One of Donald Trump’s signature governmental initiatives has been to circumvent, or ignore, the Senate confirmation process for top executive branch appointments. Trump’s most consequential gambit has been to terminate or force out confirmed officials at the senior levels of Cabinet departments and agencies and then either replace them with unconfirmed “acting” officials or delegate their powers to other officials. This conduct had precursors in prior administrations, but Trump took it to new extremes. Trump’s manipulation of the vacancies system skirts the check of the constitutional appointments process and denigrates the values underlying that process, which include ensuring competence and quality control, public vetting of appointees’ views, securing public commitments by appointees, and the legitimation of Article I confirmation. These problems and concerns can be fixed through statutory reforms.
Background
The Constitution addresses appointments of executive officials primarily in two provisions. The Appointments Clause specifies that certain executive branch officials, “Officers of the United States,” must be appointed by the president and confirmed by the Senate, while “inferior Officers” can be appointed by many bodies, depending on what Congress prescribes. [542] And the Recess Appointments Clause provides that the president “shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” [543]
From the beginning, presidents faced a problem when they needed to fill a vacant office temporarily but the president and Senate could not agree quickly on a replacement and a recess appointment was not possible because the Senate was in session. Congress addressed this issue in 1792 when it authorized the president to designate “any person” to act as an officer at the departments of State, Treasury, and War until a permanent replacement could fill the job. [544] Congress shortly thereafter placed a six-month limit on acting officials. [545] The next big innovation came in the Vacancies Act of 1868, which expanded the number of offices the president could fill with acting officials, while restricting who could serve as an acting official, and for how long. [546]
As the federal executive branch (and thus the number of federal officers) expanded enormously over the course of the twentieth century, the challenge of dealing with the growing number of temporary vacancies became more acute. This was especially true after Watergate, when the Senate began to demand more detailed background inquiries into nominees’ professional and personal histories and the length of the confirmation process expanded accordingly. The modern confirmation process also allowed Congress, and especially the party in opposition, to deliver “political payback ... as partisans look to settle scores from early confirmation defeats,” to cause the nominee to pay “for the prior political sins of unpopular presidents,” or in some other way to “send a message to the president.” [547] The Senate’s power was enhanced further by the fact that any senator could place a hold on a nomination, a weapon used regularly in executive-legislative power struggles unrelated to the merits of the affected nomination.
This more difficult confirmation process led to more vacancies in important executive branch positions. Governance problems arose because the number of executive officials who required Senate confirmation grew steadily. To take one benchmark, President John F. Kennedy had to fill 196 Senate-confirmed positions at the secretary, deputy secretary, under secretary, assistant secretary, and deputy assistant secretary levels. Almost four decades later, President Bill Clinton, in his second term, had to make more than 1,000 such nominations. [548] Today that number is around 1,200. [549]
Presidents responded to these challenges in part by increasingly use so-called “czars”—individuals appointed to a White House position, without any Senate confirmation, who wield authority in various policy areas in ways often indistinguishable from that of a Cabinet secretary. They also sought to evade congressional restrictions on temporary “acting” officials for vacant offices. For example, the executive branch maintained that a department head could ignore the strictures of the then-extant vacancies law and appoint acting officials for Senate-confirmed slots for an indefinite period when (as was typically the case) a department’s “organic act vests the powers and functions of the department in its head and authorizes that officer to delegate such powers and functions to subordinate officials.” [550]
Through the use of this “delegation strategy” and through exploitation of other loopholes in the vacancies law in force at the time, the executive branch got in the habit of skipping the Senate confirmation process for many sub-secretary appointments. By 1998, around 20 percent of all Senate-confirmed positions across fourteen departments were held by acting officials, most of whom were serving beyond the 120-day limit authorized by the then-governing statute. [551] The Senate grew especially furious about this circumvention of its constitutional prerogatives when Bill Lann Lee served as acting assistant attorney general for civil rights for more than two years beginning in late 1997 even though the Senate had rejected his nomination for that very position. [552]
To redress presidential manipulation of the vacancies process, Congress in 1998 enacted the Federal Vacancies Reform Act, or FVRA. [553] The FVRA establishes rules for presidents to appoint temporary acting officials to positions for which Senate advice and consent is otherwise needed. By its terms the FVRA sometimes operates in conjunction with statutes that provide agency-specific rules for the appointment of acting officials.
