The Replacements: Why and How "Acting" Officials are Making Senate Confirmation Obsolete

THE REPLACEMENTS a

SEPTEMBER 2020

WHY AND HOW “ACTING” OFFICIALS ARE MAKING SENATE CONFIRMATION OBSOLETE

THE REPLACEMENTS

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government by inspiring a new generation to serve and by transforming the way government works. The Partnership

teams up with federal agencies and other stakeholders to make our government more eective and ecient. We pursue

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government is eectively serving the public. Oversight is the means by which Congress, the media and outside stakeholders can

identify what is working in our government, surface problems, ﬁnd solutions and hold agencies and their leaders accountable. When

done well, oversight fulﬁlls an important and legitimate role in American democracy.

For more information, visit ourpublicservice.org/congressional-oversight

THE REPLACEMENTS 1

The report includes speciﬁc recommendations to

address the prevalence of temporary ocials, ﬁx broken

processes and improve accountability:

• The Senate must reassert its constitutional authority

to provide advice and consent on executive branch

nominations.

• Congress should require more transparency around

vacant positions subject to advice and consent.

• The Senate should reduce the number of presiden-

tial appointments subject to Senate conﬁrmation

and should revisit the “privileged nominations”

process.

• The executive and legislative branches should invest

the time, resources and processes necessary to

support the nomination and conﬁrmation of well-

qualiﬁed nominees.

The extensive use of acting ocials and the ease with

which a president can sidestep the conﬁrmation process

should serve as a wake-up call to senators of both parties.

For the government to be fully accountable to the people

it serves, the laws and processes that guide the use and

disclosure of temporary and acting ocials need to be

reconsidered.

The Constitution vests responsibility for ﬁlling federal

leadership positions in both the president and the Senate

— the president nominates ocials for key posts, and the

Senate provides “advice and consent.” But in recent years,

presidents have found it increasingly easy to sidestep this

process altogether and to install temporary, “acting” of-

ﬁcials in place of Senate-conﬁrmed leaders.

All presidents have used acting ocials on a tem-

porary basis to ﬁll some of the more than 1200 posi-

tions subject to Senate conﬁrmation, but the executive’s

use of acting ocials has increased in recent years. The

Trump administration has utilized more acting ocials

than other recent presidents and found numerous ways

around the Federal Vacancies Reform Act and other laws

intended to constrain the use of temporary appointees.

Ambiguities in the laws governing the use of acting o-

cials, processes based on norms rather than rules, lack of

transparency into personnel decisions and political pit-

falls risk making the Senate irrelevant in ﬁlling positions

across government.

This report examines the prevalence of vacancies

and temporary ocials in Senate-conﬁrmed positions,

the use of acting ocials and the reasons the nomination

and conﬁrmation process has broken down. Through ﬁve

case studies of positions that have recently been without

Senate-conﬁrmed ocials, the report oers key insights:

• There is little downside or consequence for an

administration to sidestep the Senate with a tempo-

rary appointment.

• The laws governing the use of temporary ocials are

ambiguous and hard to enforce.

• Some vacancies are intended to reﬂect an adminis-

tration’s policies.

• The Senate often contributes to, or even causes,

vacancies in key positions in order to achieve politi-

cal objectives.

• Some agencies operate eectively with career leaders

in lieu of political appointees.

EXECUTIVE SUMMARY

2 PARTNERSHIP FOR PUBLIC SERVICE

INTRODUCTION

the law and competing statutes enable presidents to ﬁnd

alternative and sometimes creative methods.

Even identifying who is acting in the role of a Sen-

ate-conﬁrmed appointee can be dicult. While some

people are given the ocial title of “acting,” others are

declared to be “performing the duties of” or given some

other moniker. The reasons for the various titles are not

always clear, but a change in terminology often signals an

individual is continuing to perform an acting role after

the time limits of the vacancies act have expired, thereby

circumventing speciﬁc provisions in the law that deﬁne

who may serve as an acting leader and for how long. (For

the purposes of this report, all temporary ocials are re-

ferred to as acting ocials even when some of them have

varying titles.)

A recent ﬁnding by the Government Accountability

Oce has challenged the Trump administration’s applica-

tion of current law in designating acting leaders and con-

cluded that the appointments of Chad Wolf, acting sec-

retary of the Department of Homeland Security, and Ken

Cuccinelli, his acting deputy, did not follow the process as

deﬁned in the Homeland Security Act of 2002, which es-

tablishes the DHS line of succession.

Although the impact

of GAO’s ﬁnding on the current and future administrations

is unclear, it may have caught the attention of the presi-

dent. On Aug. 25, 2020, Trump announced via Twitter that

he would nominate Wolf to be the secretary of DHS.

While many acting and unconﬁrmed leaders are ex-

perienced and capable, their temporary nature can limit

long-term planning and erode employee morale. For

some agencies, the lack of a Senate-conﬁrmed person in

a leadership role may have little negative impact on the

day-to-day operations. Yet extended management by

those who are not Senate-conﬁrmed can decrease trans-

parency in how decisions are made.

Some critics charge that presidents also use tempo-

rary ocials to circumvent the Senate’s advice-and-con-

sent role and appoint individuals who might not other-

wise be conﬁrmed.

5 Randolph Walerius and Tanvi Misra, “GAO says Wolf, Cuccinelli

appointments at HS invalid,” Roll Call, Aug. 14, 2020. Retrieved from

https://bit.ly/3kSI1u5

One of the most important tasks for any president is to ﬁll

more than 1,200 politically appointed government posi-

tions needing Senate conﬁrmation. Presidents use tem-

porary ocials — often referred to as “acting” ocials

— on an interim basis pending the selection, nomination

and conﬁrmation of a Senate-conﬁrmed appointee. This

reliance on acting ocials has become more prevalent in

recent years, and in some positions, an acting ocial is

now the norm rather than the exception.

President Donald Trump has expressed a pref-

erence for temporary appointees because of the per-

ceived ﬂexibility to move or reassign them, a perspec-

tive not expressed by his predecessors.

Even Trump’s

third White House chief of sta, Mick Mulvaney —

though not in a Senate-conﬁrmed position — carried

the “acting” qualiﬁer for his entire 15-month tenure.

Presidential preference, however, is far from the only

reason many key federal positions remain vacant or are

ﬁlled by a temporary ocial. The Senate’s conﬁrmation

process is challenging and takes twice as long today as

it did during President Ronald Reagan’s administration.

Increased partisanship and a dicult vetting process are

also contributing factors. Some positions are left vacant

for policy reasons while others have been a challenge to

ﬁll for multiple presidents.

So how do presidents ﬁll positions in the absence of

Senate-conﬁrmed appointees?

Since the ﬁrst term of President George Washington,

Congress has given the president limited authority to

appoint acting ocials to perform the duties temporar-

ily — without Senate approval — of a vacant oce that is

required to be ﬁlled with the advice and consent of the

Senate.

The most recent iteration of the law, the Federal

Vacancies Reform Act of 1998,

spells out the procedures

used to appoint acting ocials, although ambiguities in

1 Amanda Becker, “Trump says acting Cabinet members give him ‘more

ﬂexibility,’” Reuters, Jan. 6, 2019. Retrieved from https://reut.rs/2VyaoAY

2 Partnership for Public Service, “Senate Conﬁrmation Process Slows

to a Crawl,” January 2020. Retrieved from https://bit.ly/3b2vEFS

3 For a history of laws governing vacancies, see the Supreme Court’s

decision in NLRB v. SW General, Inc., 137 S. Ct. 929, 2017.

4 Pub. L. No. 105 -277, Div. C, tit. 1, §151, 112 Stat. 2681-611-16, codiﬁed

at 5 U.S.C.§3345-3349d.

THE REPLACEMENTS 3

WHY VACANCIES

MATTER

Acting ocials — even if they are seasoned and

highly regarded individuals — often lack the

perceived authority that accompanies Senate

conﬁrmation.

Many acting ocials do not feel like it is their place

to make long-term policy or operational and manage-

ment decisions that will bind their successors.

Thad Allen, former commandant of the Coast Guard,

said, “People who are in an acting capacity feel they do

not have the power to make long-term changes and do

what they need to do.”

In some ways, acting ocials are like substitute

teachers — they may be skilled professionals who have

much to oer the students, but they are not perceived

by those around them as having the full authority of the

teacher, and they do not view themselves as having the

right to make decisions with long-term impact.

“To eectively lead an agency, you need as much

authority and gravitas as you can muster,” Robert Bon-

ner told The Wall Street Journal.

Bonner, who was con-

ﬁrmed by the Senate to lead both the Drug Enforcement

Administration and the U.S. Customs and Border Protec-

tion agency, added, “If you’re not a conﬁrmed head of an

agency … you’re not going to be able to command as much

respect and attention from your own people and from

other agencies whose cooperation is important.”

Observers have posited the Trump administration,

frustrated by historic and unremitting delays in the Sen-

ate’s consideration of its nominees, has pursued a strat-

egy of relying on acting ocials. Ken Cuccinelli, who has

served in multiple senior positions under Trump, told Fox

News, “The Trump administration has been somewhat

frustrated with how long it takes to get people through

the Senate … So they’ve had to use … these alternatives

that are legal, they’re just less preferential to getting a full

Senate appointment.”

7 Partnership for Public Service, “Government Disservice: Over-

coming Washington Dysfunction to Improve Congressional Stew-

ardship of the Executive Branch,” September 2015. Retrieved from

https://bit.ly/2ypo1vS

8 Byron Tau, “Half of 10 Biggest Federal Law Agencies Lack Perma-

nent Chiefs,” The Wall Street Journal, May 16, 2019. Retrieved from

https://on.wsj.com/2Wwzkua

9 “Ken Cuccinelli reacts to judge ruling he was unlawfully appointed

In June 2020, for example, Trump nominated re-

tired general ocer Anthony Tata to serve as the under-

secretary of defense for policy. Tata was a controversial

nominee due in part to ﬁndings of misconduct while in

uniform and for controversial public comments he made

after his service. When it was clear by August that Tata’s

nomination would not be approved by the Senate Armed

Services Committee due to concerns on both sides of the

aisle, the White House withdrew his nomination and

designated him as “the ocial performing the duties of

the deputy undersecretary of defense for policy.” That

role eectively made him the ﬁrst assistant to Acting Un-

dersecretary of Defense for Policy James Anderson and

thus eligible to replace Anderson if the administration so

chooses. The move drew furious criticism from Senate

Democrats, including the senior Democrat on the Armed

Services Committee, Sen. Jack Reed, D-R.I., who called

it, “a ﬂagrant end run around the conﬁrmation process.”



This report oers insights into the use of temporary

ocials, the consequences and the need for reform. In

addition to quantifying the extent of their use, the report

includes ﬁve case studies that illustrate unique and com-

plex circumstances that surround speciﬁc positions. The

report concludes by oering recommendations to clarify

the rules governing acting ocials, reduce the frequency

of temporary leaders and promote a government that is

well-served by committed appointees working on behalf

of the American people.

