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Home , Bush Six, David Bernhardt, David Shulkin, Noel Francisco, Robert Wilkie, Ryan Zinke

Workshop Participants: I have been working on a book, Stand-Ins, on the causes and consequences of temporary leadership in government, business, and religion, which is aimed at a more general audience. Given recent events, I have returned to more traditional scholarship to explore some of the issues involving temporary leadership (and the lack thereof) in federal agencies, among other topics. This paper is brand new, incomplete, and unpolished. Given its length, I would recommend reading the Introduction (pp.1-5), Scope of Actings (pp.13-27), and Statutory Questions (pp.33-42). I look forward to your reactions and suggestions for improvement. AJO

Actings Anne Joseph O’Connell Stanford Law School April 1, 2019

Please do not cite or distribute beyond the workshop without permission.

I. Introduction Stand-in leaders do not usually command much attention. They step up in moments of need to keep organizations running. The stereotypical interim leader is therefore a caretaker—in place to maintain stability; not to implement major changes. But not all interim leaders are caretakers. Some are auditioning for the permanent job. And a few are there to shake up the organization—so-called “fixers”. The scope of temporary leadership is vast—after all, traditional leaders are transitory, and selection procedures for more permanent leaders take time. On the public side, there are interim leaders in all branches of the federal government. In Congress, there are appointed senators, chosen by their state’s governor to fill in for an elected senator who has died or resigned, perhaps in disgrace or perhaps to take a different job. Since 2000, governors have appointed twenty-five people under the Seventeenth Amendment to serve in the U.S. Senate until a special election can take place.1 For example, after President Trump’s first pick for Attorney General, , was confirmed by the Senate in February 2017, he had to resign his position as a senator from Alabama. The governor of Alabama then appointed another Alabama politician, Luther Strange III, to fill Sessions’ seat until the 2018 special election.2 These gubernatorial interim picks usually have a leg up in the special election. Of the twenty-three special elections (and associated primaries) that occurred between 2000 and now, fourteen of the appointed senators ran.3 Only two, including Strange, lost.4 In the judiciary, there have been acting chief justices during ill health and after the death of confirmed leaders of the Supreme Court. And as far as the executive branch is concerned, the Twenty- Fifth Amendment permits acting presidents. The most common interim leaders in the executive branch, though, are the many acting officials serving in executive agencies and departments under the Federal Vacancies Reform Act of 1998 (1998 Vacancies Act). For example, before Sessions was confirmed, there had been two acting attorney generals under President Trump. At the start of his administration, President Obama’s deputy attorney general Sally Yates stayed on as acting attorney general, intending to remain until Sessions was confirmed by the U.S. Senate.5 President Trump, however, fired Yates before then after she refused to defend his executive order barring people from certain Muslim-majority countries from entering the .6 He then picked U.S. Attorney Dana Boente, another Obama appointee, to step in, who remained until Sessions was sworn in as Attorney General.7

1 See Appointed Senators, U.S. SENATE, https://www.senate.gov/artandhistory/history/common/briefing/senators_appointed.htm (last visited Mar. 30, 2019). 2 Id. 3 Id. Roy Moore defeated Strange in the primary; eventually defeated Moore in the special election. Jessica Taylor, An Upset in Trump Country: Democrat Doug Jones Bests Roy Moore in Alabama, NPR (Dec. 12, 2017), https://www.npr.org/2017/12/12/570291123/will-it-be-moore-or-jones-polls-are-closed-in-divisive-alabama-senate- election. 4 See U.S. SENATE, supra note __. 5 Matt Zapotosky, Sari Horwitz & Mark Berman, Trump Has Fired the Acting Attorney General who Ordered Justice Dept. Not To Defend President’s Travel Ban, WASH. POST (Jan. 30, 2017), https://www.washingtonpost.com/world/national-security/acting- attorney-general-an-obama-administration-holdover-wont-defend-trump-immigration-order/2017/01/30/a9846f02-e727- 11e6-b82f-687d6e6a3e7c_story.html?utm_term=.c5dc50a64d8e. 6 Id. 7 Id. 1

At the state and local level, there are temporary governors, mayors, and agency heads. We also see emergency managers or czars, and special masters on all levels of government, who head up particular issue areas or responses to specific unexpected events. This paper examines temporary leaders in federal agencies—known colloquially as “actings.” These actings have been making the news lately. Last November, President Trump pressed former Attorney General Sessions to step down. The President had long been angry that Sessions had recused himself from the decision to appoint a special counsel to investigate Russian interference in the 2016 election. For that task, confirmed deputy attorney general Rod Rosenstein served as the acting attorney general. But when Sessions resigned, President Trump was not going to let Rosenstein serve as the acting attorney general for all matters. Instead, he turned to the 1998 Vacancies Act and named Matthew Whitaker, Sessions’ Chief of Staff, which is not a Senate-confirmed position, as acting attorney general. Likely because of the attention on the Mueller investigation, the 1998 Vacancies Act suddenly was thrown into the national spotlight. Could there be an acting attorney general who was not Senate- confirmed? The 1998 Vacancies Act permits it—under certain conditions—but some argued that the Act did not apply in light of the Attorney General Succession Act and that, even if the 1998 Vacancies Act did apply, it was unconstitutional for the very top positions of the modern administrative state. Interestingly, Whitaker was not unique in his appointment: Acting cabinet secretaries have been drawn from non-Senate-confirmed ranks at least 15 times since the start of President Reagan’s administration in 1981. Controversies over President Trump’s acting officials are not restricted to the Justice Department. About a year before Whitaker’s selection, Richard Cordray resigned his position as the first confirmed director of the Consumer Financial Protection Bureau (CFPB). Right before he left, he named Leandra English as the agency’s deputy director.8 Under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the deputy director is to serve as the acting director of the bureau if the director is absent or unavailable.9 A few hours later, the White House designated , who is the confirmed director of the Office of Management and Budget, as the acting director of the CFPB under the 1998 Vacancies Act.10 Both English and Mulvaney turned up to work at the CFPB (Mulvaney even brought donuts for the staff), each claiming to be the acting director.11 English filed suit, but eventually dropped the litigation.12

8 Tara Siegel Bernard, Dueling Appointments Lead to Clash at Consumer Protection Bureau, N.Y. TIMES (Nov. 24, 2017), https://www.nytimes.com/2017/11/24/us/politics/consumer-financial-protection-bureau-cordray-leader-trump- mulvaney.html. 9 12 U.S.C § 5491(b)(5)(B) (2017). 10 Bernard, supra note __. 11 Katie Rogers, 2 Bosses Show Up To Lead the Consumer Financial Protection Bureau, N.Y. TIMES (Nov. 27, 2017), https://www.nytimes.com/2017/11/27/us/politics/cfpb-leandra-english-mulvaney.html. Kathleen Kraninger was confirmed as the CFPB’s second director on December 6, 2018, a few days before President Trump selected Mulvaney as acting chief of staff. See Monica Akhtar, Trump Names Budget Director Mick Mulvaney as Acting White House Chief of Staff, WASH. POST (Dec. 14, 2018), https://wapo.st/2rDVJqa?tid=ss_tw&utm_term=.2c1236a957d4. I discuss the legal dispute in Part V.B.2, infra. 12 Renae Merle, CFPB Official Drops Fight for Leadership of Watchdog Agency, WASH. POST (July 6, 2018), https://www.washingtonpost.com/news/business/wp/2018/07/06/cfpb-official-drops-fight-for-leadership-of-watchdog- agency/?utm_term=.a0d77c3dac4b. Kathleen Kraninger was confirmed as the CFPB’s second director on December 6, 2018, a few days before President Trump selected Mulvaney as acting chief of staff. See Monica Akhtar, Trump Names Budget 2

A few months later, President Trump fired , Secretary of the Department of Veterans Affairs, naming , a Senate-confirmed assistant secretary in the Department of Defense, as acting secretary under the 1998 Vacancies Act.13 Veterans sued, claiming the Act does not apply to vacancies created by firing.14 That suit was voluntarily dismissed.15 President Trump seemed to like what he saw of Wilkie and nominated him for the permanent job. Under the Act, though, Wilkie was required to step down from his acting role while his nomination was pending.16 Peter O’Rourke, a political staff person who, like Whitaker, had not been confirmed to any position, took over as acting secretary. The Senate eventually confirmed Wilkie as Secretary of Veterans Affairs. More recently, Secretary of Defense James Mattis resigned in protest over the President’s foreign policy decisions. In announcing his resignation, Mattis promised to stay at the job until the end of February—“a date that should allow sufficient time for a successor to be nominated and confirmed as well as to make sure the Department’s interests are properly articulated and protected at upcoming events to include Congressional posture hearings and the NATO Defense Ministerial meeting in February.”17 But President Trump, upset by Mattis’s “stinging rebuke” in his widely distributed resignation letter, pushed him out earlier.18 Under the Defense Department’s succession act, Deputy Secretary Patrick Shanahan, a former Boeing executive with no prior government or military experience, became the acting secretary.19 It was the first time the Department of Defense had an acting defense secretary for more than a day since the start of President George H.W. Bush’s administration when the Senate voted down John Towers’ nomination.20 Interestingly, Wilkie is apparently campaigning for the defense job, which if he is successful, would lead to a third acting veterans secretary.21

Director Mick Mulvaney as Acting White House Chief of Staff, WASH. POST (Dec. 14, 2018), https://wapo.st/2rDVJqa?tid=ss_tw&utm_term=.2c1236a957d4. 13 Andrew Restuccia, Did Shulkin Get Fired or Resign? This is Why it Matters, (March 31, 2018), https://www.politico.com/story/2018/03/31/did-shulkin-get-fired-or-resign-veterans-492877. 14 Complaint, Hamel v. Department of Veterans Affairs, No. 18-1005 (D.D.C. Apr. 30, 2018); Nicole Ogrysko, Facing a Lawsuit, VA Now a New Victim of Vacancy Act’s Ambiguous Language, FED. NEWS NETWORK (May 1, 2018), https://federalnewsnetwork.com/veterans-affairs/2018/05/facing-a-lawsuit-va-now-a-new-victim-of-vacancy-acts- ambiguous-language/. 15 Stipulation of Dismissal, Hamel v. Department of Veterans Affairs, No. 18-1005 (D.D.C. Aug. 1, 2018). 16 Lisa Rein & Paul Sonne, Trump to Nominate Acting Veterans Affairs Secretary Robert Wilkie to be the Agency’s Permanent Leader, WASH. POST (May 18, 2018), https://www.washingtonpost.com/news/post-politics/wp/2018/05/18/trump-announces- he-will-nominate-acting-veterans-affairs-secretary-robert-wilkie-to-become-departments-permanent- leader/?utm_term=.ba0ae40f6c0a. 17 Read ’s Letter to Trump: Full Text, N.Y. TIMES (Dec. 20, 2018), https://www.nytimes.com/2018/12/20/us/politics/letter-jim-mattis-trump.html?module=inline. 18 Helene Cooper & Katie Rogers, Trump, Angry over Mattis’s Rebuke, Removes Him 2 Months Early, N.Y. TIMES (Dec. 23, 2018), https://www.nytimes.com/2018/12/23/us/politics/trump-mattis.html. 19 10 U.S.C. § 132(b) (2017); Dan Lamothe, Patrick Shanahan, Trump’s Pick for Acting Defense Secretary, Steps into Spotlight after Mattis’s Ouster, WASH. POST (Dec. 23, 2018), https://www.washingtonpost.com/national-security/2018/12/23/patrick- shanahan-trumps-pick-acting-defense-secretary-steps-into-spotlight-after-mattiss-ouster/?utm_term=.c83b2a8f83bf. David Nordquist, who is the confirmed comptroller of the agency is “performing the Duties of the Deputy Secretary of Defense.” Meet the Team, DEP’T OF DEF., https://www.defense.gov/Our-Story/Meet-the-Team/ (last visited March 27, 2019). 20 Bush Selects Taft as Ambassador to NATO, N.Y. TIMES, Mar. 26, 1989, at 10; Andrew Rosenthal, Pentagon Decisions Await a Leader: Debate over Tower Stalls Work on the Budget, N.Y. TIMES, Feb. 14, 1989, at A20. 21 Lisa Rein, Seung Min Kim & Josh Dawsey, VA Chief Robert Wilkie has Pushed To Be the Next Pentagon Chief, WASH. POST (March 13, 2019), https://www.washingtonpost.com/politics/va-chief-robert-wilkie-has-pushed-to-be-the-next-pentagon- chief/2019/03/12/6f2aedee-3ac8-11e9-a06c-3ec8ed509d15_story.html?utm_term=.95733d9ebc45. In light of the new Inspector General investigation into the acting secretary’s ties to his former employer, Boeing, Wilkie’s odds have improved. See Charles S. Clark, Pentagon Watchdog Launches Probe of Acting Defense Chief’s Boeing Ties, GOV’T EXEC. (March 21, 2019), 3

