Good Governance Paper No. 7: Executive Branch Vacancies

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]

It’s no secret that President Donald Trump has spent most of his tenure willfully — if not gleefully — abusing the labyrinthine regime governing federal executive branch vacancies. Dozens of senior executive branch positions have gone unfilled for years on end (for instance, we haven’t had a Senate-confirmed Secretary of Homeland Security since April 10, 2019 — the longest-ever vacancy in the history of the Cabinet). And, in some cases (such as Deputy Secretary of Homeland Security, an office that has been vacant since April 15, 2018), no nominee has ever been submitted. Instead, the President has relied on a broad array of “acting” officials and officials who have been “acting” for too long to still call themselves that, all because it gives him more “flexibility” when he can put entire agencies in the hands of individuals who, for whatever reason, can’t make it through confirmation even by a friendly Senate controlled by his own party. The result has been to leave everything from immigration policy to arms control negotiations in the hands of individuals who both lack the necessary expertise for their jobs and have shown themselves to be little more than supplicants to Trump — willing to do anything and everything in the name of pleasing their boss, and beholden to nobody else, including a Senate that had no role in their installation.

Some of Trump’s vacancies machinations have crossed lines drawn by existing statutes. That’s why, among other things, former DHS Secretary Kirstjen Nielsen had to un-resign for long enough to fire the Trump appointed Undersecretary who otherwise would have succeeded her. Some of these appointments remain under legal challenge as of today, such as that of Chad Wolf as the Acting DHS Secretary and Ken Cuccinelli as the senior official performing the duties of the Deputy DHS Secretary.

But the real scandal is how many of the President’s maneuvers have been norm-violating but perfectly within the letter of the relevant laws, such as the appointment of Matthew Whitaker as Acting Attorney General. When Congress revamped the vacancies regime in the Federal Vacancies Reform Act of 1998 (FVRA), it prioritized flexibility over constraints, and worried more about the specter of a hostile Senate than an indifferent one. In the process, it simply didn’t account for a president who paid no political price, including within his own party, for so shamelessly cutting the Senate out of the loop to install un-confirmable and unqualified loyalists in important government jobs, perhaps indefinitely.

If nothing else, now we know better. In the analysis that follows, I identify five problems with the existing vacancies regime, and suggest ways that Congress could—and, indeed, should—fix them.

Problem no. 1: Too Many Choices

When an executive branch vacancy arises, the president can usually name whoever is next in line as the acting successor under that agency’s internal rules. But unless the agency-specific statute provides otherwise, the FVRA gives the president additional flexibility. Under 5 U.S.C. § 3345(a), the president can choose either the individual serving as “first assistant” to the vacant office; any Executive Branch officer who had been confirmed by the Senate to their current position; or any employee of the specific agency who is sufficiently senior (GS-14 or higher) and was employed by the agency for at least 90 of the 365 days preceding the vacancy. The second and third categories, in particular, yield a pool of hundreds — if not thousands — of potential acting officeholders, none of whom were confirmed by the Senate to the position at issue, and many of whom were never confirmed by the Senate at all.

One potential reform is to require the president to exhaust one pool at a time: To be required to name the “first assistant” in circumstances in which there is one; to then rely upon the pool of eligible senior officials from the agency at issue (which ought to be at least GS-15, if not Senior Executive Service or the equivalent); and to have access to the pool of all Senate-confirmed Executive Branch officers only as a last resort. Yes, such a reform would limit the president’s options. And it might even induce her to remove a “first assistant” who she doesn’t want to automatically become the acting officeholder. But as Trump has made clear, the alternatives are far worse, especially in conjunction with how long the FVRA permits these individuals to exercise the exact same authorities as a Senate-confirmed appointee to the office. (More on that below.)

Problem no. 2: Who is the “First Assistant”?

A second issue that the Cuccinelli case, in particular, has exposed is the extent to which the “first assistant” is often not identified by statute. Thus, to install Cuccinelli as the Acting Director of U.S. Citizenship and Immigration Services, the Department of Homeland Security created a brand-new staff position (the “principal deputy director”); declared that position to be the “first assistant” to the Director; and then appointed Cuccinelli to the brand-new job. (Cuccinelli was never confirmed by the Senate and hadn’t served at DHS long enough to be installed through either of the FVRA’s other mechanisms.)

It is probably unrealistic for Congress to identify the “first assistant” to every Senate-confirmed office in the Executive Branch. But Congress could, at the very least, (1) require each agency, on an annual basis, to publicly designate the position that is the “first assistant” to each Senate-confirmed office; and (2) bar agencies from changing that designation while the underlying office is vacant.

