This article was authored by Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law at Stanford University.
This article first appeared in the Regulatory Review's series on "Seeking to Improve Administrative Transparency and Expertise" that focuses on the ACUS Recommendations adopted at the December 2019 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.
Many lawyers, scholars, and members of the public presume that Senate-confirmed presidential appointees run federal agencies. According to the latest “Plum Book,” a quadrennial listing of important positions in the federal government, over 1,200 jobs in the federal bureaucracy currently require presidential nomination and subsequent confirmation by the Senate.
There are, however, a vast number of vacancies in these positions—particularly under this Administration but also in previous ones.
According to a political appointee tracker, the U.S. Department of Homeland Security (DHS), for example, currently has only 35 percent of tracked positions filled and no pending nominations for any of the vacant jobs.
Take a look at the current leadership of DHS. Of the top six positions—Secretary, Deputy Secretary, and four undersecretaries—only one, Under Secretary for the Office of Strategy, Policy, and Plans, is technically filled by a presidential appointee whom the Senate has confirmed for the specific position he holds, Chad F. Wolf. But Wolf is now serving as acting Secretary pursuant to DHS legislation governing top-level vacancies.
Of the remaining four top jobs, only one position—Under Secretary for the Office of Intelligence and Analysis—has an “acting” official under the Vacancies Act because the previous confirmed official recently departed. In the remaining three positions, which have been vacant longer, the Vacancies Act is not available, and responsibilities have been delegated downward to non-confirmed officials: “senior officials performing the duties of” the vacant positions.
DHS is fortunate that it can rely on the Vacancies Act, agency-specific succession provisions, and delegations of authority, so that it can carry out its functions. But other agencies are not as lucky. The Federal Election Commission and the U.S. Merit Systems Protection Board, for example, currently lack not only quorums but also the authority to use acting leaders or to delegate critical agency functions to unconfirmed officials.
Vast vacancies in Senate-confirmed agency positions throughout the federal bureaucracy raise serious concerns about agencies’ ability to meet their public missions. To address these concerns, in 2018 and 2019, I had the privilege of serving as the lead consultant for the Administrative Conference of the United States (ACUS) project on “Acting Agency Officials and Delegations of Authority.” This project tried to achieve two primary goals.
First, the report provided new information on the scope of acting officials in cabinet departments and some single-headed executive agencies across recent administrations. The report also collectedexamples of delegations of authority in the face of vacancies and included a comprehensive list of agency-specific statutory succession provisions.
The report created a snapshot of the staffing status of 321 Senate-confirmed positions in the fifteen cabinet departments and two other executive agencies—the U.S. Environmental Protection Agencyand the Office of Management and Budget—as of April 2019. From this snapshot early in President Donald J. Trump’s third year, confirmed officials sat in only 65 percent of these positions, leaving about 35 percent of positions formally unoccupied. Acting leaders, however, staffed only about a third of these vacant positions, about 13 percent overall. The remaining 22 percent of all the examined Senate-confirmed positions sat empty because the Vacancies Act’s time limits had run out. Presumably, the nonexclusive functions and duties of these unoccupied positions were delegated downward to other officials.
This snapshot shows that both acting leaders and senior officials operating under delegations of authority play critical roles in agencies.
Second, the report described agency practices concerning acting officials and delegated authority. This account drew on surveys and interviews of key agency personnel, interviews of former acting officials, and public materials such as agency websites and U.S. Government Accountability Office(GAO) reports.
Sadly, no agency is a model for others. Two executive agencies claimed that the Vacancies Act does not apply to them because of their agency-specific succession provisions—claims that conflict with Office of Legal Counsel’s opinions that should bind these agencies.
Some agencies do not have a system, beyond handwritten notes, for tracking the time permitted for acting service under the Vacancies Act, which can be confusing as the limits often turn on pending and returned nominations. Although many agencies included in the study for ACUS, such as DHS, list acting officials on their websites, some do not. Almost no agency examined for the study publicly posts the delegations of authority that operate in the face of vacancies, although some do disclose the individuals carrying out delegated functions.
Agencies’ reports to the GAO on vacancies and acting officials, which are required by the Vacancies Act, are often delayed and sometimes missing entirely. For example, from among the 17 agencies whose vacancies were captured in the ACUS report’s staffing snapshot, only two had average reporting delays under 100 days. Six agencies took more than 300 days on average to notify the GAO of a vacancy.
The ACUS project did not address legal questions surrounding acting officials and delegations of authority or suggest legislative reforms. I have explored both of these issues elsewhere.
To address some of the concerns above, ACUS formally approved recommendations in December 2019 urging agencies to increase compliance with the Vacancies Act and agency-specific statutes, and also to foster greater transparency about acting officials and delegations of authority.
According to the ACUS recommendations, agencies subject to the Vacancies Act should implement procedures, if they have not already done so, to comply with the Act and consider assigning responsibility for compliance to a particular, publicly-identified position. Furthermore, because the Vacancies Act is complex, ACUS also recommends that the government provides regular training about the Vacancies Act’s mandates for all those who serve in these assigned positions. ACUS notes that training should cover how to keep track of time limits under the Act.
The Vacancies Act allows for three categories of acting officials to step in and fill a vacant position temporarily: the first assistant to the vacant position; another Senate-confirmed official in the same agency as the vacancy or in a different agency; and a sufficiently senior official in the agency who has served at least 90 days in the year prior to the vacancy. The first assistant is the default acting leader, whereas the President would have to pick someone from the second two groups to serve. ACUS recommends that agencies should publicly name the first assistant to every position covered by the Vacancies Act. No matter which category acting leaders are drawn from, agencies should ensure these officials know the Act’s requirements.
In addition, ACUS advises agencies to post on their websites the names of acting officials and others carrying out delegated functions of vacant positions, as well as acting leaders’ start dates and the legal provision under which they are serving. A companion ACUS project, “Public Identification of Agency Officials,” examined the availability of current information about high-level officials and resulted in a similar recommendation—agencies should consistently display information about officials on their websites.
Making this information available online can alleviate confusion and promote transparency. For example, for months in 2019 commentators assumed that Kevin McAleenan was serving as acting DHS Secretary under the Vacancies Act. DHS, however, had changed its succession order to permit him to serve under its agency-specific succession provision instead, which, unlike the Vacancies Act, does not have time limits.
All agencies—whether covered by the Vacancies Act or not—should consider publicly posting succession plans for all of their Senate-confirmed positions. Agencies should also figure out which functions, if any, are exclusive to the Senate-confirmed jobs, and which nonexclusive functions should be delegated in the face of staffing vacancies. Agencies should then make these delegations of authority publicly available to the extent possible.
Finally, some agencies have complained that the GAO’s reporting system does not allow them to submit required information online. To decrease reporting lags and absences, ACUS urges the GAO to consider changing its reporting system so that agencies can report information online for vacancies, acting officials, and nominations.
These recommendations, if followed, promote accountability and transparency. Specifically, given the complexity of the Vacancies Act, these recommendations will help improve agency compliance with the Act. In addition, in light of vast vacancies in Senate-confirmed agency positions, these recommendations will help the public become better informed about who runs their government.