6 Aaron Mehta, “Controversial nominee Tata appointed to a top de-

fense job, bypassing Congress,” Defense News, Aug. 2, 2020. Retrieved

from https://bit.ly/32wG6mq

4 PARTNERSHIP FOR PUBLIC SERVICE

Members of Congress from both parties have de-

cried the lack of Senate-conﬁrmed appointees and re-

sulting reliance on temporary ocials. “It’s a lot. It’s way

too many,” said Sen. James Lankford, R-Okla., about the

number of acting ocials in Cabinet agencies in 2019.

“You want to have conﬁrmed individuals there because

they have a lot more authority to be able to make deci-

sions and implement policy when you have a conﬁrmed

person in that spot.” Sen. Amy Klobuchar, D-Minn.,

speaking on the Senate ﬂoor, said, “The American people

deserve qualiﬁed nominees, and it is our job to ensure we

take the time and care necessary to conﬁrm people who

will serve their country with distinction.”

“Make no mistake — the ongoing vacancies and lack

of steady leadership have consequences, especially at a

time like this,” stated Rep. Bennie Thompson, D-Miss.,

this past March.

“For example, since 9/11, the federal

government has invested heavily in developing doctrine

to deﬁne roles and responsibilities for incident response.

But no one in the administration seems to be familiar

with them. As Americans face a potential coronavirus

pandemic, the administration appears to be caught ﬂat-

footed, scrambling to ﬁgure out who is in charge.”

But the political parties diverge on the reason for the

slow pace of conﬁrmations. Lankford successfully cham-

pioned a change to reduce the hours of debate required

for most nominations, limiting the ability of senators

to slow the conﬁrmation of nominees.

Klobuchar and

other Senate Democrats opposed the change; Klobuchar

said it would “remove important checks and balances” at

a time when “we also know that we are getting a slew of

unqualiﬁed nominees.”

Nominations continue to be a

partisan ﬂashpoint, leaving acting ocials in charge for

extended periods despite the changes intended to ad-

vance nominees through the process more quickly.

to lead U.S. immigration agency,” Fox News, March 2, 2020. Retrieved

from https://bit.ly/3d5Q6Xa

10 Juliet Eilperin, Josh Dawsey and Seung Min Kim, “‘It’s way too

many’: As vacancies pile up in Trump administration, senators grow

concerned,” The Washington Post, Feb. 4, 2019. Retrieved from https://

wapo.st/2Ztytgu

11 Sen. Amy Klobuchar, “On the Senate Floor, Klobuchar Fights to En-

sure Nominees to Federal Bench and Executive Branch Are Fully Vet-

ted,” April 2, 2019. Retrieved from https://bit.ly/3g8s2p4

12 “Statement of Rep. Bennie Thompson.” Hearing on “A Review of

the Fiscal Year 2021 Budget Request for the Department of Homeland

Security,” House Committee on Homeland Security, March 3, 2020. Re-

trieved from https://bit.ly/3gzyqFV

13 Sen. James Lankford, “Senator Lankford Discusses His Nomina-

tions Rules Change Proposal on Senate Floor,” April 2, 2019. Retrieved

from https://bit.ly/3g4lzvj

14 Sen. Amy Klobuchar, “On the Senate Floor, Klobuchar Fights to En-

sure Nominees to Federal Bench and Executive Branch Are Fully Vet-

ted,” April 2, 2019. Retrieved from https://bit.ly/3g8s2p4

Many acting ocials are asked to perform multiple

jobs at the same time, dividing their attention and

increasing their responsibilities.

Leadership positions are demanding jobs that require a

great amount of time and attention. Yet when a person

is given the responsibilities of multiple positions, it be-

comes more dicult to eectively perform the full duties

of each role. This “dual-hatting” has occurred numerous

times in recent years. For example, in June 2019, Gail En-

nis was appointed to serve temporarily as the inspector

general for the Department of the Interior while serving

simultaneously as the inspector general for the Social

Security Administration.

This meant that for about two

months, Ennis was the inspector general for two agen-

cies at the same time. Margaret Weichert, already the

deputy director for management at the Oce of Manage-

ment and Budget, was simultaneously dual-hatted as the

acting director of the Oce of Personnel Management, a

role she ﬁlled from October 2018 until September 2019.

In a few instances, ocials have performed three

jobs simultaneously. William Todd was named acting un-

dersecretary for management at the Department of State

in February 2018. For about a year, Todd also served as

acting director general of the foreign service/director of

human resources in addition to maintaining his ocial

position of deputy undersecretary for management.

The use of temporary ocials can complicate and

even invite legal challenges to government action.

When a person or group sues the federal government, the

fact that an acting ocial was involved in the decision

can be used as a legal objection. For example, in Novem-

ber 2018, the state of Maryland questioned the method

by which Matthew Whitaker was appointed acting attor-

ney general.

A month later, the issue was raised again

as Whitaker contemplated a rule change to ban the use

of bump stocks in semiautomatic riﬂes. Senior Justice

Department lawyers advised Whitaker against signing

such a change because a legal challenge to how he was

appointed might be used in court.

In fact, at least ﬁve

federal lawsuits were ﬁled and a central argument to

15 Miranda Green, “Trump appoints Social Security Administration

watchdog to also oversee Interior,” The Hill, June 10, 2019. Retrieved

from https://bit.ly/32kSrf7

16 Tajha Chappellet-Lanier, “Dale Cabaniss conﬁrmed as OPM direc-

tor,” fedscoop, Sept. 11, 2019. Retrieved from https://bit.ly/30OUzJD

17 U.S. Department of State, “William E. Todd.” Retrieved June 25,

2020, from https://bit.ly/3dpI4sF

18 Ann E. Marimow, “Maryland challenges legality of Whitaker’s ap-

pointment as acting U.S. attorney general,” The Washington Post, Nov.

13, 2018. Retrieved from https://wapo.st/3acUofr

19 Devlin Barrett, “Senior Justice Dept. ocials told Whitaker sign-

ing gun regulation might prompt successful challenge to his ap-

pointment,” The Washington Post, Dec. 21, 2018. Retrieved from

https://wapo.st/2E4XhDn

THE REPLACEMENTS 5

several cases involved objections to Whitaker’s status.

Although the legal challenges were eventually dismissed,

the fact that such a rule change was made by an ocial

who was not conﬁrmed by the Senate provided addi-

tional obstacles for the government to defend its actions.

In another instance of legal uncertainty, the Oce of

Personnel Management’s inspector general found in 2016

Beth Cobert could no longer serve as OPM acting direc-

tor after she was formally nominated for the same posi-

tion, and thus her decisions since the date of her nomi-

nation were void. The inspector general disagreed with

the Justice Department’s view that her acting status was

permissible under the vacancies act.

Similarly, the Government Accountability Oce de-

cision in August 2020 that the Trump administration im-

properly appointed two top ocials at the Department

of Homeland Security might contribute to future legal

challenges. Immigrant advocacy groups have challenged

the White House’s policies by arguing the ocials who

20 Nick Penzenstadler, “Judge says ban on rapid-ﬁre ‘bump stocks’ can

go forward, rejects challenge to new rules,” USA Today, Feb. 26, 2019.

Retrieved from https://bit.ly/2ZKsGmL

21 Eric Yoder and Joe Davidson, “OPM director nominee can’t serve as

acting agency head, inspector general says,” The Washington Post, Feb.

17, 2016. Retrieved from https://wapo.st/2DD8Pxd

implemented such initiatives lacked proper legal author-

ity to do so.

The GAO ruling will likely lead to more liti-

gation on the subject.

The use of temporary ocials in ways that are not

clearly explained in the vacancies law can create a set

of legal complications and complicate the government’s

defense against lawsuits. “The Senate conﬁrmation pro-

cess puts that issue to rest,” said Bob Rizzi, a lawyer who

has guided political appointees through the conﬁrmation

process. Having a permanent ocial “blesses the legiti-

macy of the person in that oce.”

22 Erica Werner and Nick Miro, “Top DHS ocials Wolf and Cucci-

nelli are not legally eligible to serve in their current roles, GAO ﬁnds,” The

Washington Post, Aug. 14, 2020. Retrieved from https://wapo.st/314etBZ

LAWS GOVERNING THE USE OF ACTING OFFICIALS: THE FEDERAL VACANCIES REFORM ACT

The Federal Vacancies Reform Act of 1998 updated the law specifying how a government employee may temporarily perform the du-

ties of a vacant position in an executive agency that is subject to Senate conﬁrmation.

While the legislative history acknowledges that

some positions are subject to separate statutes regarding succession, the act is intended to provide the general framework for the vast

majority of Senate-conﬁrmed positions and creates a time limit for service of acting ocials.

The cap is generally 210 days, although

it increases to 300 days for vacancies at the beginning of a president’s ﬁrst term. The time limits are paused while a nomination for the

position is pending in the Senate. The legislation was intended to encourage administrations to nominate qualiﬁed people in a timely

manner without undermining the Senate’s advice-and-consent role.

The law provides for three classes of people who may carry out the duties of the oce without Senate conﬁrmation: the ﬁrst assistant

to the vacant position, an ocial in any other Senate-conﬁrmed position or a senior ocer within that agency.

Once the time limit for a temporary ocial is reached, the law states the position is vacated and the duties vested in that position are

delegated to the head of the agency. However, the law is not speciﬁc on who performs the duties of the agency head when that position

is vacant and the act’s time limit on an acting ocial is reached.

The law is intended to give presidents considerable ﬂexibility in ﬁlling vacant positions. Yet, the gray areas of the law and diculties

enforcing time limits have given presidents considerable latitude in ﬁlling positions.

23 Partnership for Public Service, “The Vacancies Act: Frequently Asked Questions,” Nov. 1, 2017. Retrieved from https://bit.ly/3bJyocY

24 “Federal Vacancies Reform Act of 1998,” 5 U.S.C. § 3345 et seq.

6 PARTNERSHIP FOR PUBLIC SERVICE

THE PREVALENCE OF VACANCIES IN

SENATE-CONFIRMED POSITIONS AND

THE APPROACHES TO FILLING THEM

of Senate-conﬁrmed appointees. Filling open positions,

particularly those requiring congressional approval, is a

multistep process that has been governed by norms, re-

quirements and laws.

The prevalence of temporary ocials in the Trump

administration goes beyond the Cabinet and exists

throughout the executive branch. As of Aug. 17, 2020,

only 70% of 757 key Senate-conﬁrmed positions tracked

by the Partnership for Public Service and The Washing-

ton Post were ﬁlled with conﬁrmed ocials. The remain-

ing 30% were either vacant or ﬁlled by an acting ocial.

Vacancies have been evident throughout many key

departments. As of Aug. 17, eight of the 15 Cabinet-level

agencies were without Senate-conﬁrmed appointees for

27 Current data is available at the database maintained by the Part-

nership for Public Service and The Washington Post located at

https://wapo.st/3fygtr6

From the earliest days of the republic, presidents have

used acting ocials to ﬁll important federal positions and

vacancies. In the two terms of the most recent presidents,

Barack Obama had 14 acting ocials serve as Cabinet sec-

retaries while George W. Bush had 13 and Bill Clinton 11.

