Trump Continues to Set Records for Agency Vacancies

The Trump administration's empty or “acting” labeled slots on agency organization charts continue to place him months behind his predecessors in staffing up political leadership, according to new numbers from organizations tracking presidential appointees.

Less than 40 percent of 633 key positions had a nominee as of Jan. 13, according to the tracker maintained by the nonprofit Partnership for Public Service and The Washington Post, which released new agency numbers on Tuesday. The Trump White House has named the full slate of nominees only for the Small Business Administration, the U.S. Trade Representative, and the Office of Management and Budget. Last week, leaders left positions at the National Transportation Safety Board; the Surface Transportation Safety Board; the U.S. Election Assistance Commission; and the Homeland Security Department's inspector general office, from which John Roth departed.

Because of delays in Senate confirmations, however, USTR’s leadership slots are only 25 percent filled (lowest of all). This is followed by high vacancy rates at the Education, Justice and Agriculture departments.

The agencies with the fullest complement of leaders are the Veterans Affairs Department (73 percent), the CIA (67 percent), the Defense Department (62 percent), and the Housing and Urban Development Department (also 62 percent).

The slow pace of both nominations and confirmations could hamper the administration’s “tremendous opportunity” to improve government efficiency through the all-agency reorganization efforts it embarked upon, said Max Stier, president and CEO of the Partnership. “The high number of leadership vacancies will have negative implications for the administration’s ability to govern effectively and implement management reforms.”

The Partnership lauded Trump’s nomination of “high quality talent” such as Jeff Pon to be director of the Office of Personnel Management, and Margaret Weichert to be deputy director for management of the Office of Management and Budget. But no names have been offered for permanent appointments for Internal Revenue commissioner, Census Bureau director, ambassador to the Republic of Korea, assistant secretary for nuclear energy at the Energy Department and director of the National Counterterrorism Center, Stier noted.

The departments of Commerce, Education and Labor also lack a deputy secretary.

Other reporting has noted that Trump has yet to fill key diplomatic posts such as ambassadors to Germany and the European Union. Trump has begun to address the vacancies related to the tension with North and South Korea by naming, in December, Susan Thornton, a career senior Foreign Service officer in the class of minister-counselor, to be an assistant secretary of State for East Asian and Pacific Affairs.

Overall, Trump has nominated 559 people, of whom 301 have been confirmed and 78 “failed,” the confirmations taking an average of 72 days, the tracker reported. By this time in their first terms, Barack Obama had nominated 690, George W. Bush 741, Bill Clinton 633 and George H. W. Bush 478—all with far fewer average days required for Senate confirmation. The White House has often blamed Democrats in the Senate for the delays, but President Trump has also said on several occasions that he is purposefully not filling some of these high-level jobs.

Trump also appears tardy in his appointments under a separate tally by the academic-run White House Transition Project, which tracks 980 appointed positions and 213 critical leadership positions requiring Senate confirmation. “President Trump’s performance continues to trail previous administrations by exactly three months,” the transition project analysis said. “Despite special Senate efforts to confirm large numbers of nominees, President Trump has the fewest nominations and fewest confirmations in 40 years.”

In the national security area, Trump had nominated 40 officials, compared with 58 by President Obama, as of Jan. 4. In the management area, Trump had nominated 53, compared with 78 by Obama. And in the economic policy area, Trump had nominated 21, compared with 29 by Obama.

One reason for the slow pace, news reports have suggested, is that the Trump White House itself has a high turnover rate, and the ongoing probe of alleged Russian interference in the 2016 election may have rendered some candidates reluctant to accept job offers.

The vacancies have put the Trump team at risk of violating the 1998 Federal Vacancies Reform Act, which gives a new administration some 300 days to nominate individuals for key slots. Violations could come in the form of nominees who show up and begin performing work without Senate confirmation.

Presidents for decades have sought ways around the law, according to Morton Rosenberg, a retired senior legal analyst at the Congressional Research Service. “The experiences with this issue for over four decades have taught me that the Justice Department and its Office of Legal Counsel will consistently concoct patently implausible legal theories to assist presidents in avoiding the Senate's constitutionally-based exclusive confirmation process without shame or embarrassment,” he told Government Executive. 

Rosenberg pointed to two recent Supreme Court decisions (NLRB v. Noel Canning and NLRB v. SW General) repudiating Office of Legal Counsel arguments. In the SW General case, Rosenberg noted, the Justice office had argued—illogically, in his view—that that the Federal Vacancies Reform Act “allows the presidents to ‘park’ temporary designees under the act in vacant positions and at the same time nominate them to the position. That ruling made it clear that the FVRA was to be strictly construed to prohibit such presidential flexibility."

This story has been updated to reflect a larger number of positions being tracked and recent departures.