In addition to chiding the Senate for moving slowly in confirming his nominees, President Trump has expressed deep affection for his acting leaders. He started office relying on “my generals.” He now calls part of his cabinet “my actings.” As he explained to reporters: “I have ‘acting’ [sic]. And my ‘actings’ are doing really great. David [Bernhardt] is doing great at Interior. Mick Mulvaney is doing great as [White House] chief of staff. . . . I sort of like ‘acting.’ It gives me more flexibility. Do you understand that? I like ‘acting’. . . So we have a few that are acting. . . . If you look at my Cabinet, we have a fantastic Cabinet. Really good.”22 In some sense, he said what had been previously unspoken: that modern presidents rely heavily on acting officials. President Obama, for example, submitted far fewer agency nominations in his final two years than other recent two-term presidents.23 Nonetheless, the current extent of acting officials under the Trump Administration is unprecedented. Given the prevalence of acting officials in modern presidential administrations, it is necessary to take a comprehensive look at these acting officials and the infrastructure through which they serve. To that end, this paper has several goals. First, descriptively, in Part II it explains the intricacies of the 1998 Vacancies Act and how that Act interacts with both agency-specific succession statutes and internal agency delegation. More critically, in Part III, it provides much needed empirical grounding of acting officials in federal agencies. These officials and delegations of authority seem to run federal agencies at least 20% of the time, on average. The use of acting officials at the highest levels has increased under this administration.24 At one point recently, there were interim leaders of the Departments of Defense, Interior, and Justice as well as the Environmental Protection Agency, and an acting Ambassador to the United Nations. All but Justice and the EPA still have acting officials at the helm. Second, normatively, in Part IV the paper takes on the conventional concern, to which I have previously contributed, about acting officials: that acting leaders function as “substitute teachers,” unable to set important priorities for the agency, or worse, as “work arounds” to political accountability manifested in the Senate confirmation process. In some contexts, though, acting officials provide needed expertise and stability. This paper tries to flesh out both the attractions and costs of interim leadership in the administrative state. Third, legally, the paper considers a host of constitutional and statutory questions about temporary agency leadership in Part V. There are remarkably few cases addressing interim agency leaders. There are open constitutional questions about who can serve in the highest positions (i.e., principal offices) and for how long, as well as about the scope of delegations of authority to lower level agency officials. The former issue has received some scholarly attention, the latter has obtained very little. There are undecided statutory issues about how the 1998 Vacancies Act interacts with agency- specific statutes such as the Attorney General Succession Act and Dodd-Frank’s provisions regarding

https://www.govexec.com/defense/2019/03/pentagon-watchdog-launches-probe-acting-defense-chiefs-boeing- ties/155729/. 22 John T. Bennett, Frustrated by ‘my generals,’ Trump Turns to ‘my actings’, ROLL CALL (Jan. 14. 2019), https://www.rollcall.com/news/whitehouse/frustrated-generals-trump-turns-actings. Early in his administration, President Trump claimed that “in many cases, we don’t want to fill [Senate-confirmed] jobs.” Cody Derespina, Trump: No Plans to Fill ‘[U]nnecessary’ Appointed Positions, FOX NEWS (Feb. 28, 2017), https://www.foxnews.com/politics/trump-no-plans-to-fill- unnecessary-appointed-positions. 23 ANNE JOSEPH O’CONNELL, BROOKINGS INSTITUTION, STAFFING FEDERAL AGENCIES: LESSONS FROM 1981-2016 (2017). 24 Andrew Restuccia, Makeup of Cabinet is Creating More Hurdles for Trump, POLITICO (Jan. 3, 2019), https://www.politico.com/story/2019/01/03/trump-cabinet-democrats-1080817. 4 the CFPB, whether the current 1998 Vacancies Act covers firings, and how statutory mandates on the selection and removal of confirmed officials apply, if at all, to acting leaders. Finally, looking forward, in Part VI the paper tries to address some of the problems with interim leaders in federal agencies discussed in Parts IV and V by proposing politically-feasible reforms to our current system. These reforms target, among other issues, the permissible types and tenure of acting officials, the interaction of other relevant agency statutes, and the scope and transparency of delegated authority in the absence of acting officials. Part VII concludes by calling on administrative law to pay attention not only to agency procedures but also to agency staffing, including temporary officials. One preliminary definitional issue seems in order. Confirmed agency leaders, by nature of presidential elections and, for some, term limits, are temporary. These “in-and-outers”, as Hugh Heclo called them,25 serve, on average, only two-and-a-half years.26 Recess appointees too are temporary, limited by the length of congressional sessions. I distinguish acting agency leaders from both confirmed and recess appointees. Some of it is formalistic. The former have the “acting” title; the latter do not. More importantly, acting leaders have not gone through the traditional appointments process as delineated in the Constitution. I do take up some of their similarities below. At the end of the day, we have to think about actings and traditional appointees together. By largely ignoring the former in thinking about the latter, we may have missed the forest for the trees. Specifically, so many—commission after commission, scholar after scholar (me included)—have called for Congress to reduce the number of Senate-confirmed positions. Practically, by their prevalence, presidents’ use of acting officials has done just that. II. Basics of Vacancies Act Before providing an empirical portrait of acting officials, it is critical to understand the primary components of the 1998 Vacancies Act. This Act is not the first legislative attempt to provide mechanisms for interim agency leadership.27 The first statute dates back to the Founding Era. In 1792, Congress allowed “any person or persons” to fill top jobs at the Departments of State, Treasury, and War until permanent officeholders returned to service or new ones were appointed.28 Three years later, Congress imposed a six-month time limit on these acting officials.29 In the 1860s (specifically, in 1863 and 1868) Congress increased the number of positions the president could staff in a temporary capacity.30 In doing so, Congress restricted acting officials to the first assistant to the vacant position or another Senate-confirmed position, and limited service in most instances to only ten days.31 Interim tenure was extended to thirty days in 1890.32 As described by the Supreme Court, “[d]uring the 1970s and 1980s, interbranch conflict arose over the [then-current] Vacancies Act.”33 Presidents were pushing for more authority to name interim

25 HUGH HECLO, A GOVERNMENT OF STRANGERS: EXECUTIVE POLITICS IN WASHINGTON (1977). 26 Matthew Dull & Patrick S. Roberts, Continuity, Competence, and the Succession of Senate-Confirmed Agency Appointees, 1989-2009, 39 PRESIDENTIAL STUDIES Q. 432, 436 (2009). 27 See NLRB v. SW General, Inc., 137 S. Ct. 929, 935-36 (2017) (recounting history of legislation). 28 Act of May 8, 1792, ch. 37, § 8, 1 Stat. 281. 29 Act of Feb. 13, 1795, ch. 21, 1 Stat. 415. 30 Act of July 23, 1868, ch. 227, 15 Stat. 168; see also Act of Feb. 20, 1863, ch. 45, 12 Stat. 656. 31 Act of July 23, 1868, ch. 227, 15 Stat. 168. 32 Act of Feb. 6, 1891, ch. 113, 26 Stat. 733. 33 SW General, 137 S. Ct. at 935. 5 leaders; Congress for less. The Department of Justice claimed, in contrast to the Comptroller General, that the agency’s head “had independent authority apart from the Vacancies Act to temporarily fill vacant offices.”34 In 1988, Congress sided with the Comptroller General and extended the time limit to 120 days plus the time while a nomination was pending.35 But the conflict did not abate. According to the Congressional Research Service, by the late 1990s, “approximately 20 percent of PAS offices in executive agencies were occupied by ‘temporary designees, most of whom had served beyond the 120– day limitation period. . . without presidential submissions of nominations.’”36 In 1998, in light of massive noncompliance with the 1988 statute, Congress returned to vacancies and passed the Federal Vacancies Reform Act (the 1998 Vacancies Act), which governs temporary leadership in federal agencies today. In this Part, I describe the major components of the Act: which agencies are covered, the types of permissible acting officials, the time limits for acting service, consequences of violations and oversight of agency compliance, delegated authority as a substitute for acting officials, and the interaction with specific agency succession statutes.37 A. Coverage of 1998 Vacancies Act The Act does not cover all 1,242 (by last count) Senate-confirmed positions.38 Rather, it generally permits acting officials to step into only those positions in cabinet departments and agencies that are not led by multi-member leadership teams (such as the EPA).39 In addition to multi-member leadership teams in independent regulatory commissions and boards, government corporations and independent establishments (such as the Postal Service), Article I courts, and the GAO, which is directed by a single Comptroller General, are excluded from the Act.40 The Act does cover, in part, a few Senate-confirmed positions (outside of the main leadership team) in independent regulatory commissions and boards, such as the General Counsel of the National Labor Relations Board and the Federal Labor Relations Authority.41 The 1998 Vacancies Act thus covers all cabinet secretaries, deputy secretaries, undersecretaries, and assistant secretaries (the latter if Senate-confirmed), along with general counsels, inspectors general, chief financial officers, and other Senate-confirmed positions in federal agencies. But by excluding government corporations and members of “any board [or] commission,” the Act leaves many governmental entities without access to temporary leadership. The Merit Systems Protection Board, which adjudicates disciplinary actions against federal employees, has been without a quorum since

34 Id. 35 Id. at 936. 36 Id. (internal citation omitted). 37 I draw much of the discussion below from VALERIE C. BRANNON, CONG. RES. SERV. REPORT R44997, THE VACANCIES ACT: A LEGAL OVERVIEW (2018) and Jen Kirby, A Top Official at the Justice Department Is Resigning. The Federal Vacancies Act Has a Solution for that, VOX (Feb. 9, 2018), https://www.vox.com/2018/1/30/16924764/trump-government-appointees- vacancies-act (an interview with me on the Act). 38 S. COMM. ON SEC. & GOVERNMENTAL AFFAIRS, 114TH CONG., POLICY AND SUPPORTING POSITIONS app. 1, at 216 (Comm. Print 2016) (quadrennial report commonly referred to as the “Plum Book”). 39 5 U.S.C. §§ 3345(a), 3349c (2017). 40 Id. 41 See 5 U.S.C. §§ 3348(e), 3349c (2017). 6

January 2017.42 At present, it has zero members.43 The United States Postal Service’s Board of Governors has had no quorum since December 2014.44 In the MSPB’s case, much work has stopped. The Postal Service has delegated authority to a Temporary Emergency Committee.45 B. Permitted Types of Acting Officials For covered positions under the 1998 Vacancies Act, the “first assistant” to the vacant job is the default acting official.46 For example, if there is no confirmed or recess-appointed secretary of commerce, the confirmed or recess-appointed deputy secretary of commerce, as the first assistant, becomes the acting secretary of commerce, by default. Interestingly, the Act does not define the “first assistant.”47 Congress has defined the first assistant for certain positions in other statutes, and agencies generally have filled in the rest by regulation.48 The Act provides two alternatives to the “first assistant” for acting service, but the president must actively select them. First, “the President (and only the President) may direct” another Senate- confirmed official—within the agency or outside it—to serve as the acting leader.49 Acting officials drawn from this category are typically serving in the same agency (for instance, the agency’s general counsel). But there are notable exceptions, such as Mick Mulvaney and Robert Wilkie discussed in the Introduction.50 Second, “the President (and only the President) may direct “an officer or employee” who has not been Senate-confirmed to take over a position in an acting capacity, but only if that person has worked in the agency for at least 90 days during the year-long period before the vacancy and is paid at the GS-15 level or higher.51 At the start of administrations, when there are few first assistants and confirmed officials, presidents turn to this category for temporary leaders. For instance, Adam Szubin, a careerist who headed the Office of Foreign Assets Control at the Treasury Department, served as acting treasury secretary in the early months of President Trump’s administration before the Senate confirmed Steve Mnuchin.52 But this category is not restricted to early months of a new president’s