Trump has used many more acting ocials. In his

Cabinet, Trump had more acting ocials in his ﬁrst three

years (27) than each of the previous ﬁve presidents had

during their entire presidencies.

The preceding ﬁve ad-

ministrations used an average of about seven acting Cabi-

net ocials per four-year term.

Like previous administrations, Trump has used many

dierent methods to ﬁll vacancies and even challenged

well-established assumptions around the importance

25 This number excludes acting ocials who served fewer than 10

days; Anne Joseph O’Connell, “Actings,” Columbia Law Review 120(3),

April 2020, 613–728. Retrieved from https://bit.ly/2YEMw2L

26 Ibid.

Number of Senate-conﬁrmed positions without a conﬁrmed appointee in

Cabinet-level departments as of Aug. 17, 2020

Number of

Senate-conﬁrmed

positions

Currently vacant

positions

Continuously vacant

positions under

Trump

No. % No. %

Agriculture 13 4 31% 1 8%

Commerce 21 9 43 1 5

Defense 59 21 36 0 N/A

Education 16 7 44 2 13

Energy 23 3 13 0 N/A

Health and Human Services 18 3 17 3 17

Homeland Security 17 11 65 2 12

Housing and Urban Development 13 2 15 1 8

Interior 18 5 28 2 11

Justice* 29 16 55 9 31

Labor 14 4 29 2 14

State** 59 24 41 7 12

Transportation 22 10 45 3 14

Treasury 26 9 35 5 19

Veterans Aairs 12 3 25 1 8

*Does not include United States attorneys and United States marshals **Does not include ambassadors

Note: Data includes full-time, civilian positions that are Senate-conﬁrmed.

Source: The Partnership for Public Service and The Washington Post

THE REPLACEMENTS 7

Positions without a Senate-conﬁrmed appointee since the beginning of the Trump administration

in the Departments of Justice, Interior and State

Jan. 20, 2017–Aug. 17, 2020

Vacant Position

Name of Ocial Performing

Duties

Title Given

Department of Justice

Assistant Attorney General for the Justice Programs

Division

Katharine Sullivan

Principal Deputy Assistant Attorney

General of the Oce of Justice Programs

Assistant Attorney General for the Tax Division Richard E. Zuckerman Principal Deputy Assistant Attorney General

Administrator, Drug Enforcement Administration* Timothy Shea Acting Administrator

Deputy Administrator, Drug Enforcement

Administration

Preston L. Grubbs Principal Deputy Administrator

Chairman, Foreign Claims Settlement Commission Vacant

Chairman, U.S. Parole Commission Patricia K. Cushwa Vice Chairman and Acting Chairman

Special Counsel for Immigration-Related Unfair

Employment Practices*

Vacant

Director, Bureau of Alcohol, Tobacco, Firearms and

Explosives

Regina Lombardo Acting Deputy Director

Director, Community Relations Service Gerri Ratli Deputy Director

Director, Oce on Violence Against Women Laura L. Rogers

Acting Director of the U.S. Department of

Justice’s Oce on Violence Against Women

Department of the Interior

Director, Bureau of Land Management William Perry Pendley

Deputy Director, Policy and Programs,

Bureau of Land Management, Exercising

Authority of the Director

Director, National Park Service David Vela**

Deputy Director, Exercising the Authority

of Director for the National Park Service

Special Trustee for American Indians Jerold Gidner

Acting Special Trustee and Principal

Deputy Special Trustee

Department of State

Chief Financial Ocer Vacant

Undersecretary for Civilian Security, Democracy

and Human Rights

Nathan A. Sales

Acting Undersecretary for Civilian

Security, Democracy and Human Rights

Assistant Secretary for Oceans and International,

Environmental and Scientiﬁc Aairs

Jonathan Moore Principal Deputy Assistant Secretary

Assistant Secretary for Population, Refugees and

Migration

Carol Thompson O’Connell Acting Assistant Secretary

Assistant Secretary for South Asian Aairs Dean Thompson Principal Deputy Assistant Secretary

Coordinator for Threat Reduction Programs Ryan Taugher Acting Oce Director

Representative of the United States to the

Association of Southeast Asian Nations

Melissa A. Brown Chargé d’Aaires ad interim

Representative of the United States to the

Organization for Economic Cooperation and

Development

Andrew Haviland

Chargé d’Aaires ad interim and Acting

Permanent Representative

Special Envoy for North Korea Human Rights Issues Vacant

Alternate Representative of the United States of

America for Special Political Aairs in the United

Nations, with the Rank of Ambassador

Vacant

* Position is exempted from the Federal Vacancies Reform Act of 1998. ** Vela announced he will retire in September 2020. He will be replaced by

Margaret Everson, principal deputy director of the U.S. Fish and Wildlife Service.

Note: Several of the vacant positions have nominations pending in the Senate as of August 2020.

28 Benjamin J. Hulac, “Park Service head retires; successor quickly named,” Roll Call, Aug. 7, 2020. Retrieved from https://bit.ly/2DNUjmn

Source: Partnership for Public Service

8 PARTNERSHIP FOR PUBLIC SERVICE

more than a third of their top positions. Almost two-

thirds (65%) of the key positions in the Department of

Homeland Security were either vacant or ﬁlled with an

acting ocial, as were slightly more than half of the top

29 positions at the Department of Justice, 44% at the

Department of Education and 45% at the Department of

Transportation.

When a Senate-conﬁrmed position is vacant, who

ﬁlls in? The answer is that there is no single method for

how these leadership positions are ﬁlled. Instead, the ad-

ministration has used a complex array of temporary titles

and assumed authority with limited opportunity for pub-

lic scrutiny.

To demonstrate the various methods used to ﬁll posi-

tions, the table above shows examples of the wide array

of titles from three of the largest agencies — departments

of Interior, State and Justice. The table includes positions

that have not had a conﬁrmed ocial for more than three

and a half years — from Trump’s inauguration, Jan. 20,

2017, through Aug. 17, 2020.

For some of these positions, simply identifying the

individuals performing the duties is a challenge. Agency

websites show a collection of acting ocials, principal

deputies, acting assistant secretaries and those “exercis-

ing authority of the director.” In short, there is no uniform

set of titles either within or across the three departments.

In some instances, the Trump administration has

temporarily ﬁlled a position by clearly labeling an individ-

ual as the acting ocial. For example, at the Department

of Justice, Regina Lombardo, a longtime law enforcement

ocial at the Bureau of Alcohol, Tobacco, Firearms and

Explosives, has been serving as acting director since Oc-

tober 2019, while the administration has nominated an-

other person to become the permanent director.

By contrast, no one has been appointed to be the act-

ing director of the Community Relations Service within

DOJ. The top ocial there is Gerri Ratli, the deputy di-

rector since January 2017.

The agency website refers to

Ratli as the deputy director and does not have an easily

identiﬁable page associated with the director position.

The oce has become a subject of controversy during the

current focus on civil rights and community policing. The

Trump administration proposed eliminating the agency

and shifting its responsibilities to the Civil Rights Divi-

sion in each of its budget requests to Congress.

Support-

ers claim the CRS is meant to address the very conﬂicts

29 Alex Leary, “Trump to Name President of National Police Ocers

Group to Lead ATF,” The Wall Street Journal, May 24, 2019. Retrieved

from https://on.wsj.com/2Oo3njU

30 The United States Department of Justice, “Meet the Deputy Direc-

tor.” Retrieved Aug. 28, 2020, from https://bit.ly/2Wx5tBR

31 Gabriel T. Rubin, “Democrats Push to Block Trump-Requested

Cuts to Community Policing Programs,” The Wall Street Journal, June

5, 2020. Retrieved from https://on.wsj.com/3eu5zBQ

and issues of racism aecting communities around the

country.

At the Department of the Interior, the responsibili-

ties of the director of the Bureau of Land Management

have been fulﬁlled since July 2019 by William Perry

Pendley, the deputy director of policy and programs. But

Pendley does not have the ocial title of acting director.

Instead, the bureau’s website lists Pendley as the deputy

director “exercising the authority of the director.”

Press

reports sometimes incorrectly refer to Pendley as the act-

ing director even though that is not his ocial title.

At the Department of State, some top ocials are

listed with yet other titles. For instance, there is no con-

ﬁrmed appointee for the assistant secretary for South

Asian aairs. The Department of State’s website does not

include a clear reference to that position, but instead lists

Dean Thompson as the top ocial with the title of princi-

pal deputy assistant secretary.

As for ambassadorial va-

cancies abroad, the vacancies law does not apply, accord-

ing to former Undersecretary of State for Management

Patrick Kennedy. Someone does not become the “acting

ambassador”; one becomes the “chargé d’aaires” in ac-

cordance with international diplomatic practice.

The multitude of approaches makes it dicult for

Congress, citizens and other interested parties to hold

temporary leaders accountable, let alone contact them for

critical information or assistance. In order to dig deeper

into how the Trump administration has ﬁlled high-level

vacancies in the absence of Senate-conﬁrmed leaders,

the following section provides ﬁve examples, highlights

the particular circumstances that have contributed to

each situation and shows how the vacancy law has been

applied or in some cases circumvented.

32 A.C. Thompson and Robert Faturechi, “How a Key Federal Civil

Rights Agency Was Sidelined as Historic Protests Erupted,” ProPublica,

July 9, 2020. Retrieved from https://bit.ly/2Wmdo5r

33 Bureau of Land Management, “Leadership.” Retrieved May 27,

2020, from https://on.doi.gov/2AhmvMU

34 Associated Press, “Bureau of Land Management director to contin-

ue through April,” April 6, 2020. Retrieved from https://bit.ly/3cb8wFo

35 U.S. Department of State, “Bureau of South and Central Asian Af-

fairs.” Retrieved Aug. 26, 2020, from https://bit.ly/3ek6zb7

THE REPLACEMENTS 9

INSIGHTS AND CASE STUDIES

Background

The job of director had been held by Jonathan Jarvis for

seven years until the end of Obama’s term. Michael T.

Reynolds, a 34-year veteran of the park service,

exer-

cised the authority of the position for the ﬁrst year of the

Trump administration, followed by Daniel Smith, who

was named acting director in January 2018. Smith came

out of retirement to accept the role after serving as super-

intendent of Colonial National Historical Park in Virginia

for a decade.

While Smith was serving as acting director, the

Trump administration formally nominated veteran park

service employee Vela to become the full-time director.

Vela spent 30 years with the agency and four years as

the superintendent of Grand Teton National Park.

The

Senate Committee on Energy and Natural Resources

held a hearing for Vela two months after his September

2018 nomination and reported him favorably to the full

37 National Park Service, “Mike Reynolds Named NPS Regional Direc-

tor of Department of the Interior Lower Colorado Basin, Upper Colora-

do Basin, and Arkansas-Rio Grande-Texas-Gulf Regions,” Oct. 23, 2019.

Retrieved from https://bit.ly/39WohAz

38 Miranda Green, “Acting National Park Service director gets new

role overseeing 2026 Independence Day celebration,” The Hill, Sept.