The FVRA applies when an officer whose appointment requires advice and consent “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” [554] When this happens, the first assistant to the vacated office automatically assumes the role on an acting basis, unless the president selects either a Senate-confirmed officer elsewhere in the administration or a senior employee (defined by reference to the employee’s pay grade and time in the department) within the same agency.
All the acting appointments under the FVRA are subject to time limitations. The basic limit is 210 days, but the clock stops running if the president has submitted a nomination still pending before the Senate. If the Senate rejects or returns the president’s nomination, or the nomination is withdrawn, the time period is reset at 210 days and begins to run again. A second nomination also tolls the 210-day period of permitted acting service. If the second nomination also fails, then one more and final 210-day period begins to run. As Anne O’Connell has noted, this scheme in theory permits an acting official to serve for more than two and a half years. [555]
The FVRA prohibits the president from nominating someone for an advice-and-consent office who is filling the office on an acting basis. In other words, one may be either the acting official or the nominee to the post, but not both. The FVRA provides one exception to this restriction: The president may nominate a first assistant whose position required Senate confirmation and who had served in that role for ninety days or more. Another provision reflects the same focus on protecting the Senate’s advice-and-consent role. It allows the president to direct an official whose confirmed term had already expired to continue to serve on an acting basis if nominated again to the same post. The statute also provides that any actions taken by a person who has not assumed interim authority as prescribed by the statute “shall have no force or effect.” It also created for agencies a duty to report vacancies, the appointment of acting officials, and nominations to fill vacant posts to the Government Accountability Office.
The FVRA did not end heavy presidential reliance on nonconfirmed officials in offices that require Senate confirmation. It gives the president pretty broad discretion, with fairly long time periods, to appoint acting officials for vacant Senate-confirmable slots. And presidents have used this authority as they saw fit. The need to do so grew after the Supreme Court’s decision in NLRB v. Noel Canning [556] and the Senate practice of conducting pro forma sessions practically killed the possibility of recess appointments.
Another reason the FVRA was not a high hurdle to heavy reliance on nonconfirmed officials is that the executive branch read the FVRA to permit it to “continue[] to invoke the delegation strategy, effectively creating a cadre of shadow acting officials ... [by] delegat[ing] power to people who would be ineligible to ‘act’ under the FVRA’s qualifications requirements, time limitations, or both.” [557] On this view, the department or agency basically has discretion to delegate all powers not assigned by law exclusively to the vacant office—which in most cases are most if not all powers of that office.