42 Eric Katz, Federal Employee Appeals Board Can No Longer Decide Appeals, GOV’T EXEC. (Jan. 5, 2017), https://www.govexec.com/management/2017/01/federal-employees-appeals-board-can-no-longer-decide- appeals/134377/. 43 Chase Gunter, MSPB Set To Enter Unprecedented Territory with No Members, FCW (Feb. 28. 2019), https://fcw.com/articles/2019/02/28/mspb-uncharted-territory-gunter.aspx. 44 Eric Katz, Congress Fails to Confirm Postal Nominees, but USPS Says It’s Found a Workaround, GOV’T EXEC. (Dec. 18, 2014), https://www.govexec.com/oversight/2014/12/congress-fails-confirm-postal-nominees-usps-says-its-found- workaround/101652/. From December 2016 to August 2018, there were no Senate-confirmed members of the Board. David Thornton, Postal Service’s Future Uncertain with Empty Board of Governors, FED. NEWS NETWORK (Dec. 15, 2016), https://federalnewsnetwork.com/postal-service-and-its-future-december-2016/2016/12/postal-services-future-uncertain- empty-board-governors/; Robert M. Duncan, USPS, https://about.usps.com/who/leadership/board-governors/robert- duncan.htm (last visited Mar. 31, 2019). 45 See infra notes __- __ & accompanying text. 46 5 U.S.C. § 3345(a)(1) (2017). 47 See Brannon, supra note __, at 9 n.74 (detailing caselaw, legislative history, and DOJ guidance on the term). 48 Id. at 9-10 n.75. 49 5 U.S.C. § 3345(a)(2) (2017). 50 See supra notes __-__ & accompanying text. 51 5 U.S.C. § 3345(a)(3) (2017). 52 Fred Lucas, Trump’s Acting Treasury Secretary, an Obama Holdover, Helped Craft Iran Nuclear Deal, DAILY SIGNAL (Feb. 9, 2017), https://www.dailysignal.com/2017/02/09/trumps-acting-treasury-secretary-helped-craft-iran-nuclear-deal/. 7 term: Nearly two years into the Trump Administration, Matthew Whitaker served as acting attorney general under this path.53 There is another small category of permitted acting officials: Someone who is serving a fixed term (such as the head of the Federal Housing Finance Agency) may continue in that position after the term expires in an acting capacity if the president has nominated her to an additional term.54 Because this final category affects very few positions, this paper focuses on the three main categories—first assistants, Senate-confirmed officials, and senior agency staffers. Formal nominations to fill vacant positions critically limit who can serve in an acting capacity while those nominations are pending. Generally, nominees “may not serve as an acting officer” for the position to which they have been nominated.55 For instance, Robert Wilkie had to step down as acting secretary of the Veterans Administration while his nomination was pending.56 There are a few exceptions: The nominee can also serve as the acting official if she was confirmed as the first assistant or has been the first assistant for at least 90 days.57 For example, Andrew Wheeler kept serving as acting EPA administrator while his nomination was pending because he had been confirmed as the agency’s deputy administrator, and continued as acting CIA director when her nomination was pending as she had been the deputy director, an unconfirmed position, for over a year when resigned to become secretary of state. Sometimes, it can be complicated to figure out eligibility.58 C. Limits on Acting Service Tenure Determining the time limits on service for actings under the 1998 Vacancies Act could generate challenging word problems for a math class. If there is no pending nomination, acting officials generally can serve for only 210 days from the creation of the vacancy.59 But if the vacancy exists when a new president takes office or comes into being in the subsequent 60 days of the president taking office, acting officials get 300 days from inauguration or the later vacancy, respectively.60 Nominations further lengthen the permitted service of temporary leaders. Acting officials may serve during the pendency of two nominations to the vacant position, no matter how long the nominations last. If the Senate confirms a nomination, there is no more need for an acting official. But if the nomination fails—because it is voted down, returned to the White House, or withdrawn by the

53 See supra notes __-__ & accompanying text. 54 5 U.S.C. § 3345(c)(1) (2017). 55 5 U.S.C. § 3345(b) (2017). 56 See supra notes __-__ & accompanying text. 57 SW General, Inc., 137 S.Ct. at 929. Prior to the Court’s 2017 ruling, the Department of Justice’s had ruled that the restrictive conditions on nominees applied only to first assistants and that other Senate-confirmed officials and senior agency workers could serve both as the nominee and the acting official. See OFFICE OF LEGAL COUNSEL, GUIDANCE ON APPLICATION OF FEDERAL VACANCIES REFORM ACT OF 1998, (1999), at 64 (Question 15), available at https://www.justice.gov/file/19551/download. The Court rejected this view in SW General. 58 See, e.g., Tal Kopan, Trump Nominates New ICE Director, CNN (Aug. 6, 2018) (“When Vitiello was named acting director [of ICE], his career position with the department was also transferred from Customs and Border Protection to ICE, making him the top career official at ICE. That transfer allows him to remain in the position of acting director legally even while nominated.”); Tal Kopan, Controversial ICE Chief Retiring, Replacement Named, CNN (June 30, 2018) (noting that “since Vitiello comes from a different agency, it’s likely that federal law would prevent him from serving in the role in an acting capacity while also nominated to the Senate for the permanent position”). 59 5 U.S.C. § 3346(a)(1) (2017). 60 5 U.S.C. § 3349a(b) (2017). 8 nominee or president—a new 210-day period of permissible acting service runs from the date of the failure. This new 210-day period applies to two failed nominations. Thus, it is possible for an acting official to serve for 210 (or 300) days before there is a nomination, during a first nomination, for 210 days after that nomination fails, during a second nomination, and for a final 210 days if the second nomination fails as well.61 These time limits reset for each new president. From early 2006 (when Congress began to require Senate confirmation) to July 2013, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, for example, had no confirmed or recess-appointed leader.62 The first failed nomination was pending from March 22, 2007 until January 2, 2009,63 permitting President George W. Bush to staff the job, once it became Senate-confirmed, with an acting official for the rest of his administration. Under President Obama, the 300-day period kicked in at the start. Then, after the 300-day limit had run, there was no acting official until the first pending nomination was submitted on November 17, 2010. 64 The Senate returned that nomination on December 22, 2011.65 A second pending nomination for the same person, submitted well before the end of the first 210-day period following the first failed nomination, ran from January 5, 2011 to January 3, 2013, when the Senate also returned it.66 A third nomination (now for a different person) was confirmed on July 31, 2013, just within the final 210-period for acting service. In short, the time limits under the 1998 Vacancies Act are significantly longer than those permitted under earlier statutes. D. Compliance and Oversight In designing the 1998 Vacancies Act, Congress was frustrated with acting officials serving past established deadlines in earlier statutes.67 While the current Act does not provide a direct way to remove a non-compliant acting official,68 it does provide that almost all actions by an acting official improperly serving will have “no force of effect.”69 In some sense, the current version of the Act offered something to the White House—longer time limits—and to Congress—harsh penalties once they expired. But the Act itself has no enforcement mechanism. Rather injured parties must sue to get

61 See Brannon, supra note __, at 9 fig. 2. If the 210 (or 300)-day limit with no nominations runs out, and the president later submits a nomination, there can be no acting official in between. But as soon as the nomination is pending, there can be an acting leader (the same person as before or a new one). Id. at 13 n.105. The time limits do not apply when the vacancy has been “caused by sickness.” 5 U.S.C. § 3346(a)(2017). 62 Sari Horwitz, Senate confirms ATF director, WASH. POST (July 13, 2013), http://wapo.st/1cpQigC?tid=ss_tw&utm_term=.482750acee6f. 63 PN381 (110th Cong.), Michael J. Sullivan, https://www.congress.gov/nomination/110th-congress/381. 64 PN2296 (111th Cong.), Andrew L. Taver, https://www.congress.gov/nomination/111th-congress/2296. 65 Id. 66 PN44 (112th Cong.), Andrew L. Taver, https://www.congress.gov/nomination/112th-congress/44. 67 See supra note __. 68 See Brannon, supra note __, at 19-20. 69 5 U.S.C. § 3348(d)(1) (2017). It is unclear what would happen to actions by anyone acting improperly as the General Counsel of the NLRB or FLRA, as an IG, or as a CFO. Id. § 3348(e); see also SW General, Inc. v. NLRB, 796 F.3d 67, 79 (D.C. Cir. 2015) (assuming, because parties agreed, that the actions of the acting general counsel of the NLRB would be voidable but leaving open that the actions may be “wholly insulate[d]”). The Supreme Court did not decide this issue. SW General, Inc., 137 S.Ct. at 938 n.2. 9 actions struck down.70 According to the Congressional Research Service, as of July 2018, there had been only fifteen such cases under the 1998 Vacancies Act.71 The Government Accountability Office (GAO) is tasked with notifying the relevant congressional committees if it finds violations of the Act’s time limits.72 Congress does at times follow up with oversight hearings.73 For example, in March 2018, the Subcommittee on Social Security of the House Committee on Ways and Means listened to experts from the GAO, the Congressional Research Service, and non-profit organizations on leadership challenges at the Social Security Administration (SSA).74 The GAO had issued a letter the day before that the acting commissioner of the SSA, Nancy Berryhill, had been serving months past the end of the 300-day period in November 2017.75 The Act does require that agencies report vacancies, acting officials, and nominations to the GAO.76 But agencies do not fully comply.77 Many do report vacancies (but often not those of shorter durations). Fewer report the relevant acting official. Even fewer provide the start and end dates of acting service (the GAO’s form includes the end date, though the Act does not mandate its reporting). In addition, agencies do not consistently provide nomination dates and nomination failure dates. These deficiencies in agency reporting make it difficult for the GAO to track vacancies and determine violations of the 1998 Vacancies Act. E. Delegated Authority as a Substitute for Acting Officials For all the detail given to permissible types of acting officials, the tenure of such officials, and the severe consequences (if one can get into court) of violations, the 1998 Vacancies Act provides an easy workaround in many cases—delegate the tasks of the vacant office. After the March 2018 hearing on the SSA, Berryhill stepped down as “acting commissioner.” She, however, continued to do what she was doing before, but without the acting title. As deputy commissioner, she could exercise all the functions of the commissioner through delegation.78 Not all tasks can be delegated. The Act prevents delegation “downward” of functions and duties that are established by statute or regulation to be performed by “the applicable officer (and only that officer).” These functions and duties are known as “non-delegable functions or duties.”79 For those functions and duties assigned to lower-level officials, the Act does permit “the head” of the agency to perform them, except for a small set of more independent positions such as IGs.80 Agencies can change

70 See S. REP. NO. 105-250, at 19-20 (1998) (“The Committee expects that litigants with standing to challenge purported agency actions taken in violation of these provisions will raise non-compliance with this legislation in a judicial proceeding challenging the lawfulness of the agency action.”). 71 Brannon, supra note __, at 21 n.182. 72 5 U.S.C. § 3349(b) (2017). 73 See Brannon, supra note __, at 20. 74 On Lacking Leadership: Challenges Facing the SSA After Over 5 Years of Acting Commissioners Before the Subcomm. on Social Security of the H. Comm. on Ways and Means, 115th Cong. (2018); see also Brannon, supra note __, at 20. 75 Brannon, supra note __, at 20. 76 5 U.S.C. § 3349(a) (2017). 77 See Part VII.A.4, infra. 78 Brannon, supra note __, at 20. 79 S. REP. NO. 105-250, at 18 (1998). 80 5 U.S.C. §§ 3348 (b)(2), (e). 10 their regulations about non-delegable tasks, but there is a 180-day look-back period from the date of any vacancy (so any regulation in effect in that period would make a function or duty non-delegable).81 Here is one example of a non-delegable function. The secretaries of treasury, labor, and commerce make up the board of directors for the Pension Benefit Guaranty Corporation.82 Acting secretaries have the full power of the secretaries and thus sit on the board. But if the time limits run out, as they did for the acting secretary of commerce in President Obama’s administration, the board duties (particularly the establishment of a quorum) of the secretary of commerce could not be delegated to someone else in one of the relevant agencies.83 But there appear to be few such non-delegable functions and duties. The SSA’s statute, for example, provides that “[t]he Commissioner may assign duties, and delegate, or authorize successive redelegations of, authority to act and to render decisions, to such officers and employees of the Administration as the Commissioner may find necessary.”84 Further, the GAO determined that the principal deputy assistant attorney general could carry out all the functions and duties of the assistant attorney general for the Office of Legal Counsel because it found that “no duties” could be carried out only by the assistant attorney general.85 In its guidance on the 1998 Vacancies Act, OLC explained: Congress understood that there would be occasions when the time limits would expire or when there would, for a period, be no one qualified to serve in an acting capacity. Congress also understood that if everything the PAS officer may have done in the performance of his or her duties had to be performed by the head of the Executive agency, the business of the government could be seriously impaired. See S. Rep. No. 105-250, at 30-31 (Additional Views). As a result, Congress delimited which functions could be performed only by a qualified acting officer or the head of the Executive agency, defining them as only those functions or duties assigned exclusively to the PAS officer by statute or regulation. Most, and in many cases all, the responsibilities performed by a PAS officer will not be exclusive, and the Act permits non-exclusive responsibilities to be delegated to other appropriate officers and employees in the agency.86 After the first confirmed director of ATF stepped down in April 2015, the career deputy, Thomas Brandon, stepped up as acting director.87 After the 210-day clock ran out, Brandon continued to perform the duties of the director but without the acting title. As Brandon explained, “If they don’t nominate anybody and I revert back to just the deputy director, but I’m still the CEO, I will give the taxpayers what I’ve always given them: a hard day’s work.”88 Interestingly, with Republicans in control of the Senate, President Obama strategically chose not to nominate someone to the job. Because of the

