February 5, 2019
More than two years into President Donald Trump’s administration, Congress is becoming increasingly troubled about his lightweight leadership team—and lack of vetted, permanent power players.
There is office space available nearly everywhere inside the Beltway, and nobody is filling it: The president has an acting chief of staff, attorney general, defense secretary, interior secretary, Office of Management and Budget director and Environmental Protection Agency chief, The Washington Post reported on February 3.
Indeed, the news outlet says, in order to deal with the number of vacancies in the upper ranks of departments, agencies have been relying on novel and legally questionable personnel moves that could leave the administration’s policies open to court challenges.
The lack of permanent leaders even has started to alarm top Republicans,who are pressing for key posts to be filled.
“It’s a lot; it’s way too many,” Senator James Lankford (R-Oklahoma) said to the news outlet about the acting positions in Cabinet agencies. “You want to have confirmed individuals there because they have a lot more authority to be able to make decisions and implement policy when you have a confirmed person in that spot.”
By any standard, the Post reports, Trump’s administration lags behind its predecessors when it comes to filling top posts throughout the government — even though the president’s party has controlled the Senate for his entire time in office.
The Partnership for Public Service, which has tracked nominations as far back as 30 years, estimates that only 54% of Trump’s civilian executive branch nominations have been confirmed, compared to 77% under President Barack Obama.
“The Trump administration is slower to fill jobs and has higher turnover than any administration we have records for,” said the group’s CEO, Max Stier.
Specifically according to an analysis conducted jointly by the Partnership for Public Service and The Washington Post, and posted on February 4, the White House has not bothered to nominate people for 150 out of 705 key Senate-confirmed positions.
Three departments are facing a particularly high number of vacancies: Only 41% of the Interior and Justice departments’ Senate-confirmed posts are filled, and just 43% of these positions have been filled at the Labor Department.
“If you think about our government as a manager of critical risk, we’ve upped our risk,” Stier said.
One particular vacancy senators have fixated on is at the Pentagon, where former Defense Secretary Jim Mattis resigned in December after clashing with Trump over his decision to begin withdrawing U.S. troops from Syria. Patrick Shanahan has been serving in an acting capacity since January 1.
Some Senate Republicans have lobbied on behalf of potential Mattis successors. In a private phone call shortly after Mattis announced his impending departure, Sen. Joni Ernst (R-Iowa) urged Trump to nominate Heather Wilson, the current Air Force secretary who would be the first woman to head the Pentagon.
“We absolutely need to have a permanent nominee,” Senator Joni Ernst (R-Iowa), a veteran who sits on the Senate Armed Services Committee, told the Post. “I do have great confidence in Patrick Shanahan, I know he is the acting secretary right now. But I do feel that in order to reassure allies and also to push back on our adversaries, it’s very important that we have a permanent secretary of defense.”
Trump does not share the urgency of some in his party to name permanent Cabinet secretaries, largely because he sees leaving people as interim to his benefit. The president has told others it makes the secretaries more “responsive,” an administration official said.
But how long can officials who have not been nominated, or approved by the Senate, continue to serve?
A Congressional Research Service report published in July concluded that “an action taken by any person who” is not complying with the Vacancies Act “in the performance of any function or duty of a vacant office . . . shall have no force or effect.” While this position has not been tested in court, several legal experts said that it at least raises a question about the durability of policies undertaken by officials who lack Senate approval.
Nina Mendelson, a professor of law at the University of Michigan, told the Post that the strategy Interior officials and others have taken of delegating many responsibilities to unconfirmed officials was “legally problematic” because it conflicts with the intent and language in the Vacancies Act.
“Congress specifically sought to limit this sort of strategy,” Mendelson said. As a result, she said, “Legally binding actions taken by these officials would be subject to challenge.”
Senate Energy and Natural Resources Committee Chairman Lisa Murkowski (R-Alaska) said she is concerned with the lack of a confirmed interior secretary, as well as vacancies atop the Bureau of Land Management and National Park Service.
“When you think about it, what was the big initiative at the end of last year? Let’s do something with park maintenance,” Murkowski said. “Would sure be great to have the head of the parks in order to execute this initiative. Yup. It worries me.”
For the moment, Trump’s deputies continue to come up with inventive ways to fill openings. On Monday, Agriculture Secretary Sonny Perdue named three presidential nominees to senior leadership posts in his department, saying that the last Congress failed to act on their appointments and he wanted them to start working while they awaited action from the new Congress.
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