The two administrations before Trump’s used this strategy despite the FVRA. The Bush administration’s deputy head of the Office of Legal Counsel (OLC), Steven Bradbury, was nominated at least four times to the top post at OLC but the Democratic-controlled Senate never confirmed him. Yet he continued to lead the office and sign OLC opinions through delegated power and other maneuvers. [558] Similarly, the Obama administration never nominated anyone to replace the director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) when he stepped down in April 2015. It instead gave the job to the nonconfirmed career deputy under the FVRA. When the 210-day clock ran out, the deputy continued to serve in the same role, without the “acting” title, through delegated authority. Politico reported that the administration did this “to avoid a nasty confirmation hearing” before the Republican-controlled Senate for an agency that had been “troubled” by the “Fast and Furious” scandal—a controversial ATF program that used illegal guns to track the sellers and purchasers. [559]
An analysis of the Obama administration at the dawn of its eighth year found that “dozens of crucial [Cabinet agency jobs] ... are either totally empty or run by an acting deputy,” and that “[m]ore than a quarter of the administration’s most senior jobs, more than 100 overall, are missing permanent occupants.” [560] The George W. Bush administration also used acting officials extensively. A report near the end of Bush’s sixth year in office found that three Cabinet secretary positions (including the attorney general) were occupied by acting officials, and that the second and third positions at the Justice Department, as well as more than 25 percent of U.S. attorney positions, were filled with acting appointees. [561] More broadly, “the vacancy rate for senior jobs” in the Bush administration was reportedly “far higher at the end of the Bush administration than it was at the same point in the terms of Mr. Bush’s recent predecessors.” [562]
In short, despite the FVRA, presidents before Trump relied heavily on non-Senate-confirmed officials in offices that require Senate confirmation. A factor contributing to this practice was surely the Senate’s more aggressive use of procedural mechanisms—holds, filibusters, and the like—to stall or block the confirmation of presidential nominees. As one analysis noted, “George W. Bush faced the most procedural hurdles and filibusters to his nominees until Barack Obama was elected and faced historic blockades.” [563] Bush faced thirty-nine filibusters on nominees over eight years, and Obama faced 175 over the same number of years.
The Trump Era
“I like acting,” President Trump once declared. “It gives me more flexibility.” [564] Unsurprisingly, Trump has surpassed his predecessors in running an “acting” government. The data suggest that Trump has had much greater turnover in top positions, and exploits vacant offices with temporary officials more frequently, than his predecessors. Once again, a contributing factor to this pattern was the Senate, which by June 2020 had conducted an unprecedented 314 filibusters of Trump’s nominations. But the Trump administration’s vacancies practice was much more than a response to these filibusters. The administration often used the gaps and loopholes in vacancies law—in combination with firings, forced resignations, unusually high turnover rates, and failures to nominate candidates for vacant positions—to gain flexibility and control over the executive branch.
As of April 2019, just over two years into Trump’s term in office, fifteen people who had served in his Cabinet had left the administration. The comparative numbers for Presidents Obama and George W. Bush for their two terms were seven and four, respectively. [565] For only about four months of Trump’s first two and a half years in office did he have a fully confirmed Cabinet in place. [566] One study found that from the Carter through Obama administrations, three in ten Cabinet members whose positions were subject to confirmation served on an acting basis. In Trump’s executive branch, those numbers have risen to a little more than half: twenty-two of forty-two. [567] As of January 2020, Trump had thirty acting Cabinet secretaries during his three years in office. By comparison, President Clinton had twenty-seven across his eight years, President Bush had twenty-two across eight years, and President Obama had twenty-three across eight years. [568] Trump’s acting officials serve in office much longer, on average, than those of his predecessors. The evidence also suggests that Trump has used acting officials below the secretary level, and in sub-Cabinet agencies, more than his predecessors. [569]
A deeper dive into some of Trump’s more prominent uses of the FVRA shows how he has exploited the vacancies system to his advantage. In late 2017, Trump installed Mick Mulvaney, the Senate-confirmed director of the Office of Management and Budget (OMB), as acting head of the Consumer Financial Protection Bureau (CFPB), an agency Trump despises. The CFPB’s organic statute stated that the deputy director, then Leandra English, “shall ... serve as acting Director” when the director is absent or unavailable. [570] English sued for her job. The Trump administration argued that the FVRA’s authorization of the president to appoint a Senate-confirmed officer controlled, a federal district court agreed, and English eventually dropped the lawsuit.
Something similar happened in early 2018, when Trump fired Secretary of Veterans Affairs David Shulkin and replaced him with Robert Wilkie, who had been confirmed as undersecretary of defense for personnel and readiness. Several veterans’ groups filed suit. Their argument—one that became an important point of contestation under the FVRA during the Trump administration—was that a vacancy created by presidential firing did not implicate the FVRA because a fired official is not someone who “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” When Trump nominated Wilkie for the permanent role (and appointed a new acting secretary in the interim), the groups withdrew the suit.