81 See OLC, supra note __, at 71 (Question 44). 82 29 U.S.C. § 1302(d)(1) (2017). 83 Id. § 1302(d)(3). 84 42 U.S.C. § 902(a)(7) (2017). 85 See Brannon, supra note __, at 18. 86 OLC, supra note __, at 72 (Question 48). 87 Sarah Wheaton, White House to demote ATF chief — to keep him on the job, POLITICO (Oct. 8, 2015), https://www.politico.com/story/2015/10/atf-thomas-brandon-acting-head-demotion-214542. 88 Id. 11 delegability of the agency’s functions and duties, the administration could continue to press its policies on gun violence and “avoid a nasty confirmation hearing for a troubled agency.”89 In short, for rare non-delegable functions, the agency can generally “delegate up” to the head. And for all the delegable duties, the agency can “delegate down,” at least under the 1998 Vacancies Act. There may be constitutional issues, which I take up in Part V. In the first year of an administration, one sees a lot of “acting” titles on agency titles. After the Act’s time limits run out, one sees “performing the functions of a particular vacant office” language instead. F. Interactions with Agency-Specific Succession Statutes The 1998 Vacancies Act is generally intended to be the “exclusive means for temporarily authorizing an acting official to perform the functions and duties of any [covered] office . . . .”90 The Act provides two exceptions: statutes that “expressly” provide for some alternative and recess appointments.91 There are many agency-specific succession statutes. Under the Attorney General Succession Act, for example, “[i]n case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.” Whether such statutes “expressly” supersede the Vacancies Act is a much harder question, and one addressed in more detail in Part V. Briefly here, the statute provides that the Deputy Attorney General “may” take on the functions of the Attorney General. It also references the Vacancies Act, making the Deputy Attorney General the first assistant for that statute. To be fair, the agency-specific statute was drafted before the 1998 version of the Vacancies Act. To take a statute enacted after the 1998 Vacancies Act, in creating the Consumer Financial Protection Bureau, the Dodd-Frank Act specified that the deputy director “shall serve as acting Director in the absence or unavailability of the Director.”92 A federal district court held that the president could still use the Vacancies Act to select an acting director.93 The agency’s deputy director, named by the outgoing director on his last day, abandoned her appeal.94 Some statutes leave no room for debate. In creating the Department of Homeland Security, Congress specified that “[n]otwithstanding chapter 33 of title 5 [the 1998 Vacancies Act], the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary.” Here, Congress explicitly specified that the president could not use the Vacancies Act for the top two positions at DHS if there is a confirmed or recess-appointed deputy secretary or undersecretary for management. There could be other non-succession statutes that constrain the use of the 1998 Vacancies Act. At the start of President Trump’s administration, the Times reported that any acting attorney

89 Id. 90 5 U.S.C. § 3347(a) (2017). 91 Id. 92 12 U.S.C. § 5491 (2017). 93 English v. Trump, 279 F. Supp. 3d 307, 319 (D.D.C. 2018). 94 Appellant’s Motion for Voluntary Dismissal, English v. Trump, No. 18-5007 (D.C. Cir. July 9, 2018). 12 general would need to be Senate-confirmed to sign FISA warrants.95 It turns out, however, that under the relevant statutory provisions, an acting attorney general can sign the warrants; the provisions say nothing “about who may or may not be the ‘Acting Attorney General.’”96 I have not come across other such statutes. * * * The 1998 Vacancies Act is a complex statute. In the oral argument for the SW General case, where the Court narrowed who could be both a nominee and the acting official, Justice questioned the lawyer representing Southwest General. She suggested that the company should go to the press and say the agency violated the Act: “Who wouldn’t say that in that circumstance?” The lawyer responded: “Somebody who then was going to be pressed and had to explain the technicalities of why the appointment was illegal.”97 In sum, the 1998 Vacancies Act is designed as a stop-gap measure to keep our modern agencies functioning during the delays of our modern appointments system. In other work, I am exploring these stop-gap measures for other public officials—including presidents, senators, and chief justices at the federal level and governors, mayors, and agency leaders at the state and local level. III. Scope of Actings This Part turns to the scope of acting officials in federal agencies. The press, from time to time, has provided snapshots of interim leadership.98 Currently, attention is on President Trump’s professed adoration of “actings.”99 But President Obama too was judged “outside the norm” for his use of acting leaders.100 Citing departures of confirmed appointees for “higher paying gigs” and “replacements stuck in Senate limbo,” Politico in January 2016 “found dozens of crucial jobs in [President Obama’s] administration are either totally empty or run by an acting deputy.”101 More specifically, in the middle of his second term, it determined that “[m]ore than a quarter of the administration’s most senior jobs [379 positions in cabinet-level agencies], more than 100 overall, are missing permanent occupants.”102 In the Department of Education, for example, there were acting officials in ten of the top sixteen spots, including the secretary and deputy secretary.103 President George W. Bush also apparently broke from his predecessors. Paul Light, a leading scholar of agency appointments, told in October 2007 that “you’ve got more

95 Matt Apuzzo, Eric Lichtblau & Michael D. Shear, Acting Attorney General Orders Justice Dept. Not To Defend Refugee Ban, N.Y. TIMES (Jan. 30, 2017), https://www.nytimes.com/2017/01/30/us/politics/attorney-general-civil-rights-refugee.html; Jane Chong, Susan Hennessey, & Chris Mirasola, Yes, the New Acting Attorney General Can Sign FISA Applications, (Jan. 30, 2017), https://www.lawfareblog.com/yes-new-acting-attorney-general-can-sign-fisa-applications. 96 David Kris, Whitaker’s Appointment and Broader Risks at the Justice Department, LAWFARE (Nov. 17, 2018), https://www.lawfareblog.com/whitakers-appointment-and-broader-risks-justice-department. 97 Transcript of Oral Argument at 40, NLRB v. SW General, Inc. 137 S. Ct. 929 (2017) (No. 15-1251). 98 From time to time, there are stories about one agency’s leadership over time. See, e.g., Horwitz, supra note __ (discussing the Bureau of Alcohol, Tobacco, Firearms, and Explosives); Where’s the OSHA boss? 8.5 years of acting administrators, INDUSTRIAL SAFETY & HYGIENE NEWS (April 7, 2009) (focusing on the Occupational Safety and Health Administration and finding, in addition to one recess appointee, that “[s]ince the agency’s inception in 1971, it has had more acting administrators (13) than Senate-confirmed appointees (11)”). 99 See supra note __ & accompanying text. 100 Darren Samuelson, Obama’s Vanishing Administration, POLITICO, Jan. 5, 2016. 101 Id. 102 Id. 103 Id. 13 vacancies now than a hotel in hurricane season. In my 25 years of studying these issues, I’ve never seen a vacancy rate like this.”104 At that point, there were three acting cabinet secretaries (at the Departments of Agriculture, Justice and Veterans Affairs) and only one submitted nomination.105 Acting officials also staffed the next two highest positions at the Justice Department; there were interim administrators of Medicare and Medicaid and the Agency of International Development, among other programs.106 While there has been considerable research on agency appointment delays,107 few have systematically studied acting officials, despite their prevalence in the administrative state. The paucity of attention presumably derives largely from the absence of centrally collected data on interim agency leaders. The GAO recently announced what researchers have long known: “Until the names of political appointees and their position, position type, agency or department name, start and end dates are publicly available at least quarterly, it will be difficult for the public to access comprehensive and reliable information.”108 The limited work that exists has used start and end dates of confirmed officials from the Office of Personnel Management or agency-reported information to the GAO on the start of vacancies to study vacancy lengths, or has analyzed yearly snapshots of agency leaderships to focus on interim leadership. Some work on agency appointments provides upper bounds on the tenure of interim leaders. This research, however, does not target acting officials directly. Although the Office of Personnel

104 Philip Shenon, Interim Heads Increasingly Run Federal Agencies, WASH. POST, Oct. 15, 2007. 105 Id. 106 Id.; see also Spencer Hsu, Job Vacancies at DHS Said to Hurt U.S. Preparedness; A Fourth of Top Positions Not Filled, Report Says, WASH. POST, July 9, 2007, at A1 (finding “Homeland Security had 138 vacancies among its top 575 positions [clearly not all Senate-confirmed], with the greatest voids reported in its policy, legal and intelligence sections, as well as in immigration agencies, the Federal Emergency Management Agency and the Coast Guard.”). 107 O’Connell, supra note __, at 1654 nn.42-43 (collecting political science studies of agency nominations), 1655 n.45 (collecting CRS studies of nominations for particular congresses), 1681-82 nn.90-106 (collecting theoretical research; empirical work on the connection between confirmation times and presidential approval and nominations to independent agencies with “holdover capacity”; and empirical studies on the connection between nomination success/failure and early selections, presidential popularity, cabinet positions, election years, positions in agencies with ideological preferences opposing the President’s, attempts to “portray a nominee in a negative light,” media coverage, the ability to shift the ideological balance of a court, divided government, and polarization of the Senate). Since 2015, when I had last collected citations, there has been some additional work. See Heather Ba, Branson Schneider & Terry Sullivan, White House Transition Project, Presidential Leadership and Initiative in Appointments Politics (examining nominations in the first two years of the last six administrations (and first 14 months under the current administration) and considering effects of position type/location, party control, time, coordination and other factors on nomination lags); Gary E. Hollibaugh, Vacancies, Vetting, and Votes: A Unified Dynamic Model of the Appointments Process, 27 J. THEORETICAL POL. 206 (2015) (developing a theoretical model on reasons for both nomination and confirmation delay); Gary E. Hollibaugh & Lawrence S. Rothenberg, The When and Why of Nominations: Determinants of Presidential Appointments, 45 AM. POL. RES. 280 (2017) (using agency reports to the GAO on vacancies to find that “[i]deological divergence between the President and the Senate filibuster pivot tend to delay nominations but only under divided government” and that presidents are quicker to nominate “on more important positions but are also influences by the ideological leanings of the agencies”); Gary E. Hollibaugh & Lawrence S. Rothenberg, The Who, When, and Where of Executive Nominations: Integration Agency Independence and Appointee Ideology, 62 AM. J. POL. SCI. 296 (2018) (finding lower likelihood of confirmation and longer confirmation delays for more ideologically distant nominees and for positions with more decisionmaking independence); O’Connell, supra note __ [Brookings]; Anne Joseph O’Connell, Brookings Institution Report, After one year in office, Trump’s behind on staffing but making steady progress (2018); Anne Joseph O’Connell, Brookings Institution Report Trump’s staffing record in the first 100 days was slow, but not catastrophic (2017). 108 GAO, GAO-19-249, Federal Ethics Programs: Government-wide Political Appointee Data and Some Ethics Oversight Procedures at Interior and SBA Could Be Improved (2019), at 13; see also Hollibaugh & Rothenberg, supra note __, at 282 (noting that “[w]hile measuring post-nomination legislative action is not problematic, collecting data on vacancy-nomination time has been more difficult historically”). 14

