Beware the Agency Leadership Void

Whatever else transpires, many government workers will remember 2017 as the year of the empty office. Almost six months along, the Trump administration’s appointments strategy is a slow moving disaster. The administration has not even nominated candidates to fill three-quarters of top Senate-confirmed agency appointee positions, according to the the Political Appointee Tracker developed by the Partnership for Public Service and the Washington Post.

Across federal agencies, anecdotes abound of quiet hallways and pervasive uncertainty. A palpable emptiness fills the southwest corner of the Main Treasury Building’s third floor, where empty offices of the department’s 27 vacant appointee positions await occupants. Secretary Steven Mnuchin remains the only confirmed Treasury Department appointee. Cabinet secretaries are the only confirmed appointees in the departments of Agriculture (12 vacant positions), Commerce (20), Education (14), Energy (21), Housing and Urban Development (11), Interior (16), Labor (13), and Veterans Affairs (10). Even agencies critical to the Trump administration’s security agenda are coping with a gaping leadership void. At the Defense Department, 47 of 53 positions are vacant. At Homeland Security, 10 out of 13 appointee positions remain vacant.

Is Senate obstruction to blame? By all accounts, a spirit of obstructionism permeates the Democratic caucus. As a national party, Democrats are coping with the party’s weakest position in 50 years. For Senate Democrats, delaying a nomination is one way Senators can take action. Every day a nomination is delayed, the likelihood that nominee will be confirmed falls. We are so familiar with the ethical tropes that devour presidential nominees that it was disconcerting to see the new administration minimize the vetting process, which resulted in Trump handing Senate obstructionists easy targets like Andrew Puzder, Vince Viola, and Todd Ricketts. The Office of Presidential Personnel is by most accounts inexperienced and overwhelmed. But a bigger bottleneck seems to rest in the White House, where news reports describe ritual score settling among warring camps little concerned with the details of running a government. Little surprise the administration is having trouble finding enough qualified administrators willing to put up with the sideshow. Presidents have always struggled to recruit competent and loyal agency appointees, but 2017 is different.

Consider the Chief Financial Officers Council, an enterprise widely hailed by good government advocates for bringing together appointed agency CFOs. This year, 26 out of 27 council members will be represented by acting officials. More ominously, the administration has yet to put forward nominees to fill those 26 vacant CFO Council member positions.

Are they even trying? Some evidence says no. Perhaps some appointee positions are being left strategically vacant. Maybe an administration dedicated to “deconstructing” the administrative state shouldn’t waste time on appointments. Such reasoning seems unwise. The policy changes Trump promises amount to cheap talk without people making them happen. What happens in a void of bureaucratic leadership? Not change, in my experience.

The Fallacy of Acting Officials

Of course “vacant” positions—those not occupied by a Senate-confirmed appointee—are not usually vacant at all, but are filled by career officials serving in an “acting” capacity. Acting officials are typically senior agency civil servants, who may in fact be more competent and reliable than administration appointees. So are vacant appointee positions really such a problem?

Congressional Republicans certainly thought vacant appointee positions were a problem when they passed the first Vacancy Act in 1868, and again when Congress passed the Federal Vacancies Reform Act of 1998. (Also, coincidently the years Congress voted to impeach presidents.) On both occasions, and many occasions in between, Congress created rules designed to prevent acting officials from serving indefinitely without the Senate’s advice and consent. The Vacancy Act stipulates who may fill acting positions and limits the length of time acting officials may serve. While systematic data tracking acting officials are not available, one can make a reasonable prediction that beginning this fall, many acting officials appointed by Trump will serve in violation of the Vacancy Act.

What happens when an acting official is found to have served in violation of the Vacancy Act? In 2016, OPM Inspector General Patrick McFarland found “acting” OPM Director Beth Cobert was not legitimately appointed under the Vacancy Act and, based in part on a reading of the 2014 Supreme Court case National Labor Relations Board v. Noel Canning, McFarland found all decisions made by OPM under Cobert’s service may be vacated in court. The letter left OPM staff scrambling. As acting director, Cobert acted like a director. In a December 2015 post to the Director’s Blog, for example, Cobert describes how as OPM Director she decides when to close government agencies due to inclement weather. That said, who will sue OPM over a snow day?