30, 2019. Retrieved from https://bit.ly/3k9qYUg

39 Congress.gov, “PN2477 — Raymond David Vela — Department of

the Interior.” Retrieved Aug. 28, 2020, from https://bit.ly/3fptsvg

40 Jenni Gritters, “Vela to Serve as Acting Director of the NPS, Ef-

fective Immediately,” REI Co-op Journal, Oct. 1, 2019. Retrieved from

https://bit.ly/3dnZJRC

Most recent ocials

National Park Service

Director

Pres. Name Start End

Obama Jonathan Jarvis Oct. 2009 Jan. 2017

Trump Michael T.

Reynolds (acting)

Jan. 2017 Jan. 2018

Daniel Smith

(acting)

Jan. 2018 Sept. 2019

Raymond David

Vela (acting)

Oct. 2019 Sept. 2020

Margaret Everson

(acting)

Sept. 2020

Insight 1: There is little downside for an

administration to designate a temporary

leader in order to sidestep the complicated

Senate conﬁrmation process.

Case study: Director, National Park Service

Why does this position lack a Senate-conﬁrmed

appointee?

The National Park Service has been without a Senate-

conﬁrmed director since the beginning of the Trump

presidency. Instead, the administration has given the du-

ties of the job to multiple people on a temporary basis.

One recent appointee, Raymond David Vela, had been ex-

ercising the authority of the director from October 2019

to September 2020 — much longer than the time allotted

for acting ocials to serve according to the vacancies law.

Vela was nominated in 2018 to become the permanent di-

rector and would have been the ﬁrst Hispanic American

to hold the position. But Vela never received a vote from

the full Senate. His pending nomination was returned to

the president at the end of the 115th Congress, per Senate

rules. Instead of renominating him, the administration

gave Vela the temporary title and the responsibilities of

the job.

The reasons this position has been ﬁlled with tem-

porary ocials appear to be a combination of timing and

priority — not necessarily because of signiﬁcant opposi-

tion or controversy regarding Vela or other nominees. It

appears to have been easier for the Trump administration

to designate Vela to serve in an acting capacity than to go

through the eort to renominate him — and there is rela-

tively little pressure to alter that situation.

Who was ﬁlling this position in the absence of a

Senate-conﬁrmed leader and what was their title?

Following Vela’s retirement in September, Margaret

Everson, the principal deputy director of the U.S. Fish

and Wildlife Service, was given the authority of the di-

rector position.

36 Benjamin J. Hulac, “Park Service head retires; successor quickly

named,” Roll Call, Aug. 7, 2020. Retrieved from https://bit.ly/2DNUjmn

10 PARTNERSHIP FOR PUBLIC SERVICE

Senate with little opposition.

However, Vela’s nomina-

tion never received a Senate vote and was returned to the

president on Jan. 3, 2019 at the end of the 115th Congress.

No public reason was given for why Vela did not receive

a vote, although Senate sta suggested Senate Majority

Leader Mitch McConnell, R-Ky., could not get bipartisan

agreement to include Vela in a package of nominees at the

end of the year.

Vela’s nomination was not resubmitted to the Senate

at the beginning of the new Congress. Although the com-

mittee would likely have moved his nomination forward

again, Secretary of the Interior David Bernhardt issued

an order to have Vela exercise the authority of director

to replace Smith on Oct. 1, 2019.

Vela was not given

the ocial title of “acting” director even though he was

given the authority of that position. Bernhardt’s order

stated Vela would serve until at least Jan. 3, 2020. Subse-

quent orders extended Vela’s role through at least June

5, 2020.

Since then, Vela and other temporary leaders

in the Interior Department had their authority extended

through a series of (legally questionable) reappointments

and succession orders that have been the subject of a law-

suit ﬁled by two environmental groups.

Why the lack of a Senate-conﬁrmed ocial matters

Vela stated he believed his title had little impact on his

eectiveness. “For the most part, and as it pertained to

the daily operations of the NPS, I felt I did have the au-

thority to do the job,” he said. However, Vela added that

the agency and its workforce would have beneﬁtted from

a Senate-conﬁrmed ocial at the top. “For the ﬁrst time

in its history, the Park Service didn’t have a permanent

director … The NPS workforce as well as our partners

and park visitors need to know and have conﬁdence in

the direction the agency will follow in a second century

of service.”

Some advocacy organizations expressed additional

dissatisfaction with the lack of a conﬁrmed director.

Most of those concerns reﬂected unhappiness with the

process and the disregard for the formal conﬁrmation

41 Rob Hotakainen, “Smith out, Vela in as NPS acting director,” E&E

News, Sept. 27, 2019. Retrieved from https://bit.ly/3ceHmhV

42 National Park Service, “Secretary Bernhardt Announces New National

Park Leadership,” Sept. 30, 2019. Retrieved from https://bit.ly/2YV72vV

43 The Secretary of the Interior, “Order No. 3345 Amendment No. 30,”

Jan. 2, 2020. Retrieved from https://on.doi.gov/3cbnHiI; The Secretary

of the Interior, “Order No. 3345 Amendment No. 32,” May 5, 2020. Re-

trieved from https://on.doi.gov/3fAgYRA

44 Kelsey Tamborrino and Anthony Adragna, “Trump’s ‘unforced er-

ror’ puts Western Senate Republicans in an election jam,” Politico, July

17, 2020. Retrieved from https://politi.co/2PueKav; Public Employees

for Environmental Responsibility, “Press Release: Lawsuit Seeks Oust-

er of Park Service and BLM Leaders,” May 11, 2020. Retrieved from

https://bit.ly/3kgEEg5

role of the Senate, and not opposition to the individual

serving in the position.

For example, Theresa Pierno, president and CEO

for National Parks Conservation Association, noted her

organization supported Vela’s nomination, but objected

to how he was placed into that role without being renom-

inated. Pierno wrote, “Despite the Trump administration

having every opportunity to formally advance a National

Park Service director nomination, thousands of National

Park Service employees have gone more than two and a

half years without an empowered leader. Park superin-

tendents aren’t getting support to fulﬁll their steward-

ship responsibilities and the public is shut out of one de-

cision after another.”

45 National Parks Conservation Association, “Press Release: Trump

Administration Continues to Ignore Park Service Director Nomina-

tion,” Oct. 1, 2019. Retrieved from https://bit.ly/2yBiX7y

THE REPLACEMENTS 11

Insight 2: Statutes governing vacancies are

dicult to enforce.

Case Study: Administrator, Drug Enforcement

Administration

Why does this position lack a Senate-conﬁrmed

appointee?

While the administrator of the Drug Enforcement Admin-

istration requires Senate conﬁrmation, the position has

been ﬁlled by an acting ocial for eight of the last 12 years.

In the legislative history of the Federal Vacancies Re-

form Act, the Senate noted that ocials in this position

were subject to other authority.

Both the Obama and

Trump administrations agreed, ﬁnding that an executive

order by President Richard Nixon creating the agency

superseded the vacancies law.

Under Nixon’s order, a

top vacancy can be ﬁlled by a Justice Department ocial

chosen by the attorney general for longer than the time

period allowed by the vacancies law. The alternative ap-

pointment scheme, like the vacancies law, gives the Sen-

ate little recourse in forcing a nomination.

Who is ﬁlling this position in the absence of a Senate-

conﬁrmed leader, and what is the title?

Timothy Shea was named acting administrator in May

2020.

He is the fourth-consecutive acting ocial in that

role and replaced Uttam Dhillon, who was the acting ad-

ministrator for more than two years.

Background

The DEA is part of the Department of Justice and has a $2

billion budget and 5,000 special agents in 68 countries.

The agency’s primary role is to enforce laws regarding con-

trolled substances and combat the country’s opioid crisis.

Over the past ﬁve years, neither Presidents Obama

nor Trump formally nominated anyone to this posi-

tion. In 2015, Obama replaced conﬁrmed appointee Mi-

chele Marie Leonhart with former U.S. Attorney Charles

46 “Federal Vacancies Reform Act of 1998,” S. Rep. 105-250, accompa-

nying S. 2176, 105th Congress, 2d Session, 1998.

47 Michael C. Bender, “Trump’s DEA Chief Vetted Candidates and

Then Took the Job Himself, Riling Police Groups,” The Wall Street

Journal, Oct. 25, 2018. Retrieved from https://on.wsj.com/2zgOFXF

48 The Drug Enforcement Administration, “Attorney General Barr an-

nounces Timothy J. Shea as new Acting Administrator of Drug Enforce-

ment Administration,” May 19, 2020. Retrieved from https://bit.ly/37B3lhA

49 The Drug Enforcement Administration, “Stang and Budget.” Re-

trieved May 7, 2020, from https://bit.ly/3du4NnD; The Drug Enforce-

ment Administration, “Foreign Oce Locations.” Retrieved May 7,

2020, from https://bit.ly/2SMI8uR

Rosenberg in an acting capacity. Rosenberg held that po-

sition until resigning in October 2017.

Robert Patterson was the department’s principal

deputy administrator and replaced Rosenberg as the act-

ing administrator for nine months beginning in 2017.

Patterson served until June 2018 when the Trump admin-

istration named Dhillon as acting administrator. Dhillon

had played a role in vetting other candidates for the job

before accepting the position himself.

Shea was named

the acting administrator in May 2020 to replace Dhillon.

Why the lack of a Senate-conﬁrmed ocial matters

The lack of a Senate-conﬁrmed administrator since 2015

has hindered crisis management and long-term plan-

ning for the agency. In a January 2018 letter, 10 Demo-

cratic senators wrote to the president to urge him to ﬁll

positions at DEA, the Oce of National Drug Control

Policy and other agencies essential to combating opioid

abuse.

The senators declared, “We appreciate the work

of the civil servants who are serving as the acting heads

of ONDCP and DEA, but acting leaders cannot enact the

50 Devlin Barrett and Matt Zapotosky, “DEA administrator plans

to step down,” The Washington Post, Sept. 26, 2017. Retrieved from

https://wapo.st/2A2JhYt

51 Devlin Barrett, “DEA chief steps down, citing increasing challenges

of temporary role,” The Washington Post, June 18, 2018. Retrieved from

https://wapo.st/2WEtHKx

52 Michael C. Bender, “Trump’s DEA Chief Vetted Candidates and

Then Took the Job Himself, Riling Police Groups,” The Wall Street

Journal, Oct. 25, 2018. Retrieved from https://on.wsj.com/2zgOFXF

53 Sen. Margaret Wood Hassan et al., United States Senate, Jan. 17,

2018. Retrieved from https://bit.ly/3g62Ijc

Most recent ocials

Drug Enforcement Administration

Administrator

Pres. Name Start End

Bush/

Obama

Michele Marie

Leonhart (acting)

Nov. 2007 Dec. 2010

Michele Marie

Leonhart

Dec. 2010 May 2015

Obama/

Trump

Chuck Rosenberg

(acting)

May 2015 Oct. 2017

Trump Robert W. Patterson

(acting)

Oct. 2017 June 2018

Uttam Dhillon

(acting)

July 2018 May 2020

Timothy Shea

(acting)

May 2020 Current

12 PARTNERSHIP FOR PUBLIC SERVICE

kind of robust response to the ongoing fentanyl, heroin

and opioid epidemic that the crisis demands.”