Management does not track the tenures of acting officials, it does keep (and sometimes shares) records on the start and end dates of confirmed and recess appointed leaders. Using such dates for cabinet departments and free-standing executive agencies (those run by single heads) from 1977 to 2005, I found between 15 and 25 percent the time those positions did not have confirmed or recess appointed officials.109 Matthew Dull and Patrick Roberts determined vacancy rates for individual Senate- confirmed jobs at the Departments of Commerce and Health and Human Services between 1989 and 2009.110 Averaging across those positions, one sees that the agencies lacked confirmed or recess appointees more than 20 percent of the time.111 More recently, Matthew Dull, William Resh, and Patrick Roberts, using agency reports of vacancies to the GAO and other sources, constructed a database of vacancies in 416 Senate-confirmed positions in cabinet departments and single-headed agencies from January 1989 to December 2012.112 They focus on determinants of vacancies—finding that high-ranking jobs (including but not limited to agency heads) and timing early in an administration were connected with fewer vacant days but not seeing significant results for institutional conflict between the White House and the Senate.113 They report in their descriptive statistics that the positions were vacant, on average, at least 151 days during a congressional term.114 Given that congressional terms are two years, the vacancy rate is 21 percent in that period. The situation has likely only deteriorated since 2012. More nominations have failed—in other words, have been returned to the White House or withdrawn—since then.115 For nominations that have succeeded, confirmation delays have worsened.116 Evan Haglund has constructed a database of staffing and vacancies for U.S. attorney (1981- 2015) and inspector general positions (1981-2017).117 He does not provide an overall vacancy rate for either position. But he does find that the average time to nominate IGs and U.S. attorneys was 8.5 months and 8.4 months (respectively) under President Clinton, 8.8 months and 6.5 months for President George W. Bush and 18.6 months and 9.2 months under President Obama.118 It took the Senate, on average, 3.5 months and 2.3 months to confirm IGs and U.S. attorneys, respectively in Clinton’s administration, 5 months and 2 months in Bush’s administration, and 4.4 months and 3.1

109 O’Connell, supra note __, at 962, 965 (finding by one measure using the average vacancy period (by the year when the previous official departed) and the average tenure period (by the year the new official stated) a 25 percent vacancy rate across the whole period and by counting vacant days in five agencies a range in vacancy rates by administration (Reagan, Bush 41, and Clinton) from 11 to 18 percent). 110 Matthew Dull & Patrick S. Roberts, Continuity, Competence, and the Succession of Senate-Confirmed Agency Appointees, 1989-2009, 39 PRESIDENTIAL STUDIES Q. 432, 441-442 figs.3-4 (2009). 111 See id. 112 Matthew Dull, William G. Resh & Patrick S. Roberts, Who Isn’t Running American Government? Appointee Vacancies in Executive Agencies, at 3 (working paper June 9, 2017). 113 Id. at 29-31. 114 Id. at 39 tbl. 1. (The table lists 193 days in parentheses below, which would provide a 26 percent vacancy rate). 115 O’Connell, supra note __. 116 Id. 117 Evan T. Haglund, Empty Seats: Vacancies, Vetting, and Nomination Delay in Presidential Appointments, at 18 (working paper May 31, 2017). The Project on Government Oversight tracks current vacancies in IG positions. See POGO, Inspector General Vacancy Tracker, https://www.pogo.org/database/inspector-general-vacancy-tracker/. 118 Haglund, supra note __, at 19 tbl. 3. 15 months in Obama’s administration.119 In all of these studies (from mine to Haglund), the focus in on vacancy period, not acting officials.120 The best research to date squarely on interim leaders comes from Christine Kinane. She collected information on all Senate-confirmed positions in all cabinet departments from 1977 to 2015 from annual editions of the United States Government Manual and quadrennial editions of the “Plum Book” (i.e., the United States Government Policy and Supporting Publications). She finds: Of the 20,110 position-year observations, 16,651 (83 percent) were filled by a permanent appointee, 1,593 (8 percent) were filled by an interim appointee, and 1,866 (9 percent) were empty. … The percentage of PAS positions without a confirmed appointee (vacancy) fluctuated between 10 and 40 percent between 1977 and 2015. Moreover, the breakdown of interim appointees and empty positions also varied; some years saw more empty positions than temporarily filled (e.g. 1987-1997) whereas others had more interims filling vacancies than empty chairs (e.g. 2009-2015). The distribution of vacancies … aligns with previous findings from O’Connell (2009).121 Because Kinane is relying on yearly reports, she cannot see short-term acting officials or measure the tenure of the acting officials she finds in the publications on which she relies. She also has not examined whether the interim leaders are drawn from the political or career ranks or whether they are later nominated to the position. I offer here some new information on acting officials. In the first section, I do a deep dive into the top leaders of the fifteen cabinet departments in modern administrations—confirmed, recess appointed, and acting. I compare tenures and examine the types of acting officials. In the second section, I turn to the Environmental Protection Agency and focus on three Senate-confirmed positions—the administrator, deputy administrator, and general counsel. This analysis helps provide a picture of interim leaders in both principal and inferior offices but only in one agency. In the third section, I analyze the GAO’s assessments of potential violations under the 1998 Vacancies Act. In the final section, I summarize the principal findings from the first three sections and discuss some avenues for future research, some of which I am pursuing. A. Cabinet Secretaries In the considerable discussion over whether Matthew Whitaker could serve as acting attorney general,122 no one referred to past practices outside the Department of Justice in any systematic manner. Indeed, there is no comprehensive information on interim cabinet secretaries under the 1998 Vacancies Act. Agencies are supposed to report vacancies to the GAO, but do so inconsistently.123 The House of Representatives’ report, Biographical Directory of the 1774-2005, does include long-serving interim cabinet secretaries in its list of executive officers through 2004. However,

119 Id. at 21 tbl. 4. 120 The discussion here has focused on vacancy periods in cabinet departments and single-headed agencies. There is some limited work examining such periods in independent regulatory commissions and boards. See David C. Nixon & Roisin M. Bentley, Appointment Delay and the Policy Environment of the National Transportation Safety Board, 37 ADMIN. & SOC’Y 679 (2006); David C. Nixon, Appointment Delay for Vacancies on the Federal Communications Commission, 61 PUB. ADMIN. REV. 483 (2001). 121 Christina M. Kinane, Control without Confirmation: The Politics of Vacancies in Presidential Appointments, at 18-20 (working paper Sept. 1, 2018). 122 See Part V.A.1, infra; supra notes __-__ & accompanying text. 123 See GAO, supra note __. 16 the last fifteen years are not included, and many short-term acting secretaries do not appear for the period covered.124 I utilized a wide range of sources to create a database of confirmed, recess, and acting cabinet secretaries from the start of President Reagan’s administration to the present.125 Two of the current fifteen cabinet departments came into existence after 1981—the Veterans Affairs Department began in 1989 (after being elevated from a stand-alone agency) and the Homeland Security Department commenced operations in 2003. The database contains the start and end dates; nomination and confirmation dates, if relevant; and the type of acting official (first assistant, other Senate-confirmed, non-Senate-confirmed political, career).126 Any service across two administrations is treated as two observations, one in each administration. There are 306 leaders—170 confirmed or recess appointees and 141 acting officials. Below, I examine how these top positions are distributed among confirmed, recess, and acting leaders, by agency. I then turn to the types of acting leaders, also by agency. I next analyze the extent of interim leadership by administration, from President Reagan to President Trump. To close, I provide a list of the longest serving acting secretaries. 1. Breakdown of Leadership Types by Agency Table1 displays, by agency, the distribution of leadership (by percentage) in the top position by totaling the days of service in the following categories: confirmed secretaries, recess appointed secretaries, acting secretaries, no leader. Only the Department of Commerce lacked any kind of secretary, in 2013, when the 1998 Vacancies Act time limits ran out because President Obama had not formally submitted his nomination of Penny Pritzker. There are only three recess appointed secretaries in the time period covered: Donald Hodel at the Energy Department (by President Reagan), Lawrence Eagleburger at the State Department (by President George H.W. Bush), and Mickey Cantor at the Commerce Department (by President Clinton). Since the Supreme Court’s decision in NLRB v. Noel

124 House of Representatives, House Doc. 108-222, Biographical Directory of the United States Congress 1774-2005, at 3-29 (2005). 125 Using data I had previously obtained from the Office of Personnel Management for other research, I had start and end dates of confirmed and recess appointees for 1981 to 2009. Almost all cabinet departments provide information on confirmed officials in the highest job (that of secretary or attorney general). Combining the OPM and agency provided information with extensive searches of public material (including congressional documents, litigation materials, and news sources), I was able to determine the start and end dates of all confirmed and recess appointees. If someone served across two administrations, such as Robert Gates, he had two observations in the database, one for service in each administration. Using those extensive searches and the gaps in service, I was able to determine start and end dates of interim leaders in these very top jobs. For the 141 interim periods, I also was able to locate information on the specific official serving for all but 16 of them. As with confirmed service, if the interim period spanned two presidential administrations (e.g., January 19 to January 23), it is broken into two observations, one in each administration. All 16 missing periods are in the final few days of an administration or the first days of a new administration. All but one of these stints are between one and three days, and the final one is under ten days. I excluded interim periods of under a day (i.e., where the departing secretary left as of midnight, and the incoming secretary started at noon). 126 For convenience (in order to match some agency records), the end date of the preceding official is often the start date of the next official. By contrast, the EPA’s records, discussed in the next section, do not overlap in this way. The start date of the next official is the day after the departure date of the preceding official. I used congress.gov to obtain nomination and confirmation dates and information on the second category of acting officials. For other information, I searched agency web sites, congressional and judicial materials, and news articles. 17

Canning in 2013,127 the Senate has been conducting pro forma sessions—preventing any recess appointments.128 Table 1. Distribution of Secretary Tenure by Agency January 20, 1981 to March 31, 2019 (DHS, from January 2003; VA from March 1989)

Department Confirmed Acting Recess Empty Leaders Leaders Leaders Agriculture 97.3% 2.7% Commerce 92.7% 4.5% 2.0% 0.8%

Defense 98.9% 1.1%

Education 98.3% 1.7%

Energy 98.2% 1.5% 0.2%

Health & 97.5% 2.5% Human Services Homeland 95.7% 4.3% Security (since 2003) Housing & 98.2% 1.8% Urban Development Interior 98.2% 1.8%

Justice 97.5% 2.5%

Labor 94.4% 5.6%

State 98.4% 1.3% 0.03%

Transportation 97.9% 2.1%

Treasury 98.9% 1.1% Veterans Affairs 91.8% 8.2%

Over six presidential administrations, confirmed secretaries have been running cabinet departments from a low of 91.8 percent of the time (Veterans) to a high of 98.9% of the covered period (Defense and Treasury). 2. Backgrounds of Acting Officials Table 2 breaks down interim leaders by type. First assistants to cabinet secretaries are the deputy secretaries (or for a few early years in some agencies without a deputy position, the undersecretary). I count only individuals who were confirmed to these deputy (or undersecretary) jobs as first assistants. Other Senate-confirmed officials are those confirmed to some other agency position (thus excluding the first assistants). All but two of these officials (both in the Veterans Administration) had been confirmed to a job within the same agency. For those interim leaders who had not been confirmed to another job, they are broken into two categories, a political appointee (like Matthew

127 573 U.S. 513 (2014). 128 See Jordain Carney, Senate blocks Trump from making recess appointments over break, (Aug. 3, 2017). 18

Whitaker) or a long-serving career employee.129 The number of confirmed or recess appointed secretaries appears in parentheses in the total column.