Consider another example. Federal acquisition regulations reserve certain decisions for the head of a contracting agency. If the courts agreed with the IG's interpretation that Cobert served in violation of the Vacancy Act, all the decisions with her signature could be vacated. Some decisions could be delegated to Cobert's subordinates, but what if the courts voided the delegation as well? In March of this year, the Supreme Court’s decision in National Labor Relations Board v. SW General made such a disastrous scenario seem even less farfetched. DOJ has apparently reached out to agencies likely to encounter litigation based on violations of the Vacancy Act to determine what decisions must be made by an agency head—and what decisions can be delegated to avoid being caught up in litigation. The Justice Department interprets the sorts of decisions affected narrowly. Will the courts agree?

The Justice Department is at the center of a strategy (employed by recent presidents of both parties) that selectively ignores limits placed on acting officials by claiming temporary appointment powers in statutory authorities other than the Vacancy Act. Scholar Louis Fisher notes that when L. Patrick Gray served as acting director of the FBI for almost a year between J. Edgar Hoover’s death in May 1972 and February 1973, GAO’s Comptroller General Elmer Staats issued a letter stating Gray’s service beyond the statutory limit of 30 days was prohibited by law, but Justice responded that Gray had been appointed acting director under a different law.

Similarly, in 1998, then acting Assistant U.S. Attorney General for Civil Rights Bill Lann Lee testified before a House Oversight committee panel that he was appointed by President Bill Clinton not under the Vacancy Act but under other statutory authorities granted the attorney general. Rep. Charles Canady interrupted to complain that the department’s interpretation “not only nullifies the Vacancies Act, but nullifies the constitutional authority of the Senate to give advice and consent with respect to presidential nominees.” Sen. Robert Byrd, sponsor of the 1998 Vacancies Reform Act, explained that the legislative intent was to write rules governing acting officials, ‘‘so tight, so airtight, that no department can find a crack or crevice anywhere through which to creep.’’

Would the Vacancy Act hold up in the courts? I do not know. As an observer, I would be satisfied with answers to a few clerical questions. For example: What positions are vacant? Who are the acting officials filling these positions? How long have they served? Congress has mandated agency reporting of vacancies and acting officials to GAO and the Hill, but compliance is inconsistent and tracking data are unreliable. The Washington Post/Partnership for Public Service Political Appointee Tracker is an outstanding resource.

The Project on Government Oversight developed a website tracking inspectors general vacancies, which is also very useful, and IGs illustrate the scope of the problem. According to POGO, a quarter of statutory IG positions have been vacant for more than one year, including long vacant positions at the CIA, National Security Administration, the Defense and Energy departments, the Export-Import Bank, and the Office of Personnel Management. The Interior Department IG has been vacant more than eight years. Professor Evan Haglund of the Coast Guard Academy observes that compared to other appointee positions, IGs are difficult to recruit and yield little of political benefit to the administration. The president’s appointment power is stamped with a shelf life. Time and resources are limited, and vacant IG positions compete for attention with positions more central to the president’s agenda. In fact, Haglund shows that presidents are, on average, about six weeks slower nominating IGs when their party controls the Senate.

Little systematic information about appointee vacancies and acting officials is available, making the careful research of scholars like Haglund and Professor Anne O’Connell at the University California-Berkeley even more vital. One presumes OPM and the Office of Presidential Personnel possess this information. But even the Obama administration—despite its vaunted commitment to government transparency—developed a Web-based appointee tracker focused on nominees rather than positions. Vacancies that opened up after the administration’s first year were not tracked, nor was information about who was acting in lieu of Senate-confirmed appointees.

Appointee politics are cloudy because none of the actors with a stake in the process gains much from increased visibility. That is, until a real disaster happens. It’s worth remembering that a common theme across post-mortem accounts of disasters like Katrina and 9/11 point to a void of agency leadership.  

Matthew Dull is an associate professor at Virginia Tech's School of Public and International Affairs.