When Trump pushed out Secretary of Defense James Mattis, Deputy Secretary of Defense Patrick Shanahan became acting secretary under both the Defense Department succession statute and the FVRA. [571] After Shanahan served six months as acting secretary, Trump appointed Army Secretary Mark Esper to the acting position but then quickly nominated Esper for the permanent post. Because the statute would not allow Esper to continue in an acting role while his nomination was pending, Trump was required to appoint a third acting defense secretary.
In early 2020, when conflict between the United States and Iran over nuclear arms control and clashing regional interests intensified, the Trump administration had no confirmed official in these relevant positions: director of national intelligence, deputy director of national intelligence, commissioner of U.S. Customs and Border Protection, under secretary of state for arms control, assistant secretary of state for Europe, secretary of the Navy, or director of Immigration and Customs Enforcement. [572] The year before, in early 2019, the Department of Homeland Security, the Department of the Interior, the Environmental Protection Agency, and the Social Security Administration were also headed by acting officials. [573] Throughout its term the administration was full of similar vacancies at lower levels. Some of these vacancies resulted from Senate recalcitrance (especially the filibuster), and some from the administration simply not nominating anyone.
One of Trump’s most high-profile vacancy moves was his replacement of fired Attorney General Jeff Sessions with Sessions’s unconfirmed chief of staff, Matthew Whitaker. Deputy Attorney General Rod Rosenstein became the acting attorney general after Sessions was fired under a statute on Justice Department governance that specified succession at the senior levels. But OLC concluded that this statute did not supplant the president’s discretion under the FVRA, which Trump used to appoint Whitaker as acting attorney general. [574] The appointment allowed Trump to put the department under the control of an unconfirmed officer to whom senior confirmed officials, including the deputy and associate attorneys general, would report. This raised concerns that Trump would use his leverage over Whitaker, and Whitaker’s authority over Rosenstein (who under department rules still supervised Special Counsel Robert Mueller) to limit, if not end, Mueller’s Russia investigation. This fear proved unfounded, but many people, including several Republicans, believed that the Mueller investigation is what motivated the move. Several lawsuits challenged the validity of the Whitaker appointment, but they all failed.
Trump also sought to enhance his grip on border and immigration issues through the vacancies process. Trump forced Secretary of Homeland Security Kirstjen Nielsen, who disappointed him, to resign. He then appointed as acting secretary the Senate-confirmed commissioner for Customs and Border Protection, Kevin McAleenan, who satisfied the criteria for actings under the FVRA. This appointment initially didn’t work because Congress, in a Homeland-Security-specific statute that expressly trumped the FVRA, designated the under secretary of management at the time, Claire Grady, to serve as acting secretary when the secretary and deputy secretary positions are vacant. Trump solved his problem by having Nielsen withdraw her resignation and then demanding that Grady resign. When she did so, Nielsen resigned once more, and the statute no longer applied (since the under secretary of management slot was vacant). Under the FVRA, the president then successfully made McAleenan the acting department secretary.
In another maneuver to install the acting of his choice, the president in May 2019 asked for and received the resignation of the head of the U.S. Citizenship and Immigration Services (USCIS), Lee Cissna. Trump wanted to replace Cissna on an acting basis with former Virginia Attorney General Ken Cuccinelli. But Cuccinelli was not serving in the administration and thus did not even nominally qualify for acting appointment under the FVRA. To overcome this hurdle, the agency created a “principal deputy position” and the president hired Cuccinelli for that position. With that step, Cuccinelli became the “first assistant” and then, under the FVRA, the acting director of USCIS. [575] However, a federal court later ruled that Cuccinelli’s appointment was unlawful, and the court thus invalidated several directives he had issued while in office. [576] Judge Randolph Moss held that Cuccinelli’s office never was second in command to the director, since it was created after the vacancy arose and would cease to exist once the vacancy was filled. As a result, the agency had created a deputy position for Cuccinelli to fill that was “second in command in name only” and thus unlawful under the FVRA.