Assistant Attorney General for Administration Lee

Lofthus said individuals serving in an acting capacity

“need to keep the trains running, but sometimes are lim-

ited in the ability to make major changes on their own

— not because of any rule precluding them from doing

so, but because they may not have sucient support. A

conﬁrmed appointee usually gives more certainty to the

workforce, and to external contacts such as Congress.”

In a farewell email to sta, Patterson wrote, “The ad-

ministrator of the DEA needs to decide and address pri-

orities for years into the future — something which has

become increasingly challenging in an acting capacity.”

54 Devlin Barrett, “DEA chief steps down, citing increasing challenges

of temporary role,” The Washington Post, June 18, 2018. Retrieved from

https://wapo.st/3ceEyBp

THE REPLACEMENTS 13

Insight 3: Administrations choose to leave

some positions unﬁlled as a reﬂection of

their policies.

Case study: Special Envoy for North Korean Human

Rights, Department of State

Why does this position lack a Senate-conﬁrmed

appointee?

The special envoy for North Korean human rights posi-

tion has been without a nominee since the beginning of

the Trump administration as a matter of policy.

Who is ﬁlling this position in the absence of a Senate-

conﬁrmed leader and what is their title?

This position has not been ﬁlled since President Trump

took oce in January 2017, although the responsibilities

were assumed by the undersecretary for civilian security,

democracy and human rights — a position currently ﬁlled

in an acting capacity by Nathan A. Sales. Sales also serves

in the Senate-conﬁrmed role of coordinator for counter-

terrorism.

Background

In 2004, Congress approved the North Korean Human

Rights Act and established a special envoy position that

would “coordinate and promote eorts to improve re-

spect for the fundamental human rights of the people of

North Korea.”

The job was ﬁlled almost continuously

until early 2017.

Since then, the post has remained vacant as the cur-

rent administration, the Senate and the State Department

have debated priorities and approach regarding North

Korea.

When the 2004 law expired in mid-2017, Secretary of

State Rex Tillerson proposed a restructuring plan that in-

cluded the removal or reorganization of dozens of special

envoys.

Tillerson added the duties of the North Korean

human rights envoy to those of the undersecretary of

state for civilian security, democracy and human rights.

55 U.S. Department of State, “Nathan A. Sales.” Retrieved July 16, 2020,

from https://bit.ly/32uvLri; U.S. Department of State, “Under Secretary

for Civilian Security, Democracy, and Human Rights.” Retrieved July 16,

2020, from https://bit.ly/30k7kLV

56 Congress.gov, “H.R.4011 — North Korean Human Rights Act of

2004.” Retrieved Aug. 28, 2020, from https://bit.ly/2SJNZku

57 Josh Rogin, “Tillerson scraps full-time North Korean human

rights envoy,” The Washington Post, Aug. 31, 2017. Retrieved from

https://wapo.st/2SKOPNV

In August 2018, the Trump administration created a

separate new position that does not need Senate conﬁr-

mation called the special representative to North Korea

and appointed Stephen Biegun to the role. In December

2019, Biegun was conﬁrmed to be deputy secretary of

state and continued to be involved with North Korean

issues along with the other duties associated with that

position.

Senators on both sides of the aisle have objected to

the reorganization that left the North Korea envoy po-

sition vacant. Sen. Marco Rubio, R-Fla., told The Wash-

ington Post, “We need a dedicated special envoy focused

speciﬁcally on the North Korean government’s system-

atic and horriﬁc human rights abuses against its own

people.”

Sen. Ben Cardin, D-Md., said, “We need to em-

power the State Department to expose and seek account-

ability for North Korea’s abusive human rights practices,

and I am concerned this proposal [for reorganization of

the envoy’s responsibilities] would fall far short of that

goal.”

Shortly thereafter, Congress and the president re-

authorized the North Korean Human Rights Act, which

required that a special envoy would be conﬁrmed in time

to submit a report to Congress in January 2019.

Never-

theless, as of August 2020, the administration had yet to

nominate a special envoy for North Korean human rights

or appoint an acting special envoy.

Why the lack of a Senate-conﬁrmed ocial matters

The impact of not having a Senate-conﬁrmed special en-

voy for North Korean human rights is in the eye of the be-

holder. The Trump administration appears to have made

a policy decision not to ﬁll the position out of concern

such a move might derail diplomatic eorts. However,

58 Ibid.

59 Ibid.

60 Congress.gov, “H.R.2061 — North Korean Human Rights Reauthori-

zation Act of 2017.” Retrieved Aug. 28, 2020, from https://bit.ly/3fDmy

Most recent ocials

Department of State

Special envoy for North Korean human rights

Pres. Name Start End

Obama Robert R. King Nov. 2009 Jan. 2017

Trump Vacant* Jan. 2017 Current

* The responsibilities of the position have been assumed by the

undersecretary of state for civilian security, democracy, and human

rights — a position ﬁlled by Nathan A. Sales since Sept. 2017.

14 PARTNERSHIP FOR PUBLIC SERVICE

some experts have called on Trump to appoint an envoy

and place more focus on North Korean human rights vio-

lations.

“[The special envoy on North Korean human rights]

is the central ﬁgure for policy and would have direct ac-

cess to the president in carrying out his or her job to ad-

dress the atrocious human rights abuses in North Korea,”

wrote Victor Cha of the George W. Bush Institute.

“The

Trump administration should nominate a candidate.”

61 Victor Cha, “Policy Recommendations: North Korean Human

Rights Critical to Denuclearization,” George W. Bush Presidential Cen-

ter, Nov. 26, 2018. Retrieved from https://bit.ly/3fx3gip

THE REPLACEMENTS 15

Insight 4: The Senate will tolerate, and

even cause, extended vacancies in

leadership roles to accomplish political

objectives.

Case Study: Undersecretary of State for Management

The undersecretary of state for management plays a key

role in the operations of the State Department. The job

has been ﬁlled with a Senate-conﬁrmed ocial since May

2019, but was without one for the previous 28 months.

One of the primary reasons for the lengthy vacancy was

because the nomination of the current undersecretary,

Brian Bulatao, became a bargaining chip in negotiations

between Senate Democrats and the secretary of state re-

garding a separate issue.

Other reasons contributed to the vacancy. The exit

of senior administrative ocials at the State Department

soon after President Trump’s inauguration created a gap

that rarely occurred in previous transitions.

In addition,

a failed nominee preceded Bulatao at a time when the job

was vacant, and this added to the length of time without

a Senate-conﬁrmed appointee.

Who was ﬁlling this position in the absence of a

Senate-conﬁrmed leader?

Prior to Bulatao’s conﬁrmation in May 2019, the position

did not have a Senate-conﬁrmed ocial for the ﬁrst two

years of the Trump administration. From January to June

2017, the position was vacant with no one designated to

ﬁll the role. From June 2017 through May 2019, William

E. Todd served as the acting undersecretary.

Background

In 2017, the National Academy of Public Administration

cited the State Department position as one of the tough-

est management jobs to ﬁll.

“Department expertise in

security, management, administrative and consular posi-

tions in particular are very dicult to replicate and par-

ticularly dicult to ﬁnd in the private sector,” noted Da-

vid Wade, the chief of sta to former Secretary of State

John Kerry.

62 Barbara Plett Usher, “Top U.S. diplomats leave State Department,”

BBC News, Jan. 27, 2017. Retrieved from https://bbc.in/39W8kdU

63 National Academy of Public Administration, “Prune Book 2017: The

40 Toughest Management Positions in Government.” Retrieved from

https://bit.ly/35I2rP3

64 Josh Rogin, “The State Department’s entire senior administrative

team just resigned,” The Washington Post, Jan. 26, 2017. Retrieved from

https://wapo.st/3ccqVm1

For the ﬁrst ﬁve months of the Trump administra-

tion, no one was assigned the duties of the oce. At that

point, Todd was named the acting undersecretary and

served for almost two years, far surpassing the vacancy

law’s 210-day limitation.

Not only was Todd serving

as undersecretary, but for about half of that time he was

ﬁlling two additional positions concurrently: acting di-

rector general of the foreign service/director of human

resources, and his ocial position of deputy undersecre-

tary for management.

The process for getting a conﬁrmed ocial took sev-

eral tries. About six months into his presidency, Trump

nominated Eric Ueland for the job. Though he was voted

on favorably by the Senate Foreign Relations Committee,

Ueland never received a full Senate vote and Trump of-

ﬁcially withdrew his nomination in June 2018.

Following Ueland’s withdrawal, the administration

nominated Bulatao, the former chief operating ocer

and third ranking ocial at the CIA. Though Bulatao

was well-received by the Senate Foreign Relations Com-

mittee, he faced a nearly yearlong wait due to a power

struggle between senators and the administration. Sen.

Robert Menendez, D-N.J., the ranking member on the

committee, held up dozens of State Department nomi-

nations due to a host of issues, including the administra-

tion’s perceived lack of responsiveness to questions about

interactions with foreign leaders and potential political

retribution against career State employees.

After sev-

eral months, Secretary of State Mike Pompeo agreed to

produce documents and Menendez lifted his hold on the

65 U.S. Department of State, “William E. Todd.” Retrieved June 11,

2020, from https://bit.ly/3dpI4sF

66 Congress.gov, “PN1387 — Eric M. Ueland — Department of State.”

Retrieved May 7, 2020, from https://bit.ly/2YJaJ8c

67 Rachel Oswald, “Menendez, Pompeo Feud Over Diplomatic Nomi-

nees,” Roll Call, Oct. 16, 2018. Retrieved from https://bit.ly/39uVrXY

Most recent ocials

Department of State

Undersecretary of state for management

Pres. Name Start End

Bush/

Obama

Patrick Kennedy Nov. 2007 Jan. 2017

Trump Vacant Jan. 2017 June 2017

William E. Todd

(acting)

June 2017 May 2019

Brian Bulatao May 2019 Current

16 PARTNERSHIP FOR PUBLIC SERVICE

nomination in May 2019.

Bulatao was conﬁrmed shortly

thereafter with a 92-5 senate vote.

Why the lack of a Senate-conﬁrmed ocial matters

Former Undersecretary of State Patrick Kennedy, who

held the position under Presidents George W. Bush and

Obama, said the long-term vacancy had a “signiﬁcant

negative impact across the entire management spec-

trum.” He suspects that a permanent undersecretary

would have kept leadership from maintaining a long

hiring freeze, which he said damaged the department.

A conﬁrmed ocial also would have been able to point

out the eects — like lowered morale and increased wait

times for getting passports — to the secretary, Kennedy

said.

Kennedy added that the undersecretary’s role is es-

pecially crucial now because of constant security threats

to embassies around the world. The undersecretary plays

a central role in consular services for Americans abroad,

such as when American medical volunteers had to be

evacuated during the Ebola crisis in Western Africa and

more recently during the COVID-19 pandemic.

Retired ambassador Ronald Neumann, who currently

heads the American Academy of Diplomacy, considered

the undersecretary of state for management vacancy the

most important of the many State Department vacancies

during the Trump administration.

