What the Senate Should Do About Acting Appointees

Matthew G. Whitaker’s appointment as acting attorney general may yet be successfully challenged as a violation of the Constitution’s appointments clause, but is more adroitly framed as a violation of the Senate’s intent in enacting the 1988 Presidential Transitions Effectiveness Act.

The transitions act is central to the Whitaker case because it rescued the 1868 Vacancies Act from near-certain repeal, and then led to further changes contained in the 1998 Federal Vacancies Reform Act, which in turn became the basis for the Justice Department’s defense of the president’s decision. Whitaker could not have been appointed under the FVRA unless then-Sen. John Glenn, D-Ohio, and the Senate Governmental Affairs Committee (now known as the Homeland Security and Governmental Affairs Committee), had acted in 1988 to save the Vacancies Act.

As an adviser to the Governmental Affairs panel in 1997-98, I can attest that Glenn viewed the Vacancies Act as essential to the Constitution’s requirement that the president “shall take care that the laws be faithfully executed.” Fully aware that the Vacancies Act was underused, abused, and misunderstood, Glenn nevertheless decided that the Senate’s confirmation prerogatives were better protected with the act than without it.

Congress enacted the first version of the Vacancies Act in 1792 and has revised it at least four times since the Civil War. As the U.S. Court of Appeals for the District of Columbia explained in 1997, the act does not tell presidents when they must fill a vacancy, who they must choose, or even whether an acting appointee must have at least subject-matter expertise. It only requires that an acting appointee be the first deputy already in place, a Senate-confirmed officer somewhere in government, or someone who has worked in the given agency for at least 90 days in the previous year at the highest General Schedule pay grade. Whitaker only passed the third test.

The act is quite clear, however, on the length of service—although the time frame has changed several times over the years. Congress set the original limit at six months, shortened it to 30 days immediately after Andrew Johnson survived impeachment in 1868, raised it to 120 days in 1988, and raised it again to 210 days in 1998. Under current law, the vacancy clock stops when the president makes a nomination to the post, but starts running again if the nomination is withdrawn or rejected. This means Whittaker could serve much longer than 210 days, depending on how long his designated replacement lingers in the sluggish Senate confirmation process.

Whatever happens in the coming weeks, the Homeland Security and Governmental Affairs Committee should make sure an acting appointee like Whitaker can never serve again. The panel should start by reminding the chamber that it is the Senate’s monitor of the presidential appointments process. Authorizing committees are responsible for individual appointments within their purview, but not the appointments process as a whole. The committee should then take quick action on legislation to restore the 120-day time limit set in 1998, require previous Senate confirmation for all secretary, deputy secretary, and undersecretary level acting appointments, and create a Senate fail-safe mechanism for removing acting appointees who threaten the “take care” clause.

Once through these quick fixes, the committee should open a deeper review of presidential appointments and transitions. The appointments process moves more slowly than ever, the bureaucratic hierarchy has never been taller or wider, transition and inaugural spending has never been greater, and even Trump has complained about a federal organization chart that has “people over people over people.” Trump has also provoked a recent surge in the number of both Democrats and Republicans who say the federal government needs very major reform. The Homeland Security Committee has the moderate bent, bipartisan history and leadership to take up the challenge.

I had many conversations with Glenn as the 1988 transition act took shape and am absolutely sure he would have questioned Whitaker’s qualifications for office and fought the end-around of the Senate confirmation process. Glenn knew acting appointments were inevitable, but also believed they should never be used to help a president undermine the laws or reward unqualified individuals.

Congress endorsed these beliefs when it passed the 1988 law, and President Ronald Reagan accepted the obligation to uphold them when he signed it. The question is whether the Senate will respond to the recent insult in time to prevent the next challenge to good government. It should act immediately.

Paul C. Light is a professor of public service at NYU’s Robert F. Wagner School of Public Service. He first met Sen. John Glenn in 1983 as an American Political Science Association Congressional Fellow. He returned to the Senate in 1987 as a special adviser on presidential transitions and drafted the legislative report that accompanied the Federal Vacancies Reform Act to the Senate floor and eventual passage.