Most recently, Trump has fired several agency inspectors general and used his FVRA authority to appoint acting inspectors general more to his liking. The slew of inspector general removals began on April 3, 2020, when Trump removed Intelligence Community Inspector General Michael Atkinson. Under a separate statute, presidents must give Congress thirty days’ notice before firing an inspector general. [577] So Trump fired Atkinson, effective in thirty days, and placed him on administrative leave in the interim. As soon as Trump placed Atkinson on administrative leave, he appointed an acting replacement. Over the next month and a half, Trump removed three acting inspectors general (at the Department of Defense, the Department of Health and Human Services, and the Department of Transportation). These removals illustrated the added flexibility that attaches with acting officials, since, unlike Atkinson’s firing, Trump did not need to provide Congress with advance notice before removing an acting. And then on May 15, Trump fired State Department Inspector General Steve Linick. As with Atkinson, Trump apparently placed Linick on leave in the intervening thirty days and appointed an acting replacement.
Trump also relied heavily on the delegation strategy to fill vacant offices that require Senate confirmation. To take one of many examples, between January 2017 and May 2020, the secretary of the interior frequently delegated to other individuals the powers of “vacant non-career Presidentially appointed and Senate-confirmed positions for which there is no Principal Deputy that would automatically become acting[.]” [578] The May 2020 version of the order doing so delegated “[a]ll functions, duties, and responsibilities” of five vacant offices requiring Senate confirmation to various nonconfirmed officials. [579] An analysis of Trump administration vacancies in April 2019 suggested that almost twice as many vacant offices were being carried out by officials exercising delegated authority as by acting officials under the FVRA. [580]
To give a different view of the Trump administration and vacancies, consider an analysis by the Washington Post and the Partnership for Public Service, which together have followed 755 key executive branch positions that require Senate confirmation. [581] On July 13, 2020, a month before this book went to press, only 513 (68 percent) of these slots were filled. Almost a third were vacant, and 19 percent didn’t even have a nominee. The Department of Homeland Security had only 35 percent of its officials confirmed, and no one had been nominated for any of the vacancies, including the offices of secretary (empty since April 24, 2019), deputy secretary (empty since April 15, 2018), and general counsel (empty since September 17, 2019). The Justice Department was operating at 45 percent of its Senate-confirmed capacity, and the Defense Department at two-thirds capacity.
This necessarily selective overview reveals several characteristics of the Trump administration’s uses and abuses of vacancies law and processes. First, the Trump administration more than its predecessors relies on acting officials to fill vacant executive branch positions requiring Senate consent. It has done so by exploiting the FVRA and aggressively using the delegation strategy. Second, Trump, more than his predecessors, uses the president’s power to terminate or push out officials (or to not nominate them), in combination with the FVRA and other mechanisms, to skirt the confirmation process and ensure greater control over agencies. The Whitaker example shows that the president could have used such control to ensure that confirmed officials supervising a supposedly independent investigation of the president were under the supervision of a nonconfirmed presidential appointee. And other times, as in the case of the CFPB and the inspectors general maneuverings, the president used firings plus FVRA authorities to enhance his power over ostensibly independent entities.
Reform
The executive branch vacancies problem is too complex to address here comprehensively. [582] We focus mainly on the upper echelon of Senate-confirmed executive branch offices and outline the central tenets that we believe any reform should include. Our reforms aim to restore the balance between the Senate’s constitutional prerogative to vet officers of the United States with the president’s need for flexibility in keeping the government running during periods of office vacancy. Right now the executive branch has too much discretion to create and fill vacancies in a way that skirts the Senate’s check and other public accountability mechanisms. But there is always a danger of going too far and allowing a recalcitrant Senate—especially one controlled by a party that opposes the president—to block effective governance through its refusal to confirm nominees. We propose significant reforms of the law of vacancies and also that Congress require Senate confirmation for far fewer executive branch officials.