Since taking oce as a Senate-conﬁrmed undersec-

retary, Bulatao initiated a reform strategy focused on tal-

ent management, security infrastructure, technology and

other key work streams. He is also overseeing eorts to

improve employee diversity and equity and inclusion, a

long-standing challenge for the workforce.

68 Nick Wadhams and Daniel Flatley, “Menendez Drops Hold on

Pompeo Friend for State Department Post,” Bloomberg, May 2, 2019.

Retrieved from https://bloom.bg/3cguTKG

69 Congress.gov, “PN111 — Brian J. Bulatao — Department of State.”

Retrieved May 7, 2020, from https://bit.ly/3du6D81

70 Charles S. Clark, “State Department Under Pompeo Still Coping

with Vacancies,” Government Executive, Dec. 17, 2018. Retrieved from

https://bit.ly/35ExkUJ

THE REPLACEMENTS 17

Insight 5: Some agencies and bureaus may

operate eectively with a seasoned career

ocial in charge.

Case Study: Assistant Attorney General, Tax Division,

U.S. Department of Justice

Why does this position lack a Senate-conﬁrmed

appointee?

It is unclear why the Justice Department’s assistant at-

torney general in charge of the Tax Division has not had a

Senate-conﬁrmed appointee for nine of the last 11 years.

Former DOJ ocials and outside observers cited a variety

of reasons apart from the rigor of the conﬁrmation pro-

cess, including the diculty of ﬁnding qualiﬁed lawyers

with tax law expertise, post-employment restrictions and

the eect on one’s career path. Others suggested the Tax

Division does not have a high proﬁle and many of the

most important tax-related investigations are carried out

by other parts of the federal government or local prose-

cutors. Consequently, placing a Senate-conﬁrmed leader

atop the Tax Division may not be a top priority.

Who is ﬁlling this position in the absence of a Senate-

conﬁrmed leader, and what is their title?

No one is in the role of assistant attorney general. The Tax

Division website lists Richard Zuckerman, the principal

deputy assistant attorney general, as the top ocial.

Background

The Tax Division and its roughly 370 attorneys are

charged with enforcing the nation’s tax laws by support-

ing IRS investigations and representing the U.S. in tax

litigation. In a single year, they process almost 6,700 civil

cases and approximately 625 appeals, and authorize be-

tween 1,300 and 1,800 criminal tax investigations.

The top position at the Tax Division is the assistant

attorney general. A temporary ocial in this role is not

a new phenomenon. The position has been ﬁlled by an

acting or temporary ocial for nine of the last 11 years

spanning two administrations, including six of Obama’s

eight years.

President Trump did not nominate anyone for the

job during his ﬁrst three years. On Feb. 12, 2020, Trump

formally nominated Zuckerman, who was the principal

deputy assistant attorney general for the division. Ac-

cording to the Justice Department website, Zuckerman

71 United States Department of Justice, “Tax Division.” Retrieved Aug.

4, 2020, from https://bit.ly/2XtNrlf

72 Tax Division, United States Department of Justice, “FY 2019 Con-

gressional Budget.” Retrieved from https://bit.ly/2SHT64w

is serving as the “head of the Tax Division.”

Essentially,

Zuckerman has been formally nominated to do the job he

is currently doing in a temporary capacity. His nomina-

tion was pending as of August 2020

.74

Why the lack of a Senate-conﬁrmed ocial matters

The impact of this vacancy may be limited. Former ocials

suggested that an acting leader of the Tax Division — along

with the career ocials — can accomplish the agency’s

goals even without a Senate conﬁrmation. In fact, surveys

of government employees show that job satisfaction and

engagement for the division have been consistently higher

in recent years than scores for the Justice Department as

a whole and the entire government.

Since the division

tends to prosecute mostly low-proﬁle cases, there is little

pressure to nominate a permanent ocial.

Former Deputy Assistant Attorney General of Pol-

icy and Planning of the Tax Division Caroline Ciraolo,

73 The United States Department of Justice, “Deputy Assistant Attor-

ney General.” Retrieved May 7, 2020, from https://bit.ly/35JhJmL

74 Congress.gov, “PN1512 — Richard E. Zuckerman — Department of

Justice.” Retrieved Aug. 5, 2020, from https://bit.ly/3icspiY

75 Partnership for Public Service and Boston Consulting Group, “Best

Places to Work in the Federal Government: Tax Division,” 2019. Re-

trieved from https://bit.ly/3gd9aEF

Most recent ocials

U.S. Department of Justice

Assistant attorney general, Tax Division

Pres. Name Start End

Obama Kathryn Keneally April 2012 June 2014

Tamara W. Ashford

(acting)

June 2014 Dec. 2014

Caroline D.

Ciraolo* (acting)

Jan. 2015 Jan. 2017

Trump David Hubbert

(acting)

Jan. 2017 Nov. 2017

Richard Zuckerman

(acting)**

Dec. 2017 Current

*Principal deputy Caroline Ciraolo ﬁlled the role in an acting capacity

from Feb. 2015 through July 2016 when her role expired under the

Federal Vacancies Reform Act. From that point, she headed the Tax

Division as principal deputy assistant attorney general.

**Zuckerman has been the head of the Tax Division even though he is

listed on the website as the principal deputy assistant attorney general.

Zuckerman was formally nominated for the assistant attorney general

position in Feb. 2020.

Note: Periods of two months or less when there was no clear

temporary ocial are not listed.

18 PARTNERSHIP FOR PUBLIC SERVICE

who served in an acting capacity under Obama, said that

when she was the acting assistant attorney general, she

was not limited. “Serving in an acting capacity doesn’t

mean you can’t get a tremendous amount of work done,”

Ciraolo told Bloomberg Law.

“To the extent there was

any hesitation in the acting role, it was out of respect for

the pending nominee … This did not impede our ability to

operate the division. It was simply in recognition of my

role as acting assistant AG.”

Not everyone agrees. Matt Axelrod, an ocial in the

Obama Justice Department, discussed the broad issue of

acting DOJ ocials with The Washington Post. While

those in acting roles often perform admirably, he said,

“Everyone knows they’re temporary, and that means that

they don’t have the same heft internally or externally as

the Senate-conﬁrmed heads will.”

76 Jacob Rund, “Justice’s No. 3 Slot Is Soon to Be Vacant — Once Again,”

Bloomberg Law, May 2, 2019. Retrieved from https://bit.ly/3ccxSDT

77 Matt Zapotosky, “The Justice Department lacks key leaders, and a

Republican senator is threatening to keep it that way,” The Washington

Post, Jan. 6, 2018. Retrieved from https://wapo.st/2LxoLBO

THE REPLACEMENTS 19

FACTORS THAT EXPLAIN THE

PREVALENCE OF ACTING OFFICIALS

AND VACANCIES

the nomination of Raymond David Vela to be the director

of the National Park Service, nominations are returned

to the president with no clear reason other than they

did not make the list of top Senate priorities as a session

comes to an end.

In recent months, Senate activity has been further

challenged by the COVID-19 pandemic. Some of the Sen-

ate’s business has been conducted remotely and only a

few hearing rooms — large enough to accommodate so-

cial distancing — are available for committee business

meetings. The Senate is known for being a deliberative

body, but the new issues raised by current health con-

cerns will add to the diculties in managing the Senate

calendar for the foreseeable future.

Even nominees who are uncontroversial, well-qual-

iﬁed and widely supported may endure a long road to

conﬁrmation. Because rules and procedures govern how

and when the Senate considers nominations, the major-

ity leader spends the chamber’s limited time on the po-

sitions that matter most, while nominees for other po-

sitions wait. Coupled with the rigorous, expensive and

time-consuming process of resolving ﬁnancial conﬂicts

of interest, submitting to a background investigation and

answering hundreds of policy questions, some talented

people decide that the price of public service is too high.

2. Senate polarization

Political polarization, characterized by ongoing stale-

mates on a wide range of issues, is by many measures the

highest it has been in decades. The average Senate conﬁr-

mation process for presidential appointments took more

than twice as long during Trump’s ﬁrst three years (115

days) as it did during President Reagan’s time in oce

(56.4 days).

One of the major reasons the average conﬁrmation

time has grown is the increased use of Senate ﬁlibus-

ters to delay nominations. Cloture votes, the Senate’s

procedural motion used to limit debate and overcome

ﬁlibusters, have increased dramatically as a result of the

increased use or threatened use of the ﬁlibuster. During

79 Partnership for Public Service, “Senate Conﬁrmation Process Slows

to a Crawl,” January 2020. Retrieved from https://bit.ly/3b2vEFS

It is often dicult to pinpoint speciﬁc causes for indi-

vidual positions, but there are several contributing fac-

tors. President Trump’s choices and processes are major

causes, for example, but they are far from the only rea-

sons that so many vacancies and temporary ocials in

politically appointed jobs persist across the government.

The following major factors have contributed to va-

cancies during the Trump administration and, in some

instances, prior administrations.

1. Senate rules

The Senate bears partial responsibility for the large num-

ber of unﬁlled positions. While the Senate can move

quickly with unanimous consent, the complexity of Sen-

ate rules and procedures can allow even one senator to

slow the pace of nominations even if a nominee faces

minimal opposition. With the COVID-19 pandemic, the

Senate faces further obstacles that have slowed down the

process.

The delay for many nominees is complicated by the

Senate requirement that nominations not conﬁrmed or

rejected at the end of a session, or when the Senate ad-

journs or recesses for more than 30 days, are automati-

cally returned to the president.

The president must

resubmit those individuals for nominees to get another

chance for Senate conﬁrmation.

Because of the limited Senate schedule and other

priorities, many nominations are returned to the presi-

dent accordingly, especially at the end of the calendar

year and always at the end of a Congress. At the end of the

115th Congress in January 2019, about 300 civilian nomi-

nations were returned to Trump while about 85 were

returned in January 2020. In some instances, the same

people are renominated the following year. But others are

not resubmitted and lose their chance at conﬁrmation.

In practice, Senate leaders usually agree on certain

priority conﬁrmations as the end of the year approaches.

Yet the Senate does not necessarily have the time or in-

terest to vote on all nominees. In some instances, such as

78 Congressional Research Service, “Senate Consideration of Presi-

dential Nominations: Committee and Floor Procedure,” RL31980, April

11, 2017. Retrieved from https://bit.ly/2Q8bxye

20 PARTNERSHIP FOR PUBLIC SERVICE

the ﬁrst terms of Presidents Clinton, George W. Bush and

Obama combined, there were only about 30 cloture votes

on judicial and executive nominees. However, there were

approximately 150 cloture votes on judicial and executive

nominees in the ﬁrst two years of Obama’s second term.

And in Trump’s ﬁrst two years in oce, the Senate also

held about 150 cloture votes on such nominees.

In April 2019, the Senate changed the rules related to

cloture and cut debate for lower-level nominees from 30

hours to two hours in an attempt to speed up the conﬁr-

mation process.

The change, referred to as the “nuclear

option” since it changed longstanding Senate procedures,

was adopted mostly along party lines with all but two Re-

publicans in favor and all Democrats opposed.

3. Too many Senate-conﬁrmed positions

Congress reduced the overall number of Senate-con-

ﬁrmed positions by about 160 with the passage of the

Presidential Appointment Eciency and Streamlining

Act of 2011.

