This is not an isolated episode. My colleague Philip Bump finds that “more than a fifth of Trump’s presidency has seen departments run by acting heads. (Specifically, 21 percent of the days that one of the 15 consistent Cabinet positions could have had a director, there was an acting director in place.)” His reliance on non-confirmed department heads is unprecedented: “Trump’s agencies have spent much more time [than predecessors] being led by acting directors. He’s had 388 days on average in each of the years of his presidency in which a department was led by an acting director.” DHS now joins the Defense and Interior departments as Cabinet spots with acting secretaries. (The ambassador slot to the United Nations is also open; although it has been demoted to non-Cabinet level.)
Part of the issue is Trump’s exorbitantly high turnover rate. He is less than 2½ years into his presidency and has had three attorneys general, three national security advisers and three chiefs of staff. Bill Shine was the fifth director of communications to get booted.
Trump’s chaotic management style has also left an extraordinary number of vacant positions. In addition to the top spots he cleared out at DHS, the Labor, Justice and Interior departments have vacancies in 50 percent or more of their political slots. Another four departments have more than 40 percent of their political positions still open.
The problem with this tumult is two-fold.
First, as a constitutional matter. Trump is effectively diminishing the role of the Senate in its advice and consent role. Constitutional scholar Larry Tribe says he is worried about “a president who cares more about being able to bully his Cabinet members than about having Cabinet members with the Senate-backed clout to get anything done.” He adds, “It’s a symptom of Trump’s obsession with the appearance of power and his indifference to the policies that power can potentially implement.”
“The Senate grappled with this question in the very first Congress when it ordered George Washington to send nominations to the Hill at a reasonable pace,” said Paul Light, a professor of public service at New York University who has written extensively on the appointment process. “Senators rightly worried that presidents might use acting appointees to evade oversight and institutional prerogatives. Yet, we haven’t heard a word from the Senate on the Trump administration’s abuse of its acting authority.” . . . .To me, the real difference is avoiding Senate confirmation — either because the individuals he wants running these agencies can’t be confirmed even by a Republican-controlled Senate, or because he’s worried about the kinds of questions they’d have to answer and or concessions they’d have to make in order to be confirmed,” said Stephen Vladeck, a law professor at the University of Texas. “Either way, that’s an alarming argument for bypassing a Senate controlled by his own party.”
A group of legal scholars in an amicus brief in Maryland’s lawsuit challenging Matthew Whitaker’s appointment as acting attorney general, a group of constitutional scholars wrote:
As Alexander Hamilton wrote in Federalist No. 76, a President “who [has] himself the sole disposition of” such an office as Attorney General “would be governed much more by his private inclinations and interests, than when he [is] bound to submit the propriety of his choice to the discussion and determination of a different and independent body.” A President who can so dispose of advice and consent may be tempted to appoint “unfit characters” who have “no other merit than . . . being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.” Id. The Framers could not countenance such a risk in the appointment of principal officers. That is precisely why the Constitution has an Appointments Clause.
Ian Bassin, executive director of Protect Democracy (a nonpartisan group that litigates against the administration’s illegal and unconstitutional power grabs), remarks, “The Founders feared a president like Trump and sought to prevent exactly this -- a president seeking to fill the executive branch with loyalists accountable to no one but the monarch.”
Second, this is no way to run government — or any organization. With a slew of acting secretaries and sub-Cabinet positions, the normal business of government is slowed, underlings question whether the acting secretary’s orders will be countermanded and the bureaucracy grinds to a halt. Even Republican senators, including conservative allies of Trump, began speaking up a couple of months ago to voice their displeasure. (“The lack of permanent leaders has started to alarm top congressional Republicans who are pressing for key posts to be filled,” The Post reported in February.)
In testimony last year before the House Oversight and Government Reform Committee, Max Stier, president and chief executive of Partnership for Public Service, explained, “Vacancies in key presidential appointments, including Senate-confirmed positions, often leave agencies in a holding pattern where officials serving in an ‘acting’ capacity are not empowered to make key decisions and new agency heads are left without a politically appointed leadership team to work with career executives and employees.” This in turn slows hiring of lower-level staff and effective execution of the department or agencies mission.
Think of the substitute teacher syndrome: Are students going to behave as they would when their “real” teacher is there? Now think of a school with an impulsive principal who has a slew of substitute teachers and staff vacancies. You’d expect that school to be dysfunctional. So it is with this administration.
In sum, the president becomes more unhinged by the day, throwing out one harebrained scheme (close the border) only to reverse course (give Mexico a year!) and then reverse again (close the border!). He has no idea how government should operate and no capacity for attracting competent people — or listening to their advice.
The result is a constant churn in personnel and a government in disarray. He is still left with the same record of non-accomplishment he feared will impair his reelection prospects. If Democrats don’t run in part on competency and the promise of a return to normalcy, they’ll be missing a strong reason to send him and his three-ring circus on their way.