November 19, 2019, 18:26

How Trump’s overreliance on acting officials could backfire

How Trump’s overreliance on acting officials could backfire

“I like acting,” President Donald Trump said in January. “It gives me more flexibility. Do you understand that? I like acting. So we have a few that are acting. We have a great, great cabinet.”

Trump’s love of “actings” — officials appointed in a temporary capacity to fill an executive branch vacancy — is becoming a defining feature of his administration.

This week, Homeland Security Secretary Kirstjen Nielsen resigned under pressure from the president. Trump named Kevin McAleenan, the commissioner of US Customs and Border Patrol, to serve as the acting DHS secretary.

The president’s decision to pick McAleenan appeared to sidestep a DHS statute that says the Under Secretary for Management, Claire Grady, is the one who fills in as the top acting official until a new permanent secretary is confirmed.

On Tuesday, Grady — who had also been serving as the acting deputy DHS secretary — tendered her resignation, ostensibly so McAleenan’s appointment would go unchallenged.

Trump also removed Secret Service Director Randolph D. “Tex” Alles on Tuesday. It revealed just how depleted the agency is, lacking a permanent FEMA administrator and a permanent head of US Customs and Immigrations Enforcement (ICE). Trump, in fact, had pulled his nominee, acting head Ron Vitiello, late last Thursday.

And this all happened in the middle of what Trump calls an “emergency on the southern border.”

But the depleted Department of Homeland Security isn’t alone. An acting secretary has led the Department of Defense for more than 100 days — the longest an acting head has ever served as the top Pentagon official. An acting secretary leads the Department of the Interior. There’s an acting head at the FDA, and an acting UN ambassador.

All presidents rely on acting officials, especially at the beginnings and ends of presidential terms.

But Trump stands alone, not just for the number of administration nominations left open, but for the pace of turnover at this stage in his presidency. Trump has had 15 Cabinet departures so far, and he’s not even through his first term. According to Bloomberg’s Jonathan Bernstein, Trump last had a full, confirmed cabinet on March 28, 2018, more than a year ago.

Trump says he likes the flexibility of acting officials, but that seems to be a euphemism for avoiding oversight and the Senate’s constitutional role of advice and consent.

Temporary acting officials are time-limited — the standard is 210 days — but they’re otherwise empowered in the same way that confirmed secretaries and deputy secretaries are. But having too many of them erodes the stability and authority of the federal government, and creates uncertainty around decision-making and policy implementation.

And that, in the long run, probably isn’t great for the president or his agenda.

“Imagine going to the hospital, being on a gurney, about to get a heart transplant, and somebody steps in and says ‘Oh, I’m going to be the acting surgeon,’” Paul Light, a professor of public service at New York University, told me. “It clarifies your thinking real fast.”

The Federal Vacancies Reform Act is getting a workout under Trump

Trump selects his acting officials courtesy of the Federal Vacancies Reform Act of 1998 (FVRA). That lays out which positions can be filled temporarily — basically all Cabinet-level positions and heads of executive agencies who are nominated by the president and confirmed by the Senate.

The FVRA says three types of people can serve as actings. The first, and the default, is the “first assistant” — usually the No. 2 person. So when Trump pushed out Secretary of State Rex Tillerson in March 2018, Deputy Secretary of State John Sullivan became the acting secretary.

The second is any other Senate-confirmed person, from anywhere else in the federal government. Trump did this with the Department of Veterans’ Affairs in 2018: He originally named Robert Wilkie, a Senate-confirmed Department of Defense undersecretary, as the acting VA Secretary. (Wilkie, who’s now the confirmed VA secretary, had to temporarily step aside after he was formally nominated because, technically, acting officials are not eligible to be nominated for the full-time post unless they’re in that first-assistant category mentioned above.)

Finally, Trump can also choose an acting official from a third category: any federal employee paid at the level of GS-15 or higher on the federal pay scale — what’s typically referred to as a “senior careerist” — and who has been in their position for at least 90 days. Trump did this when he named Matthew Whitaker as acting attorney general after Jeff Sessions resigned in November 2018. Whitaker was Sessions’s chief of staff.

The Federal Vacancies Reform Act also lays out how long someone can serve as an “acting.” The standard is 210 days or until a permanent replacement is nominated and confirmed, though the clock can restart if, for example. the nomination is rejected by the Senate. But once an acting official’s tenure officially expires, another acting can’t step in.

Even so, a lot can happen in that time period an acting official serves. And acting officials are empowered to do the same job as Senate-confirmed officials — which is why vacancy appointments matter.

The FVRA is supposed to be a stopgap measure. Trump uses it as a solution.

The Federal Vacancies Reform Act is basically a compromise between the executive and legislative branches. The president gets the ability to choose his personnel and keep his administration running when jobs open up. But the law also imposes guidelines on who can step in when a vacancy arises and imposes deadlines on that length of service, which allows the Senate retain some of its confirmation authority.