Table 2. Breakdown of Acting Cabinet Secretaries by Type, January 20, 1981 to March 31, 2019

Agency 1st Assistant Other PAS Political Career Unknown Total (Permanent) Agriculture 6 2 0 1 1 10 (11) Commerce 6 5 0 0 3 14 (14) Defense 4 0 0 0 0 4 (13) Education 2 0 1 2 3 8 (11) Energy 4 3 0 1 0 8 (13) Health & 4 3 0 2 3 12 (11) Human Services Homeland 2 1 0 0 0 3 (6) Security (since 2003) Housing & 2 4 0 1 2 9 (10) Urban Development Interior 5 2 0 1 2 10 (10) Justice 6 4 1 0 0 11 (13) Labor 6 4 0 2 0 12 (11) State 4 5 0 0 0 9 (12) Transportation 7 1 0 0 2 10 (12) Treasury 8 1 0 1 0 10 (13) Veterans Affairs 7 2 1 1 0 11 (10)

The Departments of Defense and Homeland Security have had the fewest interim leaders, but the latter agency was established in 2003. At Defense, two of the four acting secretaries served for only a day. Before Mattis was forced out, the last acting secretary for more than a day was William Taft at the start of President George H.W. Bush’s administration. Previous presidents have pushed out their defense secretaries—for instance, President Obama kicked out Chuck Hagel, President George W. Bush asked to leave, and President Clinton removed Les Aspin.130 But all three presidents managed the transitions so there were no acting secretaries. The Departments of Commerce, Health and Human Services, and Labor have seen the most acting secretaries. On average, a cabinet department has had about nine acting secretaries since 1981. 3. Interim Leadership by Administration To compare practices under the 1998 Vacancies Act, by president, I totaled the tenures of confirmed and acting secretaries under Presidents Bush, Obama, and Trump. For President Bush, across his two terms, confirmed secretaries led his cabinet departments 98.4 percent of the time (acting

129 The undersecretary for political affairs at the State Department is typically a career foreign service officer. These individuals are counted as Senate confirmed as they are confirmed political appointees to that position. 130 [Add cites]. 19 secretaries served 1.6%). For President Obama, across his two terms, 97 percent of that period was covered by confirmed secretaries and 2.7 percent was staffed by acting leaders (recall there were over three months at the Commerce Department with no one). For President Trump, through the end of March, confirmed secretaries sat at his cabinet table 90.2 percent of the time; acting officials have led the departments 9.8 percent of the period. Under the first two presidents, deputy secretaries make up most of the acting officials. At the start of new administrations, the cabinet typically resigns but often deputy secretaries linger, with the White House’s permission, to help with the transition. And in the middle of administrations, when cabinet secretaries depart, the deputies again typically stay on until the new leader is in place. For this administration, there have been more acting leaders drawn from the career staff than first assistants. President Trump is not foregoing first assistants under the Vacancies Act to choose career officials to step in. Rather, he has been slow to nominate and the Senate has been slow to confirm his deputy secretaries. In addition, unlike in other administrations, fewer deputy secretaries stayed on into this administration. Either President Trump did not ask them to serve until his team was in place, or they decided to depart at the end of President Obama’s administration. On January 20, 2017, there were thirteen acting cabinet secretaries: nine were careerists at their agencies, three had been confirmed by the Senate to non-deputy positions in the previous administration, and one was Sally Yates, Obama’s deputy attorney general (whom Trump soon fired). By contrast, when President Obama took office, there were ten acting secretaries: three were deputy secretaries confirmed under President George W. Bush, six had been confirmed to other positions in the preceding administration, and one was a career employee. Similarly, when President George W. Bush was inaugurated, he initially had eight interim secretaries: three were deputy secretaries confirmed under President Clinton, and four had been confirmed to other positions in the outgoing administration; I do not know who was acting Education secretary from January 20 to January 23. 4. Longest Tenure List and Highest Number in a Non Transition Year Table 3 lists the twelve longest serving acting secretaries (ten longest tenures) after the enactment of the 1998 Vacancies Act.

20

Table 3. Longest Serving Acting Secretaries, October 21, 1998 to March 31, 2019

Acting Secretary President Tenure Department Type

Rebecca Blank Obama 225 days Commerce First Assistant Seth Harris Obama 182 days Labor First Assistant Bush 43 179 days Veterans Affairs First Assistant Elaine Duke Trump 131 days Homeland Security First Assistant Charles Connor Bush 43 130 days Agriculture First Assistant Eric Hargan Trump 111 days Health & Human First Assistant Services Alphonso Jackson Bush 43 110 days Housing & Urban First Assistant Development Rand Beers Obama 108 days Homeland Security Other PAS Maria Cino Bush 43 101 days Transportation First Assistant Ed Hugler Trump 98 days Labor Career Charles Johnson Obama 98 days Health & Human Other PAS Services Matthew Whitaker Trump 98 days Justice Non-PAS Political

Two currently serving acting secretaries, at the Interior Department and Patrick Shanahan at the Defense Department, are days away (as of the end of March) of making the list. In terms of simultaneous (or nearly simultaneous) acting secretaries, the most interim leaders at one time occurs at the start of an administration. Putting the first and last years aside, Presidents Trump and Obama each had a year with five acting secretaries (2018 and 2013, respectively). President George W. Bush had four acting secretaries in 2007. B. The Environmental Protection Agency Unlike any other agency, the EPA posts on its web site the start and end dates for all its leaders—confirmed, recess, and acting—for three of its Senate-confirmed positions (administrator, deputy administrator, and general counsel). I then supplemented this information with nomination and confirmation dates for the confirmed appointees. I also separated out service as a recess appointee and as a confirmed appointee, which the agency lumps together. I also determined, through nomination records and other public information (including news stories) the background of the acting leaders— specifically, whether they had been confirmed to another position, had a non-confirmed political position, or were drawn from the agency’s career ranks. 1. Administrator Since 1981, there have been twelve confirmed administrators and fourteen acting administrators of the EPA.131 Using the end of this March as the final point, the confirmed administrators have served 35.7 years—with an average tenure of 3 years. The more prevalent acting administrators have led the

131 There is a two-day period unaccounted for the in the EPA list—from January 20 to January 22, 1993. I presume there was an acting official between the departure of William Reilly on January 20 and the start of Carol Browner on January 22. I ignore this gap in the analysis below. 21 agency 2.4 years—with an average tenure of 63.8 days. Andrew Wheeler’s recent acting reign was the longest, at 240 days, beating out the second longest acting, Bob Perciasepe, by nearly three months. Interim leaders mostly appeared at presidential transitions—seven started within a month of a new president’s inauguration and another three began within a month of the start of a president’s second term. The three longest serving acting officials were not at the start of an administration— Wheeler in 2018 and 2019, Perciasepe in 2013, and Marianne Horinko in 2003. Of the fourteen acting administrators, ten were Senate-confirmed to other positions in the agency (including five as deputy administrator), one was Senate-confirmed to a position outside the EPA, and three were career employees. Three of the political acting leaders (two of whom were deputy administrators) were subsequently confirmed to the top post. The formal appointments process—from submitted nomination to confirmation—for all of the confirmed administrators occurred while acting officials led the agency. In other words, no departing administrator stayed on for any time while a successor’s nomination was pending. 2. Deputy Administrator The administrator job at the EPA has never been empty. By contrast, the deputy administrator position has been entirely vacant five times since 1981, totaling almost a year.132 There have been eleven confirmed, two recess appointed, and twelve acting deputy administrators in the period as well.133 Using the end of this March as the terminal point, confirmed deputy administrators have served 27.2 years— about 8.5 fewer years than confirmed officials in the top job—with an average tenure of 2.5 years. Acting deputy administrators staffed the job for 8.5 years—about 6 years more than in the administrator position—with a mean tenure of 259.2 days. The two recess appointees worked an average of 138.5 days. Fewer acting deputy administrators worked at the start of a presidential administration, compared to interim administrators. Five of the twelve interim leaders started within two months of a new president in the White House. Three of the five periods where there was no acting official matched to the start of administrations.134 Of the five longest serving acting deputy administrators, however, two worked in the initial months of an administration—Mike Flynn (second) in 2017 and 2018, Scott Fulton (fifth) in 2009. Of the twelve acting deputy administrators, only five had been Senate-confirmed to another post; none was a cross-agency acting official. Three were non-confirmed political appointees, and four were career officials—all in the agency. Three of the acting leaders (one Senate-confirmed, one political, and one career) were nominated for the deputy job. All but the careerist were confirmed. The careerist’s nomination was pending for almost two years, allowing him to serve in an acting capacity for 836 days.

132 Three of the periods were quite short, averaging 13.3 days. Two of the periods were much longer: 190 and 130 days. I assume there was a sixth period, from January 20, 1981 to May 19, 1981. The EPA lists nothing for that period, and so I exclude it from the analysis below. 133 As with the three acting administrators who were later confirmed, the status of some deputy administrators also shifted. Stephen Johnson was initially an acting, then recess appointed, and finally confirmed to the post; W. Michael McCabe first served in an acting capacity and then was recess appointed; John Moore’s acting service was broken by several weeks at the start of President George H.W. Bush’s administration, when the job was kept vacant, so he is counted twice in the acting tally. 134 If the early months of 1981 were also vacant, four of six periods with no acting officials would have occurred at the start of new presidents. See supra note __. 22

Only one confirmed deputy administrator waited to depart until his successor was confirmed in the fall of 1994. 3. General Counsel The Office of the General Counsel was formed in the fall of 1983, and with its formation the top position became subject to Senate confirmation. Since then, there have been twelve confirmed, one recess appointed, and fourteen acting general counsels. There was also one period where the job was completely vacant—for 134 days.135 Using the end of March for current service, confirmed general counsels had worked 22.3 years, and acting officials had served for 12.3 years—a much larger percentage of the time than interim administrators and deputy administrators. The one recess appointee worked for 173 days before being confirmed. The timing of interim leadership for this position split between the start of a new administration (four periods of acting service within two months), the beginning of a second term (two periods within one month), and other times (eight periods). As with the administrator, the three longest periods of acting service were not at the start of presidential terms. Unlike the other two positions, career officials made up the bulk of the acting title rank. Nine of the fourteen acting general counsels were career lawyers, often the principal deputy general counsel. Some were repeat players: Gerald Yamada worked three separate stints as acting general counsel, and Anna Wolgast did two. Five acting general counsels were political appointees, but only two of them were Senate confirmed to other positions in the agency. No confirmed general counsel continued serving while a successor’ nomination was pending in the Senate. C. Violations of the 1998 Vacancies Act Under the 1998 Vacancies Act, the GAO is tasked with reporting on any agency violations of the Act’s time limits it finds.136 But the GAO does not have to search for non-compliance.137 Since 1998, the GAO has released only twenty-two “violation letters”—finding twenty-four time violations (one letter contained three issues). Of these violations, four occurred in the current administration. The GAO found six, ten, and three violations under Presidents Obama, Bush, and Clinton, respectively. In none of the letters does the GAO recommend nullifying any agency action, and in some letters, because they involve inspectors general and chief financial officers, the GAO expressly notes why agency action performed by noncompliant acting officials should not be undone.138 These time violations are spread across fifteen agencies. The Department of Health and Human Services (including the Social Security Administration) has racked up the most with five violations.139 The Departments of Defense, Education, Energy, Housing and Urban Development, Justice and

135 There is no listed period with neither a confirmed or acting official, but there is one gap in the EPA data—between the departure of Jonathan Cannon on July 4, 1998 and the start of Gary Guzy on November 17, 1998. Both Cannon and Guzy were acting officials. I assume this period was entirely vacant after the enactment of the 1998 Vacancies Act. Cannon had been serving for three years at that point. 136 5 U.S.C. § 3349(b). 137 Id. (specifying reporting only “[i]f the Comptroller General of the United States makes a determination that” the time limit has been violated”). 138 Memorandum from Natalie Peelish; see also supra notes __ - __ & accompanying text. 139 [List Violation Letters] 23

Veterans Affairs each have two.140 The remaining agencies—the Departments of Agriculture, Commerce, State and Transportation, the U.S. Agency for International Development, and the Institute of Museum and Library Services—come in with one apiece.141 Noncompliance also varied by position. One-quarter of the violations concern an acting inspector general. Acting assistant secretaries make up the next highest, with five violations. Interim directors and general counsels chalk up three issues a piece, while acting administrators, chief financial officers, and commissioners have two violations each. One acting undersecretary is flagged.142 When time limits were provided, the average violation was about seven months (past the deadline).143 At the highest end, an acting general counsel at the Department of Health and Human Services was in violation of the 1998 Vacancy Act for nearly three-and-a half years.144 Although the GAO has to report noncompliance of only the time limits it finds, in its violation letters it also flags two other violations of the 1998 Vacancies Act. First, reporting in 2002, it determined that the acting general counsel at the Department of Agriculture had been improperly serving because the Secretary, and not the President, had chosen him from the third category of permitted acting officials (i.e., the senior agency workers).145 Second, reporting in 2014, the GAO noted that three of the four acting general counsels at the Department of Health and Human Services (from 2009 to 2014) were not eligible under the Act, again because the President had not chosen them (and because they were not the first assistant).146 The GAO has also issued two additional letters. One, in June 2008, responded to a congressional request seeking the agency’s opinion about whether the first assistant to the Assistant Attorney General for the Office of Legal Counsel could be delegated all the functions of the AAJ’s role. The GAO found such delegation—the time limits had run so there could not be an acting official— acceptable.147 The other, in February, responded to a request by the Ranking Minority Member of the Senate Finance Committee about agency compliance with all of the Act’s requirements (including agency reporting to the GAO) for positions under its purview.148 The GAO found a number of reporting violations; the one time limit violation it noted involved the SSA, about which it had earlier issued a violation letter.149 The GAO’s letters seriously undercount agency non-compliance. When the 300-day time limit passed in President Trump’s first year, in November 2017, according to agency websites, there were dozens of acting officials seemingly serving in violation of the Act. By mid-December, according to Bloomberg, with whom I worked on the story, there were still a dozen or so positions listed with acting officials, which should have been empty under the 1998 Vacancies Act, including at the Departments of Interior, Justice, and State.150 The GAO did not issue a single letter in November or December. In