However, there are still more than 4,000

presidential appointments to make, with over 1,200 re-

quiring Senate conﬁrmation. The small size of the Oce

of Presidential Personnel,

the limited number of legisla-

tive days available in the Senate, partisan delays and the

process itself make it impossible for a new president to

nominate, and the Senate to conﬁrm, a full complement

of appointees early in an administration when the conﬁr-

mation success rate is historically highest.

4. Dicult positions to ﬁll

Some jobs have been vacant for years because they are

tough to ﬁll. Many positions require a unique skill set and

the most qualiﬁed candidates may be in high demand in

other sectors. Other positions must be ﬁlled according to

a unique and lengthy process established in statute.

The director of the Indian Health Service is one

such position. Prior to the conﬁrmation of Rear Adm.

Michael D. Weahkee in April 2020, the job had not been

ﬁlled with a Senate-approved ocial since 2015. The ob-

stacles were numerous: management challenges, low pay

80 Partnership for Public Service analysis of data from Congress.gov

and Senate.gov; David B. Rivkin Jr. and John Shu, “The Senate’s Unprec-

edented Obstruction,” The Wall Street Journal, Aug. 2, 2018. Retrieved

from https://on.wsj.com/3cbuAjX; Drew DeSilver, “Trump’s nominees

have already faced a large number of cloture votes,” Pew Research Cen-

ter, June 1, 2017. Retrieved from https://pewrsr.ch/3cbU5BW

81 Kelsey Snell, “Senate Rewrites Rules to Speed Conﬁrmations for

Some Trump Nominees,” National Public Radio, April 3, 2019. Retrieved

from https://n.pr/2WtXG7I

82 “Presidential Appointment Eciency and Streamlining Act of

2011,” P.L. 112-166; James Pﬁner, “Smoothing the Peaceful Transfer

of Democratic Power,” The White House Transition Project, 2017. Re-

trieved from https://bit.ly/3loPfGg

83 Congressional Directory, “Cong. Dir. 115th — Executive Branch.”

Retrieved May 6, 2020, from https://bit.ly/2YF58Q5

84 Anne Joseph O’Connell, “Stang federal agencies: Lessons

from 1981-2016,” Brookings Institution, April 17, 2017. Retrieved from

https://brook.gs/2zlyk3R

compared with private sector jobs, a dicult selection

process and a lack of resources. Furthermore, the Indian

Health Service faced funding shortages and accusations

of hiding misconduct by physicians.

In August 2019, the

Department of Health and Human Services Oce of In-

spector General published a report stating, “IHS is at a

crossroads. The agency has had longstanding problems

providing consistent high-quality hospital care … How-

ever, to make meaningful and lasting improvements, IHS

needs to overcome underlying organizational problems

that have hampered its success.”

Finding a qualiﬁed individual to take on the chal-

lenge of improving the agency was a dicult process.

One former Trump administration ocial said HHS con-

tacted nearly a dozen executives who had overhauled

large private hospital systems, but none was willing to be

considered.

The process was further complicated when

the previous nominee, Robert Weaver, withdrew his

nomination after reports surfaced alleging that he had

exaggerated his work experience.

5. Recruitment

The opportunity to serve as a presidential appointee is,

for many, a career highlight — but it requires personal

commitment and sacriﬁce.

When the honor of an ap-

pointment collides with the reality of the process, some

prospective nominees think twice before moving for-

ward. In many instances, people can earn higher pay in

the private sector for a similar job they would have in the

federal government. The time and costs associated with

going through the vetting and conﬁrmation process can

be extensive — nominees may wait months with no guar-

antee of conﬁrmation, and those with complicated ﬁnan-

cial holdings often spend tens of thousands of dollars on

accounting and legal help completing their paperwork.

And for some high-proﬁle roles, the Senate conﬁrmation

process has become a risk to their reputation as senators

use them as weapons in political warfare.

“The conﬁrmation process must be thorough enough

for the Senate to fulﬁll its constitutional duty, but it should

not be so onerous as to deter qualiﬁed people from public

85 Anna Wilde Mathews and Christopher Weaver, “Six CEOs and No

Operating Room: The Impossible Job of Fixing the Indian Health Ser-

vice,” Frontline, Dec. 10, 2019. Retrieved from https://to.pbs.org/3hBBsui

86 U.S. Department of Health and Human Services Oce of Inspec-

tor General, “Organizational Challenges to Improving Quality of Care

in Indian Health Service Hospitals,” August 2019. Retrieved from

https://bit.ly/3hJ1f3V

87 Anna Wilde Mathews and Christopher Weaver, “Six CEOs and No

Operating Room: The Impossible Job of Fixing the Indian Health Ser-

vice,” Frontline, Dec. 10, 2019. Retrieved from https://to.pbs.org/3hBBsui

88 Dan Frosch and Christopher Weaver, “Trump’s Nominee for In-

dian Health Post Withdraws,” The Wall Street Journal, Feb. 22, 2018.

Retrieved from https://on.wsj.com/2YInjmq

89 Partnership for Public Service, “Ready to Serve.” Retrieved from

https://bit.ly/3aWkmV

THE REPLACEMENTS 21

service,” said Sen. Susan Collins, R-Maine, during a 2011

Senate hearing on streamlining the nominations process.

“We drag some unsuspecting citizen through this

gauntlet of investigations and questioning,” added Sen.

Lamar Alexander, R-Tenn., later that year. “They are very

fortunate if they get all the way through without being

made to appear a criminal.”

6. Presidential preference

President Trump has declared his preference for using

“acting” ocials. In 2019, he told reporters, “I like acting.

It gives me more ﬂexibility.”

This approach circumvents

the Senate’s advice-and-consent role, enabling the presi-

dent to appoint, reassign or remove people from speciﬁc

roles without congressional approval. At times, presidents

place individuals in an acting role to serve as an audition to

see whether they are worthy of an ocial nomination. All

presidents have found it necessary to use acting ocials in

certain situations, but the Trump administration has made

a conscious choice to use acting ocials far more often.

Leaving a position vacant is one strategy for mitigat-

ing the highly politicized conﬁrmation process. With so

many executive branch nominations to ﬁll and the slow

pace of the nomination process, an administration may

forgo nominating people for some positions in order to

focus valuable yet limited Senate ﬂoor time on other

priorities. In the case of the Trump administration, this

has included judicial nominations, which have generally

been prioritized over executive branch nominees.

7. Reﬂection of policy priorities

In some cases, such as the special envoy for North Korean

human rights, the preference for the White House is to

leave a position unﬁlled altogether. Congress may create

a new position in statute, but it has limited recourse if a

president does not nominate anyone to ﬁll it.

Each presidential administration proposes to elimi-

nate, create or consolidate federal agencies or oces. This

may reﬂect an eort to reduce duplication, improve e-

ciency or emphasize a policy priority. Positions or agen-

cies that are low priority for presidents or proposed for

elimination are unlikely to see a nominee. For example,

the Trump administration has not ﬁlled the Justice De-

partment’s director of the Community Relations Service

in large part due to the administration’s desired policy to

90 “Opening Statement of Senator Collins.” Hearing on “Eliminating

the Bottlenecks: Streamlining the Nominations Process,” Senate Com-

mittee on Homeland Security and Governmental Aairs, March 2, 2011.

Retrieved from https://bit.ly/33luyoj

91 Carl Hulse, “Lawmakers Seek to Unclog Road to Conﬁrmation,” The

New York Times, April 24, 2011. Retrieved from https://nyti.ms/2Wzzz7v

92 Amanda Becker, “Trump says acting Cabinet members give him ‘more

ﬂexibility,’” Reuters, Jan. 6, 2019. Retrieved from https://reut.rs/2VyaoAY

93 Cori Petersen and CJ Szaﬁr, “Trump Is Remaking the Federal Judi-

ciary at a Historic Rate,” RealClearPolitics, Jan. 4, 2020. Retrieved from

https://bit.ly/31vFSNe

consolidate it with other oces within the Department of

Justice. This reﬂects an administration’s goals and govern-

ing philosophy. By choosing not to ﬁll a position, an admin-

istration can essentially limit the capacity of the entity to

function or send a message about its priorities.

8. Sequencing

Some vacancies may endure because higher proﬁle,

more important vacancies — including at the head of the

agency or department — have yet to be ﬁlled. For exam-

ple, the Department of Homeland Security is unlikely to

put forth a nominee for deputy secretary when there is

also a vacancy in the secretary position. Typically, admin-

istrations aord agency leaders an opportunity to partici-

pate in selecting their deputies.

9. Lack of proper vetting and preparation for

candidates

Nominations can fail for many dierent reasons, and the

problem is exacerbated when appointees do not under-

stand the process and potential pitfalls. Nominees must

ﬁll out extensive paperwork, disclose their ﬁnances and

deal with press attention while navigating interactions

with Senate committees and outside interests. Many ap-

pointees — especially those who are not familiar with

the inner workings of the federal government — do not

have the knowledge or resources to do so successfully.

Mistakes, omissions or delays in paperwork — even when

unintentional — can delay and even derail a nomination.

Most administrations do preliminary vetting on

prospective nominees before they are formally nomi-

nated, and also work with the nominees to ensure that

they are prepared for a public service position that may

require them to divest from ﬁnancial holdings to avoid

the appearance of a conﬂict. The Trump administration

learned this lesson the hard way, as some of the presi-

dent’s earliest nominations were announced via Twitter

without much of the advance work that would lead to a

smoother process. Vincent Viola, for example, was nomi-

nated for secretary of the Army on Inauguration Day, but

reluctantly withdrew from consideration in early Febru-

ary when it became clear that he could not disentangle

himself from his business interests.

When nominees withdraw from consideration, it

delays ﬁlling important jobs. This issue has been more

pronounced under Trump than the previous presidents.

By April 2019, slightly more than two years into his term,

Trump had withdrawn 40 announced or forwarded nom-

inations for Senate-conﬁrmed positions, 74% more than

either Presidents Obama or George W. Bush.

94 Susanne Craig, “Vincent Viola, Nominee for Army Secretary, Drops Out,”

The New York Times, Feb. 3, 2017. Retrieved from https://nyti.ms/3f4nbUr

95 Heather Ba and Terry Sullivan, “Why does it take so long to con-

ﬁrm Trump’s appointments?” The Washington Post, April 24, 2019. Re-

trieved from https://wapo.st/39YKbmG

22 PARTNERSHIP FOR PUBLIC SERVICE

RECOMMENDATIONS

role — setting aside partisan solidarity with the sitting

president to preserve the institutional role of the Senate.

That eort resulted in the Federal Vacancies Reform Act,

the law that governs how a president may temporarily ﬁll

a position subject to Senate conﬁrmation.

Congress should again update the law to address am-

biguities that have arisen since the last update. For ex-

ample, Congress could:

• Clarify that the vacancies law applies when an o-

cial is ﬁred.

• Prevent agency schemes to reshue succession

orders to circumvent law’s rules.

• Require that an acting inspector general be selected

from within the IG community to preserve IG inde-

pendence.

