy and Public Affairs, U.S. Department of State;
20) Deputy Secretary, U.S. Department of Transportation;
21) Under Secretary for Health, U.S. Department for Veterans Affairs.
Image: Acting Deputy Secretary of Homeland Security Ken Cuccinelli is sworn in before testifying to the Senate Judiciary Committee’s Subcommittee on the Constitution about “anarchist violence” in the Dirksen Senate Office Building on Capitol Hill August 04, 2020 in Washington, DC. Photo by Chip Somodevilla/Getty Images