140 [List Violation Letters] 141 [List Violation Letters] 142 Memorandum from Natalie Peelish. 143 Id. 144 Id. 145 [Violation Letter]. 146 [Violation Letter]. 147 [Violation Letter]. 148 [Violation Letter]. 149 Id. 150 Josh Eidelson, Trump's Stand-In Bureaucrats May Have Overstayed Limits, , (Dec. 12, 2017). 24 addition, the Investigative Reporting Workshop, which also consulted me, determined that several officials at the Department of Interior seem to be serving in violation of the Act.151 Again, there has been no GAO violation letter.152 D. Summary of Findings and Future Research The previous three sections demonstrate both the richness and limits of this new empirical work. Below, I first summarize the primary findings and then turn to further inquiries. 1. Primary Conclusions There are a number of findings to draw from the empirical analysis of the previous three sections. For the actual cabinet—the secretaries of the fifteen cabinet departments—we now know the following on numbers and tenure:

• At the very highest level of the administrative state, there have been many acting secretaries since 1981. Such interim leaders (141) make up 45 percent of the leaders of the cabinet departments. • These acting secretaries serve, however, for much shorter periods, on average, than confirmed secretaries. At the four departments with the highest tenures (combined) of acting secretaries— Commerce, Homeland Security, Labor, and Veterans Affairs, confirmed secretaries still led more than 91 percent of the time. • The tenure of interim secretaries has been increasing under President Trump. As of March 31, acting secretaries have served nearly ten percent of his administration. • Neither President George W. Bush nor President Clinton had any acting secretaries in their second year; President Trump relied on five.153 The only other years with five or more acting secretaries—outside the first year of an administration—were 2013 (five) and 1997 (six), the first year of Obama’s and Clinton’s second term, respectively. On the types of acting secretaries, we see:

• For cabinet secretaries, first assistants make up the largest percentage of acting secretaries. These deputy secretaries serve in just over half of the interim spots (51.7 percent). Other Senate-confirmed officials hold a bit over a quarter of the temporary jobs (25.5 percent). • Matthew Whitaker is not unique. There have been at least two other non-confirmed political appointees as acting secretaries—one under President Obama and an additional one under President Trump (totaling two). • There have been at least twelve acting secretaries drawn from the career ranks. Ten of them are tied to this administration; the other two served under President Obama. • The greater frequency of career acting secretaries in this administration comes from the lack of confirmed deputy secretaries in the departments. In all three of the last presidential transitions,

151 Victoria Regis Knight & Casey Smith, Experts say long-term vacancies at the Department of the Interior may be a violation of the Vacancies Act, INVESTIGATIVE REPORTING WORKSHOP (Feb. 11, 2019) (noting, for example, that Daniel Jorjani has been acting solicitor since May 2017 and that after the nomination for the position was withdrawn, Jorjani could remain in the role for only 210 days without another nomination pending). 152 Id. 153 To be fair, I am counting Rod Rosenstein who formally was the acting attorney general for one day before the President named Whitaker. [Add citation]. 25

party control shifted in the White House. Only in the last transition did deputy secretaries from the outgoing administration not stay on while the incoming president got his team in place (except for Sally Yates, and she did not remain until Jeff Sessions was confirmed). As for specific acting secretaries:

• Only slightly over two years into his administration, President Trump’s acting secretaries already have three of the ten longest tenures since the enactment of the 1998 Vacancies Act. Two current acting secretaries are days away from making the list. • The two longest serving acting secretaries since the 1998 Act served under President Obama. Indeed, the only time since 1981 when there has not been a confirmed, recess, or acting secretary was at the Commerce Department in 2013. Looking outside the cabinet departments, at the EPA, we find:

• There have been more acting officials in the two highest positions and the general counsel job at the EPA than confirmed appointees. • More than half of those interim leaders served at the start of new administrations (and at the beginning of second terms), with almost all of the acting administrators working in that period. • The tenure of interim leaders increases as the position level decreases. Acting administrators tallied up only 6.4 percent of the days of both confirmed and acting administrators, but interim general counsels served 35.5 percent of the combined service of confirmed and acting leaders. • The type of acting officials also varies by level of the job. Senate-confirmed acting officials dominate at the top; careerists make up the bulk of the interim general counsels. Finally, across the fifteen cabinet departments and the EPA, we find:

• Cross-agency interim officials are rare but sometimes used. Unlike agencies like the CFPB where there are no other Senate-confirmed positions, there presumably were other Senate- confirmed officials in the agency to turn to, but the president went outside the relevant agency to pick an interim leader on three occasions. • The GAO does not report all time violations of the 1998 Vacancies Act, presumably because it has to rely on self-reporting by agencies on vacancies and acting officials, which is mixed at best.

2. Future Inquiry The first two sections capture only a slice of the modern bureaucracy. The first section focuses on the fifteen highest positions in the administrative state—the cabinet. The second section examines three positions in one freestanding executive agency. Within cabinet departments, we do not have systematic data on acting officials below the top position. We do not know if the EPA’s use of interim leaders in two of its sub-ordinate positions is similar or different from cabinet departments, or other free standing agencies such as the Small Business Administration.154

154 See supra note __ (discussing OSHA). Presumably, the Bureau of Alcohol, Tobacco, Firearms, and Explosives is atypical. As noted above, it spent over seven years without a confirmed leader since 2006. See supra notes __-__ & accompanying text. 26

There is both descriptive and predictive work to do. On the descriptive side, we need access to data on interim leaders. Because the Office of Personnel Management does not collect it centrally and agency reporting of vacancies and acting officials to the GAO is unreliable, with the help of individual agencies and other extensive searches, we are going to have to find that information. Once we have comprehensive data, we can examine the types and tenures of acting officials throughout the administrative state. Specifically, we can determine the types of acting leaders—how many are first assistants, Senate-confirmed officials within the agency, Senate-confirmed officials outside the agency, non-Senate confirmed political appointees outside the first assistant role, or senior careerists. We can also assess how the type varies by administration, timing within an administration, and specific agencies as well as how many acting officials are later nominated for the permanent position. Finally, we can analyze the tenures of these interim leaders, not just by type, but also by the dimensions listed above. On the predictive side, more research could look at the strategic use of interim leaders. Kinane is at the forefront of this work, distinguishing among confirmed appointees, interim leaders, and vacant offices. She finds that “the incidence of empty posts increases when presidents prioritize contraction and the likelihood of interim appointees increases when presidents prioritize expansion.”155 The scope of the president’s choice is not constant. At the start of an administration, the president does often choose between interim leadership and leaving offices vacant. Without first assistants in place, there is no default acting official. Under the 1998 Vacancies Act, the president has to choose affirmatively interim officials in the other two categories. In the middle of an administration, however, if the Act’s time limits have not expired, there is almost always an interim leader (as opposed to a vacant office) because there are typically first assistants in place. Empty offices result from the Act’s restrictions, not choices by the president. As noted above, Kinane’s yearly data misses the presence of many interim officials who serve for much shorter stints. Her research, however, does wrestle nicely with the choice between traditional appointees and acting officials. It also generates questions that with better data could be explored. To start, how do presidents strategically choose political and career interim leaders? In addition, how do presidents use the Vacancies Act to audition potential nominees? Most critically, studying acting officials has to be paired with research on agency delegation. When the time limits of the 1998 Vacancies Act run out, so long as the position’s duties and functions are not explicitly restricted by statute or regulation, those duties and functions can be delegated down to other agency workers. (Some of those workers will need to be officers under the Appointments Clause).156 The Investigative Reporting Workshop located two dozen delegation orders at the Department of the Interior since the start of President Trump’s administration.157 Under them, the and the Bureau of Land Management, among other entities, are being run not by acting officials but by deputy directors exercising delegated authority. Although I briefly discuss some of the legal issues in Part V, I am exploring the prevalence of such delegations in the face of staffing shortages and the surrounding legal and policy issues in more depth in other work.158

155 Kinane, supra note __, at 1. 156 See Part V.A.2, infra. 157 Knight & Smith, supra note __. 158 Id. 27

IV. Desirability of Actings Acting officials rarely receive praise. The director of the Partnership for Public Service, a non- partisan entity devoted to effective governance, compares them to “substitute teachers,” who are not “treated super well by the class because they don’t view that the substitute teacher has real authority.”159 In previous work, I joined the chorus of naysayers—arguing that acting officials (and vacancies more generally) had “significant consequences for public policy.”160 Specifically, I contended that vacancies’ effects “include agency inaction, confusion among nonpolitical workers, and decreased agency accountability.”161 There has been some pushback. Most notably, Nina Mendelson in a perceptive piece, offers some benefits to confirmation delays “in the middle layer of political appointments.”162 She argues: Commentators focus most on the costs to presidential influence over broad policies, as compared to simple management of program implementation. But even for such significant regulatory activity, given the gestation period required for a new policy and other factors, reliance on acting career officials to fill a position or an outright vacancy may be less costly than expected.163 Although I had written that the costs to vacancies were greater than the benefits, I had flagged that vacancies may allow for “ability to select better appointees, potentially better performance from frequent turnover, the need or preference for agency inaction in particular policy areas, and the advantages of temporary officials over proper appointees in certain contexts.”164 On acting officials, I suggested that they may be “more competent than confirmed appointees,” particularly if they “are drawn from long-term agency employees.”165 In addition to potential competence advantages, acting leaders “may also provide needed continuity.”166 Navigating the poles of this debate over the desirability of acting leaders in federal agencies is tricky. Take the common dimensions of effectiveness and accountability. On effectiveness, the greatest drops in worker satisfaction in the Partnership for Public Service’s 2018 survey are in agencies with the greatest number of acting officials.167 If workers are unhappy, presumably, they are less effective. On the other hand, we also saw some needed stability from acting officials early on in President Trump’s administration. After the President criticized mayor Sadiq Khan in the aftermath of a terrorist attack, the acting U.S. ambassador, a career foreign service officer, tweeted some counter-messaging: “It is with a heavy heart I offer my condolences and support to the people of the . America grieves with you,” and “The response from emergency services, law enforcement & officials in Ldn–as well as ordinary Londoners–has been extraordinary.”168

159 Russell Berman, President Trump’s ‘Substitute Teacher’ Problem, THE ATLANTIC (April 17, 2017). 160 O’Connell, supra note __, at 935. 161 Id. at 937-38. 162 Nina A. Mendelson, The Uncertain Effects of Senate Confirmation Delays in the Agencies, 64 DUKE L.J. 1571, 1571 (2015). 163 Id. at 1574. 164 O’Connell, supra note __, at 946. 165 Id. at 950. 166 Id. 167 [Add cite]. 168 Rachael Revesz, US Embassy in London distances itself from by praising Sadiq Khan tweets, THE INDEPENDENT (June 5, 2017). 28

On accountability, acting officials are harder to defend.169 They have not been confirmed by the Senate to the jobs they are filling temporarily. On the other hand, by having interim leaders, the Senate may spend more time vetting official nominees. We need to wrestle with the tension between calls for a reduction in Senate-confirmed positions and criticism of acting officials. At the end of the day, interim leaders effectively decrease Senate- confirmed positions, at least for considerable chunks of time. In Part VI, I suggest some reforms to current practices of interim leadership in federal agencies—to foster some of the strengths of acting officials (particularly of senior careerists) and to minimize some of their weaknesses. V. Legal Issues Whitaker’s selection as acting attorney general in 2017 focused popular attention on a core unresolved constitutional issue about interim agency leaders—specifically, whether someone who had not been Senate-confirmed could serve in a principal office temporarily in the absence of an emergency.170 Although that question was not new to legal scholars,171 many other aspects of acting officials have garnered little attention. In this Part, I consider a wide range of constitutional and statutory issues surrounding interim leadership in federal agencies. I turn to potential constitutional problems in the first section—focusing on interim leaders in principal offices and the delegation of an office’s functions under the Appointments Clause but also considering connections to separation of powers principles. In the second section, I pivot to statutory questions—starting with some resolved disputes on the authority of acting officials and limitations on acting service by nominees and then addressing open questions about the 1998 Vacancies Act’s applicability in the face of agency specific succession statutes and to vacancies created by presidential removal, among other issues. The prevalence of acting officials and delegated authority sits in tension with the lack of judicial answers to many constitutional and statutory questions. In part, these questions are just now becoming visible, suggesting answers may come through litigation. Justiciability doctrines also make it hard for parties to raise challenges. As I discuss in Part VI, many could be resolved through congressional action. A. Constitutional Dimensions Not much scholarly ink has been spilled on acting officials but almost all of the spilt ink has focused on the constitutionality of the 1998 Vacancies Act for principal offices.172 In this Section, I do not rehash much of that interesting work but rather consider how the empirical work of Part III might shape the constitutional analysis. I also turn to constitutional issues surrounding delegation of authority in the face of vacant positions, which has been largely neglected. I conclude by addressing wider separation of powers concerns.