• Prohibit ocials from being “dual-hatted” in Senate-

conﬁrmed positions — in other words, from per-

forming the duties of two or more Senate-conﬁrmed

positions at once.

• Mandate timely reporting on vacancies and acting

ocials.

• Pass legislation to allow an individual to serve as an

acting ocial while being the nominee for the same

position. This would overturn the Supreme Court’s

2017 decision on the vacancies law, which generally

prohibits an individual from simultaneously being an

acting ocial and the nominee for the position.

The

2017 decision reversed bipartisan interpretation of

the law since its passage, limits the pool of potential

acting ocials and can cause unnecessary turnover in

a position. For example, when nominated as secre-

tary of defense in 2019, Mark Esper, who was serving

as acting secretary at the time, had to be replaced as

acting secretary while his nomination was pending

as a result of the Supreme Court decision — causing

unnecessary turnover in the department’s leadership.

• Conduct a bipartisan, bicameral eort to review and

update the vacancies law and relevant statutes to

ensure that the constitutional role of the Senate is

preserved. One eort of note is legislation introduced

in May 2020 by Rep. Katie Porter, D-Calif., which

would address many of the reforms discussed here.

98 NLRB v. SW General, Inc., 137 S. Ct. 929, 2017.

99 “Accountability for Acting Ocials Act,” H.R. 6689, 116th Congress,

2020.

Appointees to Senate-conﬁrmed positions ﬁll big, com-

plicated and consequential jobs. Our nation’s founders

envisioned a system by which the president and the Sen-

ate would work cooperatively to ensure that the Ameri-

can people are served by capable and qualiﬁed appoin-

tees, but that system is badly broken. How can Congress

and the executive branch decrease the reliance on tem-

porary ocials in important leadership positions?

1. The Senate must reassert its constitutional

authority to advise and consent on executive branch

nominations.

Article II, Section 2 of the United States Constitution

states that the president “shall nominate, and by and with

the Advice and Consent of the Senate, shall appoint Am-

bassadors, other public Ministers and Consuls, Judges of

the supreme Court, and all other Ocers of the United

States, whose Appointments are not herein otherwise pro-

vided for, and which shall be established by Law.” In other

words, ﬁlling senior appointments in the executive branch

is a responsibility shared by the president and Senate. The

Senate’s advice-and-consent role is a fundamental compo-

nent of the founders’ vision of a system of checks and bal-

ances, a system so successful that the Constitution is the

world’s longest surviving written charter of government.

The Senate should guard this responsibility closely.

Senators of both parties should defend the Senate’s

prerogatives and object vociferously when a president

skirts its advice-and-consent authorities.

And, as it

has in the past, Congress should update the laws under

which executive branch ocials temporarily may fulﬁll

the duties of the oces subject to Senate conﬁrmation.

In 1998, Senate Democrats joined Republicans to

take issue with what they saw as President Clinton’s at-

tempts to circumvent the Senate’s advice-and-consent

96 United States Senate, “Constitution of the United States.” Retrieved

from https://bit.ly/2YEvDo5

97 The House of Representatives can be an important ally as well. For

example, in 2018, the House Ways and Means Subcommittee on So-

cial Security held a hearing to examine the impact of over ﬁve years

of acting leadership at the Social Security Administration. (Hearing on

“Lacking a Leader: Challenges Facing the SSA After Over Five Years of

Acting Commissioners,” House Committee on Ways and Means, March

7, 2018.) In November 2019, two House committee chairs requested that

the Government Accountability Oce examine the legality of acting

ocials at the Department of Homeland Security. (U.S. Government

Accountability Oce, “Department of Homeland Security—Legality of

Service of Acting Secretary of Homeland Security and Service of Senior

Ocial Performing the Duties of Deputy Secretary of Homeland Secu-

rity,” Aug. 14, 2020.)

THE REPLACEMENTS 23

2. Congress should require more transparency into

vacant positions subject to advice and consent.

The Federal Vacancies Reform Act requires agencies to

report to Congress and the Government Accountability

Oce on vacancies in Senate-conﬁrmed positions and

the names of acting ocials.

100

Compliance with this

reporting requirement is sluggish and spotty. As noted

above, Congress could update the vacancies law to re-

quire real-time reporting of vacancies and acting ocials.

Another way Congress should improve transparency

into appointments would be to pass legislation to create a

real-time, online “Plum Book,” which is the government’s

publication of federal political appointees and top career

positions in the civil service. Under current practice, the

Plum Book is updated only every four years through a

data call to agencies by the Oce of Personnel Manage-

ment. The publication, therefore, provides only a snap-

shot in time that is out of date by the time it is made pub-

lic (through publication traditionally done by Congress).

An online resource, updated regularly and easily

searchable, would bring increased transparency and ac-

countability to the federal government and let the Ameri-

can people know who is making decisions that aect

them as a political appointee or a senior career ocial.

It also would provide valuable information to individuals

interested in serving in a political appointment. Congress

should also insist on more timely reporting of the identity

of acting ocials. Bills that would achieve these goals are

pending in both the Senate and the House.

101

3. The Senate should reduce the number of

presidential appointments subject to Senate

conﬁrmation and should revisit the “privileged

nominations” process.

More than 1,200 executive branch positions require con-

ﬁrmation — more than the Senate can consider during

the roughly 190 days it is in session each year. Executive

branch nominees compete with judicial nominees, leg-

100 “Reporting of Vacancies,” 5 U.S.C. 3349.

101 On July 22, 2020, the Senate Committee on Homeland Security

and Governmental Aairs favorably reported S. 3896, Periodically List-

ing Updates to Management Act of 2020 or the PLUM Act of 2020. As

originally introduced, the bill (sponsored by Sen. Tom Carper, D-Del.)

would have required agencies to update information on positions at

least monthly. During the committee business meeting, though, the

committee adopted an amendment reducing the frequency of the re-

porting requirement by requiring an update at least every two years, not

monthly. In the House of Representatives, Rep. Carolyn Maloney, D-

N.Y., has introduced a bill, H.R. 7107, whose text is identical to S. 3896 as

originally introduced and contains the monthly reporting requirement.

islative priorities and other business for scarce Senate

committee and ﬂoor time. In 2011, Congress reduced the

number of positions that require Senate conﬁrmation,

but has since created new ones.

102

Congress and the presi-

dent should revisit which positions should be subject to

Senate conﬁrmation, with the same bipartisan coopera-

tion that resulted in the 2011 reduction.

On a separate track in 2011, the Senate also created

the executive calendar, which includes “privileged nomi-

nations” for some positions that typically are not con-

troversial, allowing a nominee to bypass committee con-

sideration unless any senator objects. While helpful in

speeding conﬁrmation for some nominees, the privileged

nominations process still leaves many nominees waiting

behind higher-priority nominees — such as nominated

judges — before consideration by the full Senate.

4. The executive and legislative branches should

invest the time, resources and processes necessary

to support the nomination and conﬁrmation of well-

qualiﬁed nominees.

A president should maintain a well-functioning Oce of

Presidential Personnel to build a talent pipeline and pre-

pare nominees for public service. Nominees should submit

timely, accurate and complete paperwork to the Senate to

minimize the delay caused by revisions. Personnel should

also be a top priority for presidential transition teams,

which should identify and select well-qualiﬁed candidates

for the most important Senate-conﬁrmed positions before

the presidential election. Selecting nominees early, ensuring

they are fully vetted and educating them on the conﬁrma-

tion process will increase the likelihood that a president’s

nominees are conﬁrmed with bipartisan Senate support.

Congress and the incumbent administration should

ensure that agencies responsible for selecting, vetting

and processing nominees are prepared for a surge in

nominations in the ﬁrst and ﬁfth years of a presidency.

The House Committee on Appropriations passed legisla-

tion in July 2020 in support of additional resources for

the Oce of Government Ethics and the Oce of Presi-

dential Personnel to process a high number of nominees

during the transition to a ﬁrst or second term. The Senate

should follow suit.

103

102 Congressional Research Service, “Presidential Appointee Positions

Requiring Senate Conﬁrmation and Committees Handling Nomina-

tions,” RL30959, May 2017. Retrieved from https://bit.ly/32rk5pf

103 “Financial Services and General Government Appropria-

tions Bill, 2021,” H.R. 7768, 116th Congress, 2020. Retrieved from

https://bit.ly/3165HCj

24 PARTNERSHIP FOR PUBLIC SERVICE

CONCLUSION

The use of acting ocials to ﬁll vacant Senate-conﬁrmed

positions is not a new phenomenon. The Trump admin-

istration, though, has taken an unconventional approach

to stang and used more acting ocials than previous

administrations. While Trump’s preference for acting of-

ﬁcials and the rate of turnover in his administration are

important factors behind many vacancies and temporary

ocials, these factors alone do not tell the whole story.

Many other issues contribute, including the conﬁrmation

process, the Senate’s use of nominations as a negotiation

tool and policy preferences. Some jobs have not been

ﬁlled for multiple presidencies, while other vacancies

may have little impact on the functioning of the govern-

ment.

Our government works best when it has a full team of

capable and committed individuals serving in career po-

sitions and political appointments. A long-term reliance

on temporary ocials without Senate conﬁrmation may

hinder long-term planning, erode employee morale and

reduce accountability. A presidential administration and

Congress share responsibility for ﬁlling critical roles, but

the current process is fraught with challenges. More can

and should be done to ensure that the American people

are well-served by a fully staed and fully accountable

government — and to reassert the Senate’s constitutional

authority to provide advice and consent on senior gov-

ernment appointments.

THE REPLACEMENTS 25

METHODOLOGY

The Partnership for Public Service conducted interviews

with many public ocials, Senate sta and domain ex-

perts throughout 2019 and 2020 to complete this report.

Information about stang, appointments and vacancies

is current as of Aug. 17, 2020, unless otherwise noted.

To ﬁnd up-to-date information, refer to the data-

base maintained by the Partnership and The Washington

Post. The database tracks more than 700 key positions

and shows the number of appointees conﬁrmed by the

Senate, the progress of candidates as they go through the

nomination and conﬁrmation process, and the jobs for

which there is a vacancy and no nominee. The appointee

database is located at wapo.st/2JUQPi2

PROJECT TEAM

PARTNERSHIP FOR PUBLIC SERVICE

Bob Cohen

Senior Writer and Editor

Christina Condreay

Research Associate

Troy Cribb

Director of Policy

Samantha Donaldson

Vice President, Communications

Paul Hitlin

Senior Research Manager

Tim Markatos

Associate Design Manager

Audrey Pfund

Senior Design and Web Manager

Monica Scigliano

Government Aairs Associate

Kristine Simmons

Vice President, Government Aairs

BROOKINGS INSTITUTION

Kathryn Dunn Tenpas, PhD

Senior Fellow, Miller Center, UVA

Nonresident Senior Fellow, The Brookings Institution

Additional thanks to the following Partnership sta for

their contributions: Jaqlyn Aldrete, Dan Blair, Katie Bryan,

Shannon Carroll, Drew Flanagan, Diane Hill, John Kelley,

David Marchick, Loren DeJonge Schulman, Kayla Shana-

han, Tina Sung and Alexander Tippett.

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