President Biden has yet to fill the three Senate-confirmed positions at the federal division responsible for a slew of his social-services policies, including expanding child care, establishing universal preschool and housing migrant children at the border, ahead of a congressional deadline that takes effect Tuesday.
Biden also has not nominated a commissioner to lead the division’s Administration for Native Americans nor a commissioner to run its children, youth and families bureau.
Although the three positions are currently being filled by acting officials, those individuals can only serve in those roles through Tuesday under the Federal Vacancies Reform Act — unless Biden nominates permanent replacements. Otherwise, their responsibilities would technically fall to Health and Human Services Secretary Xavier Becerra, who already has an extensive portfolio, said Max Stier, chief executive of the Partnership for Public Service. (The organization also has partnered with The Washington Post to track Biden’s nominations.)
“The secretary, therefore, is supposed to be required to actually do that work,” Stier said, acknowledging that the White House could find loopholes, like establishing new roles that shift the responsibilities away from Becerra. “But it creates problems, and it creates uncertainty,” Stier added, noting that prior workarounds of the Vacancies Reform Act have led to legal challenges and confusion within agencies, and calls for reforms to the rules.
According to HHS spokesperson Sarah Lovenheim, the department has drawn up a plan in case Biden does not nominate officials ahead of the looming deadline.
“The process has been set up so that by midnight tonight, everyone in an acting appointee role at ACF today would continue assuming the full range of responsibilities associated with their respective role,” Lovenheim said on Monday afternoon. For instance, JooYeun Chang, a senior official who has been serving as the acting assistant secretary, could continue carrying out those responsibilities under a new title.
In a statement, the White House faulted Senate Republicans for slow-walking confirmations and said it was prepared for the ramifications of the Vacancies Reform Act.
“We started this administration with more appointees in acting positions than any administration in history — this was intentional because we knew confirmations would take a while and we needed to have values aligned and highly competent senior leadership in place,” a spokesperson said in a statement. “Each agency has gone position by position to ensure that wherever we do not have a Senate confirmed leader, we have appropriately designated senior leaders who are prepared to perform the duties of the position until we nominate and confirm a senior official.”
Advocates and former officials say they are worried about Biden’s failure to nominate permanent officials to help steer ACF, which has attracted national scrutiny and congressional probes during multiple administrations. Democrats have investigated the division for its failures to reunite migrant families separated during the Trump administration; Republicans have criticized mounting spending to cover the cost of caring for unaccompanied migrant children and attacked Biden’s handling of border policy. The politically charged environment around the division also has made it harder to recruit potential leaders, administration officials acknowledged.
ACF — which has an annual budget that is more than the combined spending on the Centers for Disease Control and Prevention, the Food and Drug Administration and the National Institutes for Health — would also receive tens of billions of additional dollars under Biden’s $2 trillion social spending package. That legislation, which Democrats are seeking to finalize this month, includes new funding for child care and the creation of a new universal prekindergarten program. Both initiatives would be managed by ACF.
Vicki Turetsky, a member of the ACF leadership team during the Obama administration, said that the acting ACF officials were “very stretched thin” in trying to fulfill their acting duties as well as carry out the full-time roles they were separately hired to perform. She added that acting officials were limited in their ability to set a “policy direction” for the division, as staff wait for Senate-confirmed nominees.
“I’m concerned — alarmed, really — that time is moving quickly,” warned Turetsky. “It will be difficult for the administration to get the full benefit … the longer the positions are left open.”
Biden on Friday nominated Robert Califf to lead the FDA, which would fill the highest-profile vacancy at the federal health department. But he has yet to nominate officials to fill these three positions at ACF as well as two other key health department positions — the assistant secretary for aging and the director of the Indian Health Service.
Several other leadership positions at ACF, including the directors of the office of family assistance and the office of child support enforcement, are also being filled by acting officials, although those roles do not require Senate confirmation. Biden in March appointed Cindy Huang, a longtime refugee advocate and Obama alumna, to run the department’s refugee office.
In interviews, Turetsky and four other current and former ACF officials who spoke on the condition of anonymity to discuss personnel matters said they weren’t sure why Biden had delayed in filling the roles at the division.
“I’ve asked the same question myself,” said Turetsky, citing the pandemic and the “disruption” left behind by the Trump administration as potential factors. “I do think that this administration has inherited a very, very challenging environment.”