Problem no. 3: Changing the Rules After the Vacancy Arises

Even when it is clear which position counts as the “first assistant,” the FVRA does not require that the individual in that position have held it for any length of time. Thus, where the “first assistant” job does not require Senate confirmation, the president under the FVRA can name anyone as “first assistant” after the vacancy arises — thereby once again bypassing any requirement that the individual have previous service in that agency and/or Senate confirmation. This, too, can easily be fixed by amending 5 U.S.C. § 3345 to provide that a “first assistant” must hold that position at the time the vacancy arises in order to be eligible to be named the acting officeholder as “first assistant.” Congress could also require the official to have served in the position for some length of time to avoid last-minute hijinks.

Problem no. 4: Too Much Time “Acting”

The second and third reforms may seem technical, but they would be an important aspect of limiting the pool of individuals from whom the president could choose an acting officeholder to people actually qualified for the job. But no less important is how long that individual can exercise the duties of the vacant office. The FVRA itself seems to impose a 210-day limit, but there are three significant exceptions.

First, that limit can be extended for the time it takes for the president to nominate and the Senate to reject two different nominees plus another 210 days. It’s not hard to see how that could end up being several years.

Second, even when the FVRA expires, if the acting officeholder holds a permanent position in the agency at issue, he or she can be designated as the “senior official performing the duties” of the vacant office — a messier title, but one that may not make much of a difference with regard to what functions they’re allowed to perform (more on this below).

Third, and perhaps most important, where the president has relied upon a statute other than the FVRA (for instance, an agency-specific succession statute), there may be no statutory limit on how long an individual can exercise the duties of the vacant office. That’s why the Trump administration continues to refer to Chad Wolf as the Acting Secretary of Homeland Security even though he’s been exercising the duties of that office for well over 210 days.

The elongated time limits may already raise serious constitutional concerns, for reasons since, as Justice Clarence Thomas articulated in his concurring opinion in the Southwest General case, anything beyond a temporary appointment seems to violate the spirit (if not the letter) of Article II’s Appointments Clause. But constitutional problems or not, such lengths of time are also deeply unnecessary. The time limit should be reduced to 60 days, subject to extension if and only if the president nominates a permanent successor during that period, and only until the Senate formally approves or rejects the nomination (or the nomination is withdrawn). Thus, so long as the president nominates a permanent successor within 60 days, the ball would be in the Senate’s hands — to decide between confirming or rejecting the president’s nominee , or not acting on it at all (thereby leaving the acting officeholder in place). And although Senate quiescence would enable the president to leave an individual in position for longer than 60 days, Congress could impose an outer limit of 180 days on all acting appointments — which, if Justice Thomas is right, may already be what the Constitution requires.

Problem #5: No Shift in Duties

I’ve saved the most important and controversial reform for last. Central to the “flexibility” that acting appointments provide the president is the fact that, at least formally, there is almost no difference between the powers and duties of a Senate-confirmed officeholder and an individual who exercises the duties of such an office on an acting basis. (For one of the only counterexamples, see the Presidential Succession Act of 1947, which excludes Acting Secretaries.)

As the Presidential Succession Act underscores, Congress could constrain the powers and duties of acting officers. For instance, Congress could provide that acting agency heads cannot promulgate regulations, or, at the very least, that they cannot rescind or modify regulations promulgated by Senate-confirmed predecessors. Congress could also bar acting agency heads from altering internal agency structures. And so on.

The tricky part here is not to empower the Senate to kneecap a president of a different party by refusing to confirm any of her nominees. But this concern, which the past few years have driven home, can easily be legislated around: Congress should condition the reduction of an acting officeholder’s powers on the president’s refusal to submit a nominee to permanently hold that office.

Again, the goal of these reforms is to incentivize the president to honor the Constitution’s vision regarding appointments by filling these positions on a permanent basis — while also preserving her “flexibility” only in cases in which she has attempted to do so, but the Senate has rebuffed her. Of course, that might encourage the president to nominate individuals who are wholly unqualified to the post, but at least the Senate could then choose between that individual and the acting officeholder — just like when the Senate earlier this year chose to confirm Rep. John Ratcliffe to serve as Director of National Intelligence at least in part as an alternative to the even less qualified then-Acting DNI, Richard Grenell.

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Compared to some of the other essays in this series, vacancies reform may seem more than a little mundane. But if the last 45 months have taught us anything, it’s that there are reasons to be deeply wary of a regime in which the president can cut the Senate entirely out of the loop for senior Executive Branch positions. The reforms proposed above are not the only ways of fixing this regime, but they ought to provide at least a helpful jumping-off point for a conversation– and action by Congress — that is long overdue. In Federalist No. 76, Alexander Hamilton warned that allowing the President to pick and choose whoever he wants for executive branch positions without having to go through the Senate could lead to the “the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” As usual, he was right. 

About the Author(s)

Steve Vladeck

Executive Editor of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).