In other words, the FVRA is “an important stopgap measure,” Anne Joseph O’Connell, a law professor at Stanford and an expert on federal vacancies, told me. “It’s this very delicate balancing act. You need enough flexibility for the White House, but you also want to make sure it doesn’t become the primary way of staffing these critical positions.”

And that’s the worry with Trump: that the president loves the flexibility of acting officials because it’s a quick way to get the Cabinet he desires without having to go through a potentially tough Senate confirmation fight. He can rely on it to shuffle his Cabinet, rather than as a fallback that’s only supposed to be used when truly needed.

After all, acting officials can do whatever Senate-confirmed secretaries can do, and the confirmation process takes time — and doesn’t always go as planned. This way, the president can just sidestep that whole process and pick the officials he wants. And a lot can get done in 210 days.

But there are serious drawbacks to staffing a federal government with people who are essentially temps. Max Stier, president and CEO of the Partnership for Public Service, a good-government nonprofit, calls it the “substitute-teacher” phenomenon. “Formally, the substitute teacher has all the authority of the regular full-time teacher, but they’re not treated that way,” he told me. “They not treated that way by people on the outside, their students, other teachers, and they don’t self-perceive that they have that same authority.”

A lot of that has to do with the reality that no one knows how long a substitute teacher — or an acting official — is going to be in place. That uncertainty makes it hard to run agencies as large as many departments in the federal government are.

Colleagues might be less likely to trust an acting official’s decision-making, since it’s not clear how long they’ll be in office. People who work for the agency might be more wary of listening to the authority of someone who’s temporary. It’s probably hard to fill other jobs in these agencies with an acting head in place, too, as people don’t actually know who their boss will be in the long term.

“It erodes the organization’s direction when you don’t know who’s there, who has the authority to execute what decisions, and for how long that authority might last,” Light, the NYU professor, told me.

“It’s like going to the theater and hearing that the understudy is going to be performing the role of Macbeth,” he added. Sometimes you do need an understudy, but “it’s not as good,” he said. “It creates this sense of discomfort and chaos within an organization to have acting upon acting upon acting.”

So having “acting” in front of the title matters. It’s a literal signal that there is an expiration date to their tenure — and they can’t stick around longer, otherwise their actions can be voided, opening up the administration to legal challenges. Acting officials simply have less standing compared to officials who have gone through the full confirmation process. The Senate’s approval, in other words, confers the legitimacy.

Which means that while Trump might have more sway over his personally selected acting officials, they might have less sway over the agencies they’re supposed to run, O’Connell, the Stanford law professor, told me. “Even though they have the same formal power, as a matter of practice they don’t have the same stature, typically,” she explained.

This is kind of self-imposed chaos is also bad strategy, as it can simply diminish the effectiveness of agencies. At an organization such as DHS, it might affect readiness, or preparation for national emergencies. It’s potentially unsettling to foreign allies too; the US hasn’t had a permanent defense secretary or UN ambassador since January — two positions that have serious influence on foreign policy and national security.

Trump’s use of actings really is unusual. What can be done about it?

The turnover in the Trump administration looks a lot more like something that usually happens at the beginning and end of presidential terms — not in the middle. Obama, for example, had a lot of vacancies in 2013 during the first year of his second term.

“At this point in his administration, his use of actings is unprecedented,” O’Connell said. She noted Trump had four acting Cabinet secretaries in just his second year in office. (Five, if you count Rod Rosenstein, who was actually acting attorney general for a day, before Whitaker stepped in.) Trump has had 15 Cabinet departures by April of his third year in office, compared to nine for Obama after his first four years, and just four for George W. Bush, according to the Brookings Institution.

Not all of the vacancies are Trump’s fault, of course. The confirmation process takes time, and sometimes, officials really do just resign and aren’t fired on Twitter.

And Congress — specifically Republicans — could put more pressure on the president. Lawmakers do still have general oversight powers it can use to challenge the president on his game of administrative musical chairs if it really wanted to. But so far, especially when it comes to the Senate, it hasn’t chosen to do so.

There have been some grumbles from Republicans after the leadership purge at the Homeland Security Department. Sen. Ron Johnson (R-WI), who chairs the Homeland Security and Governmental Affairs Committee, told the Wall Street Journal that “more and more people” performing duties in acting capacity was “just not good” and noted that this makes them less accountable to Congress.

And although it might do little to tamp down Cabinet shake-ups in the immediate term, Congress could also consider making some reforms — such as minor tweaks to the FVRA — or even (maybe counterintuitively) cutting down the number of appointees that require Senate confirmation, which would help speed up the process for more critical appointees.

But Congress is otherwise limited in what it can do to ween Trump off his love of acting officials, or the tamp down the turnover in the administration. “Chaos,” Light said, “is not impeachable offense.”

Source: vox.com

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