Hundreds of “Acting” Government Officials Just Lost Their Decision-Making Authority

Hundreds of “Acting” Government Officials Just Lost Their Decision-Making Authority
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President Trump likes to excoriate Senate Democrats for holding up the process by which he’s filling the 612 executive-branch positions that require confirmation. Yet even if the upper chamber’s minority party has been able to muck up the works for the White House’s nominees, the other big reason parts of the federal government can seem so skeletal right now is that Trump simply hasn’t put forward names for hundreds of crucial jobs. While those positions, with portfolios ranging from nuclear-security to trade policy to ambassadorships in potential conflict regions, have been filled by career public employees serving in acting capacities, many of them hit a critical deadline this week when Trump hit 300 days in office.

On Wednesday, dozens—if not more—public servants in acting positions lost the authority they wield in those roles, in compliance with an obscure federal law meant to speed up the process by which a president staffs up his government. As a result, decision-making responsibilities assigned to senior government positions for which Trump has not submitted a nominee will have to be deferred elsewhere. That’s because the 1998 Federal Vacancies Reform Act, stipulates that if a president in the first year of his term hasn’t put forward a name to fill an empty Senate-confirmed job, the “acting” official in that job loses his or her legal authority to enact policy after 300 days.

Of the 612 Senate-confirmed positions being tracked by the Partnership for Public Service, the nonprofit organization that helps new administrations with recruitment and staffing, there are 186 confirmed appointees and another 170 with outstanding nominations. But the White House hasn’t so much as floated names for the other 256. That figure includes high-visibility jobs like director of the National Park Service and ambassador to South Korea, as well as obscure—but vital—roles like deputy administrator for defense programs at the National Nuclear Security Administration, a position tasked with securing the United States’s nuclear arsenal.

The functions carried out by these 256 positions didn’t vanish overnight; instead the more pressing issue is that after the 300-day mark, actions taken by the career staffers filling these jobs in an acting role can be easily challenged in court. “It’s not like there’s going to be a dramatic change for the American people in how government operates or how they receive services,” says Kristine Simmons, the Partnership’s vice president for government affairs. “But it does mean that for those people who are in a career position and are now having to perform the duties of a particular role, this affects how comfortable they feel in making decisions.”

So while national parks aren’t suddenly closed and the country’s nukes are still accounted for, the decision-making authority related to those programs gets kicked up the bureaucratic flowchart until Trump nominates someone. In the case of the deputy administrator for nuclear security, that agency is still led by Frank Klotz, who was appointed by President Barack Obama and confirmed by the Senate in 2014. But acting NPS Director Mike Reynolds, for instance, has lost his policy-making power to his Senate-confirmed supervisor, Interior Secretary Ryan Zinke, according to the rules laid out by the Vacancies Act.

In fairness to Trump, it takes any White House a long time to completely staff up. No cabinet-level agency currently has all of its Senate-confirmed officials in place; only four—the relatively small Central Intelligence Agency, Small Business Administration, US Trade Representative, and Office of Management and Budget even have 100 percent of their positions nominated. Still, he lags well behind his predecessors: by their 300-day marks, Obama made 562 nominations, George W. Bush made 669, and Bill Clinton made 517.

But even though the Vacancies Act is meant to give presidents an incentive to pick up the pace with nominations, Simmons points out it doesn’t address the wisdom—or lack thereof—of a government in which so many high-ranking functions are left to the political-appointment process. Other democracies, particularly those with parliamentary systems like the United Kingdom or Canada, put career civil servants in charge of agencies, with overtly political jobs limited to groups of special advisers hired by the government in power.

There are thousands of political appointments in our government, far more than you would find in other governments similar to ours,” she says.

Trump has said, though, that there are positions his administration might never fill. “I’m generally not going to make a lot of the appointments that would normally be—because you don’t need them,” he told Forbes last month. “I mean, you look at some of these agencies, how massive they are, and it’s totally unnecessary.”

The President’s dismissive attitude toward the role of government might fly in the face of Simmons’s organization, which tries to promote public service. But Trump might have made a backdoor path to a similar logical conclusion. I think it’s good to reevaluate which positions should be subject to Senate confirmation,” Simmons says.

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Staff Writer

Benjamin Freed joined Washingtonian in August 2013 and covers politics, business, and media. He was previously the editor of DCist and has also written for Washington City Paper, the New York Times, the New Republic, Slate, and BuzzFeed. He lives in Adams Morgan.