'It's Way Too Many': As Vacancies Pile Up in Trump Administration, Senators Grow Concerned

By Juliet Eilperin, Josh Dawsey and Seung Min Kim, The Washington Post

04 February 19

 

rom the Justice Department to Veterans Affairs, vast swaths of the government have top positions filled by officials serving in an acting capacity — or no one at all. More than two years into Trump’s term, the president has an acting chief of staff, attorney general, defense secretary, interior secretary, Office of Management and Budget director and Environmental Protection Agency chief.

To deal with the number of vacancies in the upper ranks of departments, agencies have been relying on novel and legally questionable personnel moves that could leave the administration’s policies open to court challenges.

The lack of permanent leaders has started to alarm top congressional Republicans who are pressing for key posts to be filled.

“It’s a lot, it’s way too many,” Sen. James Lankford (R-Okla.) said of the acting positions in Cabinet agencies. “You want to have confirmed individuals there because they have a lot more authority to be able to make decisions and implement policy when you have a confirmed person in that spot.”

By any standard, Trump’s administration lags behind its predecessors when it comes to filling top posts throughout the government — even though the president’s party has controlled the Senate for his entire time in office. The Partnership for Public Service, which has tracked nominations as far back as 30 years, estimates that only 54 percent of Trump’s civilian executive branch nominations have been confirmed, compared to 77 percent under President Barack Obama.

“The Trump administration is slower to fill jobs and has higher turnover than any administration we have records for,” said the group’s president and chief executive, Max Stier.

Republicans have largely blamed Senate Democrats for slowing down the consideration of executive branch nominees.

But according to an analysis by the Partnership for Public Service and The Washington Post, the White House has not bothered to nominate people for 150 out of 705 key Senate-confirmed positions.

Three departments are facing a particularly high number of vacancies: Only 41 percent of the Interior and Justice Department’s Senate-confirmed posts are filled, and just 43 percent of these positions have been filled at the Labor Department.

The third-highest ranking position at Justice — which, like Interior, has been operating without a permanent secretary for weeks — has been vacant for nearly a year, with no nominee in sight.

“If you think about our government as a manager of critical risk, we’ve upped our risk,” Stier said.

One particular vacancy senators have fixated on is at the Pentagon, where former defense secretary Jim Mattis resigned in December after clashing with Trump over his decision to begin withdrawing U.S. troops from Syria. Patrick Shanahan has been serving in an acting capacity since Jan. 1.

Some Senate Republicans have lobbied on behalf of potential Mattis successors. In a private phone call shortly after Mattis announced his impending departure, Sen. Joni Ernst (R-Iowa) urged Trump to nominate Heather Wilson, the current Air Force secretary who would be the first woman to head the Pentagon.

“We absolutely need to have a permanent nominee,” said Ernst, a veteran who sits on the Senate Armed Services Committee. “I do have great confidence in Patrick Shanahan, I know he is the acting secretary right now. But I do feel that in order to reassure allies and also to push back on our adversaries, it’s very important that we have a permanent secretary of defense.”

Trump does not share the urgency of some in his party to name permanent Cabinet secretaries, largely because he sees leaving people as interim to his benefit. The president has told others it makes the secretaries more “responsive,” an administration official said.

“I like acting because I can move so quickly,” Trump said in an interview with CBS News that aired Sunday. “It gives me more flexibility.”

To deal with the lack of Senate-confirmed officials in key posts, several agencies have employed unusual legal gambits.

Last week, acting interior secretary David Bernhardt amended an order his predecessor, Ryan Zinke, signed in November to keep eight handpicked deputies in place without Senate approval. Under the revised order, these appointees can serve in their posts for another four months, unless they are replaced or the department decides to extend the deadline once again.

At both the departments of Interior and Veterans Affairs, officials have assigned deputies to perform the critical functions of Senate-confirmed officers but have stopped short of calling them “acting” to avoid the legal requirements of the Federal Vacancies Reform Act. That 1998 law stipulates that individuals cannot occupy Senate-confirmed posts in an acting capacity for longer than 300 days during a president’s first year, and more than 210 days in subsequent years.