Before turning to reforms, we explain why Congress has broad authority to regulate the president’s options for choosing acting appointments. At first glance it might seem like this is a presidential prerogative under the Appointments Clause. But the Appointments Clause is not the source of the president’s power to appoint acting officials for temporary vacancies. The Take Care Clause is. And the presidential power to appoint under this clause operates only until Congress specifies a different method, as it has done in the FVRA. As a 1995 OLC opinion explained, the FVRA “constitutes a restriction on the President’s authority, as opposed to a source of power. If it applies to a given position, the [FVRA] constitutes the sole means by which a temporary appointment to that position may be made.” [583] OLC opinions in administrations of both parties have confirmed this view. [584]
These opinions suggest that there are few if any structural constitutional constraints on Congress’s power to guide the president’s choices for acting officials. Congress has a long history of providing specific and narrow criteria that presidents must follow in filling vacancies. And it sometimes specifies the official who shall operate as acting when there is a vacancy, leaving the president no discretion. [585] There is a question about whether and for how long it would be consistent with the Appointments Clause for a president to fill a principal office with a non-Senate-confirmed person (such as a Senior Executive Service or GS-15 employee), as happened with the Whitaker appointment. OLC has ruled, in reliance on United States v. Eaton , that the Appointments Clause does not bar such arrangements as long as they are “special and temporary.” [586] Every lower court that considered Appointments Clause challenges to Whitaker’s three-month tenure rejected them.
In sum, Congress has a lot of constitutional room to constrain the president’s options for acting replacements for vacant executive branch offices.
Limit the President’s Options for Actings Under the FVRA
The FVRA is too promiscuous in giving the president unstructured discretion to fill almost all vacancies of Senate-confirmed offices with either the first assistant to the office (who might or might not be Senate confirmed) or a Senate-confirmed official elsewhere in the government or a non-Senate-confirmed GS-15 or higher in the same agency who has served for more than ninety days. We consider reform of this problem in two steps: vacancies for Cabinet secretaries or agency chiefs who are not part of a Cabinet office (such as the Environmental Protection Agency), and vacancies for positions below those levels.
There is no good reason for a president to have the unstructured discretion conferred by the FVRA to fill vacant Cabinet offices or the offices of agency heads. This discretion is one reason Trump was able to bypass the many Senate-confirmed officers in the Justice Department and appoint the underqualified and underscrutinized Whitaker as acting attorney general. The FVRA should be amended to make clear that in appointing an acting official for a Cabinet secretary or an agency head, the president must choose the first assistant, and if the first assistant is absent, then the president must choose among Senate-confirmed officials within the department or agency. In other words, the department or agency should be run by a confirmed official from within if at all possible. (The Whitaker appointment, for example, would not be possible under this reform.)
Congress should also structure the FVRA so that, after these options have been exhausted, the president must replace a department secretary or an agency head with a Senate-confirmed official in another agency. With one exception, we do not favor allowing a nonconfirmed official to act as the head of a department or an agency. The exception is that a nonconfirmed official should be able to run the department or agency for the first four months of a president’s term, or longer if no other official has been confirmed for that position at the outset of an administration.
Congress should give the president more flexibility for filling lower-level vacancies for Senate-confirmed offices. Commentators have offered many possibilities here. We believe that in combination with other reforms suggested below —shortening time frames for actings, limitations on who can be the “first assistant,” limitations on delegations, and special rules for independent agency offices—the basic FVRA options (first assistant, Senate-confirmed official, or GS-15 or higher in office) suffice. It is vital that these other reforms be adopted if the FVRA system below the top spot is to be maintained.
