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 with 77 percent under President Barack Obama at the same point in his administration.
“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 Senate-confirmed positions.
Three departments are facing a particularly high number of vacancies: Only 41 percent of the Interior and Justice departments’ Senate-confirmed posts are filled, and just 43 percent of such positions have been filled at the Labor Department.
The third-highest-ranking position at the Justice Department — which, like the Interior Department, 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 that senators have fixated on is at the Pentagon, where 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 Air Force Secretary Heather Wilson, who would be the first woman to head the Pentagon.
“We absolutely need to have a permanent nominee,” said Ernst, a veteran 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 answered some concerns from senators Monday when he nominated David Bernhardt to be interior secretary, a role he had been filling on an acting basis since Ryan Zinke resigned in December.
But overall the president does not share the urgency of some in his party to name permanent Cabinet secretaries, largely because he sees keeping interim leaders as beneficial. The president has told others it makes the acting 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, Bernhardt amended an order that 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 an additional four months, unless they are replaced or the department decides to extend the deadline again.
At the Interior and Veterans Affairs departments, 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 or more than 210 days in subsequent years.
After VA’s acting deputy secretary, Jim Byrne, hit his 210-day mark last 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.” The report addresses the act broadly and not any specific steps taken by the administration. While the position outlined in the report 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 that Interior Department officials and others have taken of delegating many responsibilities to unconfirmed officials is “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, the Interior Department’s top lawyer, Daniel Jorjani, has been running the solicitor’s office even though Trump’s initial nominee for the post, Ryan Nelson, withdrew his name on May 10, 2018. Under normal circumstances, Jorjani would have stepped down in early December. But in an email, agency spokeswoman Faith Vander Voort said the department was complying with the Vacancies Act because Jorjani was delegated nearly all the duties of the Interior Department’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 — an Interior Department adviser in the Obama administration and now public-lands director for the Center for American Progress, a liberal advocacy group — said in an interview that department 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 under the Migratory Bird Treaty Act for killing birds. 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 Office of Management and Budget to serve as Trump’s acting chief of staff — this after he had simultaneously served as acting head of the Consumer Finance Protection Bureau. 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 the 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 are authorized to hire.
“Life would be easier for them if they had more allies in the bureaucracy,” he said.
There have been tensions at times between the White House and Senate Majority Leader Mitch McConnell (R-Ky.) over how hard to push for votes on nominees, particularly in the face of what the White House argues are Democratic attempts to slow the process.
White House aides pushed McConnell in 2017 and 2018 to confirm more executive appointees but were rebuffed by the majority leader, who said that confirming judges was more important and that there was limited time, according to a current and a former senior administration official. McConnell’s argument: Judges would be around for 30 years, and political appointees might be there for only a few years.
One of these officials said the White House argued to senators during their regular Tuesday lunches that they should cut the number of Senate-confirmed positions but that “it went nowhere.” Lankford, this person said, has led the effort to cut the amount of debate time on nominees before a vote can be held, to speed up the process.
The concern among Senate Republicans about the administration’s empty jobs is so palpable that it took up much of their time at a January retreat at Nationals Park, attendees said.
Senate Energy Committee Chairman Lisa Murkowski (R-Alaska) said last week that she was concerned about 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 Jan. 28, 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.
Lisa Rein contributed to this report.