Rule of Law

Trump running out the clock on executive vacancies

President Trump could leave office with senior positions in government vacant or illegally occupied.

With only three months until Election Day and precious fewer days when Congress will be in session, Trump and the Senate have left scores of vacancies throughout federal agencies without confirmed appointees. The vacancies may provide Trump with greater flexibility, but government watchdogs say the procedure cuts the Senate out of its constitutional role and undermines good governance.

“What we’ve seen over time-and what has been particularly apparent during the course of the Trump administration-is the ways in which the existing legislative scheme can be abused,” said Brianne Gorod, chief counsel at the Constitutional Accountability Center.

Trump has left 137 executive vacancies without a nominee, according to the nonpartisan Partnership for Public Service and The Washington Post. The Homeland Security Department is most in need of attention; only about a third of the positions requiring Senate confirmation at DHS have been filled.

In the wake of a bipartisan congressional watchdog’s determination last week that the head of that department, acting Secretary Chad Wolf, was serving illegally, Trump said on Tuesday he would officially put Wolf up for Senate confirmation to his current role.

“We shouldn’t lose track of the big news: that the White House may actually be taking the appointments process seriously and nominating someone to a critically important job-after it sat vacant for more than 500 days,” Anne O’Connell, an expert on administrative law and professor at Stanford Law School, wrote in an email.

The Government Accountability Office found last week that Wolf’s tenure was already unlawful under a separate succession statute, boosting lawsuits challenging his capacity to serve.

The Trump administration has argued in court that Wolf is not bound by the 210-day limit that applies to officials serving under the Federal Vacancies Reform Act, which governs presidents’ ability to temporarily name officials while a Senate-confirmed nominee is approved. It appears likely the administration will argue that Wolf may continue to serve once his nomination is pending before the Senate. CNN reported Tuesday that Wolf planned to stay on.

Whether Wolf can continue serving “depends on whether the Vacancies Act applies,” O’Connell wrote. “If it doesn’t, Wolf can serve as acting secretary … while his nomination is pending. If the Act applies, he would have to step down while the nomination was with the Senate.

“I think the Vacancies Act does not apply here-either its time limits on acting service or its restrictions on nominees, and that the Homeland Security Act governs instead. But these are open questions,” she added.

Other legal scholars believe provisions of FVRA still apply to officials serving in an acting capacity under other succession statutes-like the law’s 210-day time limit and a provision barring acting officials from staying on once nominated. Wolf’s No. 2 at DHS, Ken Cuccinelli, was ousted from his post atop U.S. Citizenship and Immigration Services in March when a federal judge ruled his tenure unlawful under FVRA.

Wolf will likely be confirmed, as he was in November on a party-line vote to his current role as undersecretary for strategy, policy, and plans. And Democrats will likely throw up roadblocks, especially in light of his role in the federal crackdown on racial-justice protesters this summer.

“Given his past action, he’s an awful choice,” Senate Minority Leader Chuck Schumer told reporters on Tuesday.

Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson told Politico on Tuesday that he does plan to hold a hearing on Wolf’s nomination but that nothing has been scheduled yet.

There are precious few days for the Senate to fill these vacancies, 61 of which have been referred out of committee for the full body’s consideration. Lawmakers are scheduled to return to Washington after Labor Day, setting off a five-week sprint before they adjourn until the election.

Senate Majority Leader Mitch McConnell has dedicated the first week to the confirmation of five district-court judges with lifetime tenure. Three dozen additional judicial nominees are also pending before the Judiciary Committee or the full Senate.

Other senior government officials have continued to operate without Senate confirmation. Trump last month withdrew Anthony Tata’s nomination to be Defense undersecretary for policy after his nomination stalled due to the retired general’s history of inflammatory remarks.

Defense Secretary Mark Esper nevertheless appointed Tata to the second-highest policy job, as a “senior official performing the duties” of the deputy undersecretary for policy. The legal jiu jitsu let Tata enter the Pentagon’s policy shop without Senate confirmation.

“The administration recently disregarded our constitutional role with regard to advice and consent … when it was clear that he would not receive confirmation from this body,” Senate Armed Services Committee ranking member Jack Reed said at a hearing this month. “This is an abuse of power that continues to disturb me and should cause us all consternation about the appropriate role-constitutional role-of both the president and the United States Senate.”

Senate Armed Services Chairman James Inhofe said he canceled the Tata nomination hearing because the committee didn’t receive “the required documentation in time.”

“‘We’re simply out of time with the August recess coming,’” Inhofe said he told Trump last month, “‘so it wouldn’t serve any useful purpose to have a hearing at this point,’ and he agreed.”

William Perry Pendley, the acting director of the Bureau of Land Management, is similarly leading the agency despite the failure of his nomination. Trump withdrew Pendley’s nomination to lead the Bureau because of congressional opposition to his support for selling off public lands.

The entire Senate Democratic caucus has called on Interior Secretary David Bernhardt to remove Pendley and nominate “a qualified director for consideration through the regular confirmation process.”

“For the same reasons that Mr. Pendley is unfit to be confirmed as director, he is unfit to exercise the authority of the director without being confirmed,” the Democrats wrote to Bernhardt last week.

Washington has also failed to install career officials tasked with overseeing the coronavirus pandemic. McConnell and House Speaker Nancy Pelosi have yet to appoint a chairman to the Congressional Oversight Commission, which just issued its fourth report on the government’s response to COVID-19.

Inspectors general tasked with rooting out waste, fraud, and abuse of trillions of dollars in pandemic aid are also operating without the advice and consent of Congress. The Pandemic Response Accountability Committee set up by the CARES Act hasn’t had an official chair since Trump fired acting Pentagon watchdog Glenn Fine.

Justice Department Inspector General Michael Horowitz is filling the role in an acting capacity, as are IGs temporarily monitoring the departments of Defense, Education, Labor, and Transportation.

The Senate took another step toward ameliorating that earlier this month when the Commerce Committee held a hearing to consider Eric Soskin’s nomination to be DOT inspector general.

Sen. Maria Cantwell, the top Democrat on the panel, said she was troubled by the timing of Soskin’s nomination the same day as acting IG Mitchell Behm was fired, questioning whether Behm’s firing created an appearance of bias.

In the meantime, some House Democrats have shown an interest in reforming current vacancy law that the Trump administration has either ignored or shaped to its whim.

Rep. Katie Porter introduced legislation in May that would allow agency heads to serve in an acting capacity for just 120 days from the start of a vacancy. The bill would also require “first assistants” eligible for promotion to have served in their eligible position before a vacancy occurs and would require acting department heads to testify before Congress every 60 days.

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