The Trump Administration was characterized by chronic vacancies throughout high-ranking executive branch offices. Many of these positions were apparently left vacant intentionally so that President Trump could install “acting” officials, which he preferred since they provided him “more flexibility.” However, the preponderance of acting officers throughout the federal government presented considerable obstacles for Congress to conduct effective oversight. Not only do acting officials diminish agency accountability to Congress by allowing the President to bypass the Senate and fill vacancies with individuals who are potentially unqualified, it politicizes agencies by granting the President complete discretion to install individuals who will loyally adhere to his preferred policies.
The Federal Vacancies Reform Act (FVRA) allows the President to temporarily replace an officer who “dies, resigns, or is otherwise unable to perform the functions and duties of the office” with an acting official. While most agree that the ability to fill vacant offices temporarily with acting officials helps ensure—among other benefits—the continuation of agency action and expertise, the Trump Administration repeatedly exploited loopholes in the FVRA that have contravened the original intent of the law. Although the FVRA generally imposes a 210-day limit on acting officers, the Trump Administration seized upon a loophole in the FVRA that resets this service clock upon the pendency of up to two nominations by nominating individuals it knew the Senate would not confirm, which in turn would extend the service clock of its acting officials. The Administration also frequently ignored the 210-day limit altogether, perhaps recognizing that the FVRA’s only enforcement mechanism requires individuals to file lawsuits and establish standing against the relevant agency.
In addition to defying the time restraint, the Administration used the FVRA to install unqualified individuals into high-ranking offices. The FVRA allows the President to replace a vacant office either with another Senate-confirmed officer or any individual in the relevant agency so long as they are a GS-15 ranked officer and have served in that agency for at least 90 days. President Trump utilized this provision when he named Ambassador to Germany Rick Grennell as acting Director of National Intelligence (DNI). Grennell possessed no prior experience in the intelligence community, leading many to perceive his ascension to the position as Trump’s attempt to install a loyalist at DNI during his impeachment inquiry. Additionally, the Trump Administration used this provision to appoint individuals to inferior offices that do not require the Senate’s consent and then elevated them into principal officer positions after 90 days and upon the removal of the Senate-confirmed official. Finally, the Administration often simply left high-ranking positions vacant for long stretches of time, delegating that office’s tasks to inferior officers. These workarounds of the FVRA ultimately make it difficult for Congress to know who to hold accountable for an agency’s actions, thus limiting its oversight capacity.
In an attempt to combat continued abuse of the FVRA by the Trump Administration and the subversion of Congress’ oversight power, Congresswoman Katie Porter (D-CA) introduced the Accountability for Acting Officials Act during the 116th Congress. The legislation would have closed many of the loopholes in the FVRA that the Trump Administration exploited. First, it would reduce the time an acting official can serve to a maximum of 120 days. Second, it would increase to one year the length of time an acting official must serve in the agency prior to being installed and require that official to possess the qualifications set forth by the agency “in law, rule, or regulation.” Finally, it would require acting officials to testify before Congress at least once every 60 days during their tenure. Overall, the bill sought to ensure agency leaders are qualified and accountable to Congress and that the President is constrained in filling top government positions with staunch loyalists who adhere to his or her wishes. Although Congresswoman Porter’s bill neither addresses the delegation of tasks to inferior officers nor improves Congress’ ability to enforce the FVRA beyond mildly improving agency disclosure requirements, it was still a step in the right direction. Abuse of the FVRA was prevalent long before President Trump took office and it may continue to be prevalent in a Biden Administration. Indeed, with many expecting Republicans to in the Senate to block President Biden’s nominees, the threat of future workarounds and abuse of the FVRA seem as prevalent as ever. If Congress hopes to retain its oversight role and counteract the President’s unilateral and substantive control of the executive branch, it should seriously consider Congresswoman Porter’s proposed legislation.