We propose different and narrower limitations on the president’s options to appoint acting inspectors general. Trump has shown how the FVRA as currently enacted permits a president to gut the quasi-independence of these important offices that Congress sought to protect. He simply fired or pushed out the inspector general, who lacks for-cause protection, and then replaced him or her with someone more congenial from among the wide array of options provided by the FVRA. To address this problem, and to reduce presidential incentives for gamesmanship, we propose that a vacant office of the inspector general can be replaced only by a Senate-confirmed inspector general from another agency, or a GS-15 official or higher official within the office who has been there for more than three years. This will ensure that only a Senate-vetted inspector general or someone with deep experience in the office will run the office on a temporary basis.
Congress could do something similar for agencies to which it wants to give at least quasi-independent status. If there is no confirmed analogue in another agency, Congress could insist that the temporary replacement be limited to a long-term official in the agency pending nomination and confirmation of a replacement.
Shorten Time Limits on Acting Officials
The FVRA’s allowed time for acting service is too long. As noted earlier, an acting can serve for several 210-day time periods depending on the pattern of nominations and Senate rejections. Congress should shorten the time limit, but how to do so is a matter of much debate. The precise time limit matters much less if our other reforms are adopted than it does under the FVRA at the moment. But in any event, we believe an acting should be able to serve 120 days in office, with one renewal for a failed nomination, and then no more after that. This proposal is something of a compromise among various reforms offered by expert commentators.
Clarify “First Assistants”
The Cuccinelli example reveals an important potential loophole in the FVRA. The statute gives the president the authority to fill a vacancy with a “first assistant.” But it does not define “first assistant” and does not specify whether that first assistant for purposes of the FVRA must be in place at the time of the vacancy. If the first assistant need not be in place at the time of the vacancy, then the president has extraordinary discretion under the FVRA to put in basically whomever he or she wants from inside or outside government to fill a vacant Senate-confirmed office. Judge Moss invalidated Cuccinelli’s orders on the ground that his first assistant role was illegitimate because it was temporary, but he did not rule on whether the FVRA permits first assistants to be named after the vacancy opens.
To avoid this problem, Congress should specify that a first assistant within the meaning of the FVRA must be named and in place before the vacancy arises. We agree with O’Connell that this rule should have two exceptions: “The President should be permitted to name a first assistant after the vacancy arises (1) if the vacancy occurs during the first six months of a new administration, and (2) if the first assistant at the time of the vacancy dies (or falls ill) while serving.” [587]
Limit Delegations of Power
As noted earlier, the Trump administration appears to be relying on delegated authority even more than actings under the FVRA to fill vacant Senate-confirmed offices. This is an important piece of the vacancies puzzle. But it is hard to address in a simple, general way. Practically every one of the 1,200 or so relevant federal offices has different nonexclusive powers that operate (and can be delegated) in different, context-dependent ways. The government needs to keep running in the face of vacancies, and the FVRA cannot address every vacancies concern that might arise. Eliminating delegated powers would, given the constraints of the FVRA, mean that in some instances basic government functions could not be performed.
One option would be to limit delegations to those in place when the vacancy arises. But this solution might create perverse incentives to over-delegate in the first place, and it would also mean that some functions of government could not be carried out when time limits on actings expired. Another option, but one that requires agency-by-agency statutory amendments that Congress might not have the capacity to execute, would be to increase the number of exclusive functions for an office or impose a limitation on the offices to which tasks can be delegated. At a minimum, Congress should address the executive branch’s use of delegated power as a direct affront to the Senate confirmation process. Thus, Congress should specify that someone who has been nominated but not confirmed for a position (like Bradbury at OLC, in the earlier example) cannot thereafter exercise the delegated powers of the office for which he or she was not confirmed. Congress could also prohibit delegations of function for an office for which the president has not nominated someone within a specified time period—say, 120 days. [588]
Enforce the FVRA
Enforcement of the FVRA is lacking in two ways and should be improved. First, agency action that results in violations of the FVRA has “no force or effect.” But the only way to enforce this remedy at the moment is for someone to sue. This approach has been successful on a few occasions, but these lawsuits are expensive and standing is a hurdle, especially after a nominee is confirmed. Congress could rectify this problem by expressly conferring a cause of action on anyone adversely affected by an agency action issued by an officer in violation of the FVRA. That would expand the pool of possible plaintiffs and discipline aggressive readings of the FVRA. Congress could also have the Government Accountability Office examine and regularly report on alleged FVRA violations. Second, agencies persistently underreport their vacancies, acting officials, and nominations, as required by the FVRA. Congress should impose stricter, more informative, and quicker notice requirements on agencies and departments, and tie their funding to satisfaction of these requirements.
