How Biden Can Use Special Authorities to Deploy His Team on Day One

Update: After publication of this story, the Office of Personnel Management released a memorandum formally authorizing the hiring authorities discussed in this story. 

President-elect Joe Biden will likely be able to install his appointees throughout government immediately upon taking the oath of office next week, though the outgoing Trump administration has yet to give the incoming president the authority to quickly make those placements. 

The delay from the Trump administration could hamper Biden’s ability to quickly take the reins at federal agencies and place his own personnel at them in temporary capacities. The situation will be particularly urgent with ongoing threats of violence following the insurrection at the U.S. Capitol last week, the ongoing COVID-19 pandemic and vaccine distribution, and the shaky economy. 

The outgoing Obama administration granted Trump Temporary Transition Schedule C Authority, as well as the ability to place appointees awaiting confirmation into temporary Senior Executive Service positions at their future agencies, on Jan. 9, 2017. While the Trump administration has not yet issued such a memorandum, it has issued several key transition documents in recent days. The authority could still be forthcoming before Jan. 20, however, and a source familiar with the situation said they expect the Biden team to have the authority in writing prior to the inauguration. Biden is expected to have the capacity to deploy at least some of his team members immediately. Trump made widespread use of the authority, sending 536 officials in temporary capacities to federal agencies after his inauguration. 

Dubbed “beachhead” members, the officials reported to the secretary-designees. The Trump administration boasted at the time that the number of individuals it launched to agencies on its first day was unprecedented. They were able to stay at their agencies for up to two 120-day terms under the temporary transition authority that OPM had granted, which allowed for each agency to bring on up to 50% of their normal number of permanent Schedule C staffers. In some cases, the Schedule C beachheaders stayed on at their agencies after the expiration of their terms. 

Appointees awaiting confirmation served as advisers during this time. 

“They can’t make decisions, but they can advise the senior staff, both political and career,” Ed DeSeve, a veteran of multiple presidential transitions and former co-chair of the National Academy of Public Administration's Transition 2016 program, previously told Government Executive. Usually the agency’s general counsel, or the White House general counsel, will give incoming political appointees awaiting confirmation a briefing, explaining precisely what they can and cannot do during that period.

OPM said in 2017 a Trump appointee awaiting confirmation could, for example, serve as a “senior adviser to the secretary” who could weigh in on matters “pertaining to policies, priorities and program direction of the department and to its structure, organization and operation.” The adviser could work on special assignments, the impact of proposed policies and coordinate with department officials and other stakeholders. Trump was able to place up to five appointees-designate at each agency as senior executives, though they could not serve in the exact position to which they were appointed. They could stay for 21 days, at which point OPM would have had to authorize a longer appointment.  

The Partnership for Public Service, which runs the Presidential Transition Center and advises incoming and outgoing administrations on the transition process, highlighted the temporary authority from OPM as a key method through which a new administration can start governing. 

The Day One officials “serve as temporary appointees until Senate-confirmed officials are in place, and help lay the groundwork for the new administration’s priorities,” the group wrote in its 2020 transition guide. 

Max Stier, president of the Partnership, said Biden should be able to move forward with the temporary Schedule C appointments even without an authorizing memorandum from OPM, as they are codified in federal law. He added Biden’s OPM could issue the memo after he takes office for his administration to authorize the temporary SES appointments, while noting there is still time for Trump to do so. Biden has made clear time is of the essence given the number of pressing issues before him, however, and Politico reported Tuesday his team is pressuring Republicans to ensure at least his national security team is confirmed immediately after his swearing in. The soon-to-be Senate Majority Leader Chuck Schumer, D-N.Y., said in a letter to colleagues on Tuesday that last week's insurrection demonstrated "we need qualified Senate-confirmed people (not in an acting capacity) in key national security positions on Day One" and other nominees "ASAP."  

Former Utah Gov. Mike Leavitt, for whom a 2016 transition law is named after his work coordinating Mitt Romney’s transition effort, said the acting career officials will ensure continuity with “capable, knowledgeable people” regardless of how Biden is able to disseminate his staff. 

“It’s not like no one is watching the hen house,” Levitt said. He added, however, that Biden will have a plan to stop Trump era regulations still in the pipeline, take action on high-priority items he wants to accomplish right away and build relationships with career executives that will require the immediate presence and oversight of appointees. 

Both Bush and Obama used Day One beachhead teams, but to a lesser extent and for more specific roles than Trump. Bush said at the time his temporary appointees would block any rules or statements that aligned with Clinton administration priorities. 

Between presidential appointments, longer-term Schedule C employees and several hundred non-career SES workers, Biden’s team must fill more than 4,000 positions. About 1,250 of those will require Senate confirmation; Biden has so far nominated 32. The president-elect will have to identify career officials to head agencies as they await for confirmed leaders, and designate any Trump appointees he wants to remain. The State Department, for example, said on Tuesday it is working with Biden’s team to identify the career employees who will serve in acting capacities come Jan. 20. Trump belatedly asked for the resignation letters of all of his appointees and froze SES hiring last week. 

The Trump-Biden transition has faced severe roadblocks as the current president has refused to concede the election and only recently admitted he would not serve another term. This prevented the General Services Administration from kicking the transition into full gear, and even since it did, Biden transition officials have said the Trump administration was preventing meetings and blocking the necessary flow of information.