After VA’s acting deputy secretary Jim Byrne hit his 210-day mark this past month, Secretary Robert Wilkie gave him a new job as of Jan. 14 — he designated Byrne as “general counsel, performing the duties of the deputy secretary of Veterans Affairs,” according to department spokesman Curt Cashour.

Left unclear is whether these types of personnel moves could cause legal headaches for the administration if critics seize on them as part of an effort to roll back or strike down policies they oppose.

A Congressional Research Service report published in July concluded that “an action taken by any person who” is not complying with the Vacancies Act “in the performance of any function or duty of a vacant office . . . shall have no force or effect.” While this position has not been tested in court, several legal experts said that it at least raises a question about the durability of policies undertaken by officials who lack Senate approval.

Nina Mendelson, a professor of law at the University of Michigan, said the strategy Interior officials and others have taken of delegating many responsibilities to unconfirmed officials was “legally problematic” because it conflicts with the intent and language in the Vacancies Act.

“Congress specifically sought to limit this sort of strategy,” Mendelson said. As a result, she said, “Legally binding actions taken by these officials would be subject to challenge.”

Trump officials reject the idea that their personnel practices contradict existing law.

For instance, Interior’s top lawyer, Daniel Jorjani, began serving as principal deputy solicitor on May 26, 2017, which meant that normally he would be slated to step down on Dec. 6, 2018. But in an email, Interior spokeswoman Faith Vander Voort said the department was complying with the Vacancies Act because he was delegated nearly all the duties of Interior’s top lawyer “without assuming the vacant office.”

“It is legally possible for the functions of a vacant office to be carried out indefinitely by another individual pursuant to a delegation by the agency head,” she said.

Kate Kelly, public lands director for the liberal advocacy group Center for American Progress, said in an interview that Interior officials were disregarding the Senate’s right to weigh in on political appointments.

Kelly noted that Jorjani has signed several critical legal opinions since taking over the division, including one that revived a mining claim near Minnesota’s Boundary Waters Canoe Area Wilderness and one that relaxed the penalties energy companies could face for killing birds under the Migratory Bird Treaty Act. The eight legal opinions Jorjani wrote during the first year-and-a-half of the Trump administration exceed the combined total that were issued under the three previous administrations, Kelly said.

“They are not just keeping the seat warm while waiting for the real McCoy to show up, and yet they’re able to operate without the level of scrutiny that’s usually associated with these positions,” she said.

At times, the Trump administration has felt like a game of musical chairs. Mick Mulvaney has taken a break from his job heading the White House budget office to serve as acting chief of staff, while the deputy OMB director is also serving as the acting head of the Office of Personnel Management. And in late December the vice chairman of the Merit Systems Protection Board — which acts as a personnel court for federal employees accused of misconduct or facing other employment actions — began concurrently serving as OPM’s acting general counsel.

Barry Bennett, a former Trump campaign adviser who now works as a lobbyist, said that Trump and some of his top aides remain skeptical of the idea that they need to bring on all the appointees they re authorized to hire.

“Life would be easier for them if they had more allies in the bureaucracy,” he said.

Key Senate Republicans are hoping the administration will agree and put nominees forward for top administration jobs.

Senate Energy and Natural Resources Committee Chairman Lisa Murkowski (R-Alaska) said she is concerned with the lack of a confirmed interior secretary as well as vacancies atop the Bureau of Land Management and National Park Service.

“When you think about it, what was the big initiative at the end of last year? Let’s do something with park maintenance,” Murkowski said. “Would sure be great to have the head of the parks in order to execute this initiative. Yup. It worries me.”

For the moment, Trump’s deputies continue to come up with inventive ways to fill openings. On Monday, Agriculture Secretary Sonny Perdue named three presidential nominees to senior leadership posts in his department, saying that the last Congress failed to act on their appointments and he wanted them to start working while they awaited action from the new Congress.

“At USDA, we’ve been engaged in fulfilling our mission without all of our players on the field, so we want to get these strong, qualified leaders in the game,” Perdue said.