Specific Applications of the FVRA
The FVRA is ambiguous about how it relates to agency-specific succession statutes. It claims to be the exclusive means for temporarily authorizing an acting official for a Senate-confirmed office unless “a statutory provision expressly” provides another arrangement. [589] OLC has interpreted the FVRA in many cases to be an independent basis for the president to appoint acting officials even when an agency-specific statute provides otherwise. Thus, for example, the Justice Department succession statute provides that the deputy attorney general, and then a series of other Senate-appointed Justice Department officials, “may exercise all of the duties” of the Office of the Attorney General. But OLC interpreted the FVRA as an alternative to this department-specific scheme to allow Whitaker rather than the confirmed Rosenstein to run the Justice Department. Similarly, the president appointed Mulvaney to run the CFPB pursuant to the FVRA and disregarded the agency-specific succession rules—an interpretation upheld by a federal court.
Many aspects of the problem with this ambiguity are resolved by our proposed FVRA amendment to require in every instance a Senate-confirmed official to act as head of the department or agency. But to clean up this corner of the FVRA, Congress should make clear that agency-specific succession statutes take precedence over the FVRA, as it has done with the Homeland Security statute. Or it could amend the FVRA to list all agency-specific succession statutes that should be given priority over the FVRA. Either way, the FVRA should operate as a backup when the agency-specific statute results in no one being able to serve.
There is also a question of whether the FVRA applies when the president fires someone. Some observers have contended that a terminated official is not one who, under the FVRA’s triggering criteria, “d ies, resigns, or is otherwise unable to perform the functions and duties of the office.” [590] The FVRA is ambiguous on this question. The policy argument for not allowing the FVRA to apply after a termination is that, as currently worded, it gives the president too powerful an incentive to terminate Senate-confirmed officials and exploit the various options allowed by the FVRA and delegation. We believe our reforms, if adopted, adequately temper those incentives by removing the worst avenues of presidential manipulation. We thus propose that, in conjunction with the other reforms, Congress eliminate this ambiguity in the FVRA’s scope by making clear that it applies even for vacancies created by presidential termination.
Reduce the Number of Senate-Confirmed Positions
The preceding reforms will, we believe, constrain the president’s options to fill vacancies pending confirmation of a replacement without unduly restricting the president’s ability to run the government. Right now, as noted, around 1,200 executive positions require Senate confirmation. As also noted, the Senate during the past three administrations has grown more and more aggressive in using procedural mechanisms—holds, filibusters, and the like—to not confirm presidential nominees.
The combination of a huge number of officials who require confirmation, plus a more aggressive use of techniques by minority members of the Senate to block nominees, is one major impetus for presidents to use the tactics described in this chapter to fill vacancies. The incentives for the minority party to use these techniques are overwhelming and growing, since they can delay a nominee significantly and eat up valuable Senate floor time that could be used on, for example, judicial confirmations (which no longer face these procedural mechanisms to the same degree). This problem can be expected to continue to grow in the future.
It is vital that Congress do something about this problem as part of any comprehensive reform of vacancies law. We do not expect the Senate to give up its filibuster and nominee-hold prerogatives any time soon. But Congress can and should significantly reduce the number of executive branch positions that require confirmation. Hundreds of Senate-confirmed offices are midlevel positions that receive little close scrutiny in any event. In exchange for significant vacancies reform, which will require presidential buy-in to avoid a veto, Congress should eliminate the requirement of Senate consent for hundreds of these midlevel slots.