169 On a major view of agency deference, political accountability of agencies (and appointees) justifies relatively weak judicial review of many agency actions. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984). 170 See, e.g., Neal K. Katyal & George T. Conway III, Op-Ed, Trump’s Appointment of the Acting Attorney General Is Unconstitutional, N.Y. TIMES (Nov. 8, 2018); Stephen I. Vladeck, Whitaker May Be a Bad Choice, but He’s a Legal One, N.Y. TIMES (Nov. 9, 2018). 171 [Add cites.] 172 [Add the many cites.] 29

A few preliminary notes are in order. The Constitution creates minimal distinctions among agency workers. It explicitly establishes agency “officers,” thereby implicitly acknowledging nonofficer positions.173 As the Supreme Court recently explained in Lucia v. SEC: Two decisions set out this Court’s basic framework for distinguishing between officers and employees. Germaine held that “civil surgeons” (doctors hired to perform various physical exams) were mere employees because their duties were “occasional or temporary” rather than “continuing and permanent.” Stressing “ideas of tenure [and] duration,” the Court there made clear that an individual must occupy a “continuing” position established by law to qualify as an officer. Buckley then set out another requirement, central to this case. It determined that members of a federal commission were officers only after finding that they “exercis[ed] significant authority pursuant to the laws of the United States.” The inquiry thus focused on the extent of power an individual wields in carrying out his assigned functions.174 The Constitution further distinguishes principal from inferior officers. The division matters for how individuals can be selected for the positions. Unless recess appointed, the president must nominate and the Senate must confirm principal officers; but if Congress so chooses, inferior officers can be appointed instead by “the President alone,” “the Courts of Law,” or by “the Heads of Departments.”175 The “line between ‘inferior’ and ‘principal’ officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn.”176 Most recently, the Court described the line as follows: We held in Edmond v. United States, that “[w]hether one is an ‘inferior’ officer depends on whether he has a superior,” and that “‘inferior officers’ are officers whose work is directed and supervised at some level” by other officers appointed by the President with the Senate's consent. In particular, we noted that “[t]he power to remove officers” at will and without cause “is a powerful tool for control” of an inferior.177 The status of an acting official—as an officer rather than an employee and if an officer, as a principal rather than inferior one—thus raises constitutional questions. 1. Acting Officials in Principal Offices Under the 1998 Vacancies Act, acting officials can serve temporarily in principal and inferior offices. Because principal officers must be confirmed by the Senate (if not recess appointed), we have to determine the constitutional status of acting officials in principal offices. In 1898, the Supreme Court upheld the temporary service of Sempronius Boyed, a private missionary, as consul general to what is now Thailand. The Court held: “In case a vacancy occurs in the offices both of consul and vice consul, which requires the appointment of a person to perform temporarily the duties of the consulate, the diplomatic representative has authority to make such appointment, with the consent of the foreign

173 U.S. CONST. art. II, §2, cl.2. 174 138 S.Ct. 2044, 2051 (2018) (citations omitted). 175 U.S. CONST. art. II, §2, cl.2. 176 Morrison v. Olson, 487 U.S. 654, 671 (1988). 177 Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 510 (2010) (citations omitted). 30 government and in conformity to law and these regulations, immediate notice being given to the department of state.”178 In other words, the Court determined that although Boyed was performing the functions of a principal office, he was an inferior officer. The Supreme Court has not ruled on acting officials since 1898, though it did in Edmond “restat[e] Eaton’s holding that ‘a vice consul charged temporarily with the duties of the consul’ is an ‘inferior’ officer.”179 Two justices, however, have weighed in on the 1998 Vacancies Act to varying degrees. Justice Scalia implicitly assumes the constitutionality of the Act by pointing to it and its predecessors as alternatives to recess appointments, in a case about principal offices.180 Justice Thomas believes acting officials—at least those not confirmed to any position—in top jobs violate the Constitution.181 He distinguished Eaton in a footnote: That Solomon was appointed “temporarily” to serve as acting general counsel does not change the analysis. I do not think the structural protections of the Appointments Clause can be avoided based on such trivial distinctions. Solomon served for more than three years in an office limited by statute to a 4–year term, and he exercised all of the statutory duties of that office. 29 U.S.C. § 153(d). There was thus nothing “special and temporary” about Solomon’s appointment.182 Boyed in Eaton had been pressed into service after the Senate-confirmed consul fell ill.183 In commentary and litigation over Whitaker’s appointment as acting attorney general, conflict centered on whether the emergency nature of the appointment was key to the Court’s decision in Eaton. On one side, the government and some scholars contend that the temporary nature of the acting official in a principal office makes that acting official an inferior officer.184 One scholar even suggests that Whitaker could be considered an employee in the acting role.185 On the other side, challengers to the appointment argue that such an acting official is a principal officer. All but the strictest formalists of these challengers, however, would permit a person confirmed to a “germane” position to serve temporarily in a different, principal office.186 Whether cross-agency acting officials (through the second category of the 1998 Vacancies Act) would qualify is a subsequent question. Some have even suggested that if an agency specific succession statute permits a confirmed deputy to take on the top position’s duties, the deputy could serve indefinitely in that acting capacity.187 The conflict interestingly puts formalists and originalists on different sides. The formalists, relying on the structure of the Appointments Clause, view acting officials in principal offices as

178 United States v. Eaton, 169 U.S. 331, 338 (1898). 179 OLC, supra note __, at 15. 180 NLRB v. Noel Canning, 573 U.S. 513, 600 (2014) (Scalia, J.) (“Congress can authorize “acting” officers to perform the duties associated with a temporarily vacant office—and has done that, in one form or another, since 1792.”). 181 NLRB v. SW General, Inc., 137 S.Ct. 929, 946 (2017) (Thomas, J.) (“Appointing principal officers under the FVRA, however, raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.”). 182 Id. at 946 n.1 (citation to Eaton omitted). 183 Id. at 332-333. 184 [Add cites]. 185 [Add cite]. 186 [Add cites]. 187 [Add cite]. 31 principal officers.188 The originalists, by contrast, relying on the 1792 vacancies act and other early historical practice see acting officials in principal offices as inferior officers—at least if their service is under six months.189 The empirical work in Part III suggests that acting officials in principal offices serve for much shorter periods than confirmed officers in those positions. As a matter of practice, acting cabinet secretaries and the acting administrator of the EPA in recent administrations are truly temporary officials. To be sure, the 1998 Vacancies Act permits much longer service but no acting secretary comes close to the limits permitted by the statute. Specifically, the average tenure of acting secretaries under President George W. Bush was 32.1 days, under President Obama, 51.8 days, and under President Trump, 48.8 days. In my view, acting officials in principal offices should qualify as inferior officers— but only if they serve temporarily. 2. Delegation of Authority As discussed earlier, delegation of authority often acts as a substitute to acting officials. This delegation also raises issues under the Appointments Clause. Presumably the delegated functions and duties of a vacant office sometimes constitute “significant authority pursuant to the laws of the United States.”190 Therefore, the delegatee would likely be an officer under the Constitution. Only Congress can create inferior offices or delegate that authority to agency heads. These questions of delegation are statutory, and are discussed below, in more detail. Despite the prevalence of delegated authority due to vacant officers, almost no one has analyzed the interconnected constitutional and statutory issues.191 3. Separation of Powers At a much broader level, acting officials in federal agencies raise separation of powers concerns.192 On one hand, the positions covered by the 1998 Vacancies Act are supposed to be fill by individuals nominated by the president and confirmed by the Senate. The Act, therefore, operates as a workaround to the constitutionally prescribed process that splits authority between the two political branches. On the other hand, Senate confirmations no longer “follow on the same day, or the next” as nominations.193 Provisions for temporary appointments allow the government to function in the gaps. The D.C. Circuit in a case about an earlier version of the Vacancies Act quoted Justice Holmes—“the machinery of government would not work if it were not allowed a little play in its joints.”194 I take up some ideas on how to balance these perspectives in Part VI.

188 [Add cites]. 189 [Add cites]. 190 Buckley v. Valeo, 424 U.S. 1, 126 (1976). 191 [Add cite to Nou (brief mention of issue)]. 192 On a narrower level, whether restrictions on removal apply to acting leaders—a statutory matter—also plays into separation of power disputes about agency structures. See Part V.B.5, infra. 193 Doolin Sav. Bank v. Office of Thrift Supervision, 139 F.3d 203, 209 (D.C. Cir. 1998). 194 Id. (quoting Bain Peanut Co. of Tex. V. Pinson, 282 U.S. 499, 501 (1931)). 32

B. Statutory Questions This Section turns to statutory questions surrounding acting leaders in the administrative state. It first summarizes some resolved disputes, including one addressed by the Supreme Court only two years ago that upended nearly two decades of presidential practice. It then turn to conflicts over the interaction of the 1998 Vacancies Act and agency specific succession statutes. Whitaker’s service as acting attorney general and Mulvaney’s service as acting director of the CFPB generated litigation over such statutory issues. It also examines the applicability of the 1998 Vacancies Act to firings, where litigation also arose over Robert Wilkie’s service as acting secretary of veterans affairs (after President Trump’s firing of Secretary David Shulkin). The Section then turn to some smaller issues—including the bar on “double actings” and the applicability of statutory qualification mandates and removal restrictions to acting officials. Finally, it considers statutory issues surrounding delegations of authority. 1. Resolved Statutory Issues on Authority of Acting Officials and Limitations on Nominees As a matter of logic, interim leaders need not possess the same authority as more permanent ones. For instance, sometimes, the board of directors of a corporation restricts the scope of what interim chief executive officers can do. While often restricting the types and tenures of acting officials, Congress, in its long line of vacancies statutes, has not circumscribed their authority. The 1998 Vacancies Act, for example, provides that the acting official “shall perform the functions and duties of the vacant office. . . .”195 Although no dispute has centered on whether a properly appointed acting official wields the full authority of the office, courts have assumed that to be the case. For instance, in analyzing the 1988 version of the Vacancies Act, the D.C. Circuit explained: “The function of the Act is to allow some breathing room in the constitutional system for appointing officers to vacant positions, to validate the actions of those temporarily occupying the positions.”196 More recently, in his separate opinion concurring in part and dissenting in part in NLRB v. Noel Canning on the constitutionality of certain recess appointments, Justice Scalia noted that acting officials have the same authority as recess appointees: “Congress can authorize ‘acting’ officers to perform the duties associated with a temporarily vacant office—and has done that, in one form or another, since 1792.”197 The assumption is also evident in the recent resolution of a separate statutory question— whether the restrictions on nominees in the 1998 Vacancies Act—90 days of service as first assistant or confirmed to the first assistant position—apply only to first assistants or to all three categories of acting officials.198 Until 2017, the White House followed 1999 guidance by the Office of Legal Counsel and permitted Senate-confirmed officials (to positions other than the first assistant) and senior agency workers with the requisite tenure and pay to continue serving as acting leaders while their nominations were pending.199 A challenge to actions taken by the acting general counsel of the NLRB while his

195 NLRB v. SW General, Inc. 137 S.Ct. 929, 934 (2017) (“Congress has long accounted for this reality by authorizing the President to direct certain officials to temporarily carry out the duties of a vacant PAS office in an acting capacity, without Senate confirmation.”). 196 Doolin Sav. Bank v. Office of Thrift Supervision, 139 F.3d 203, 211 (D.C. Cir. 1998) (emphasis added). 197 524 U.S. 513, 600 (2014) (Scalia, J.). 198 See 5 U.S.C. § 3345(b). 199 OLC, supra note __, at 64 (“The limitation on the ability to be the nominee for the vacant position and to serve as the acting officer applies only to persons who serve as acting officers by virtue of having been the first assistant to the office. If 33 nomination was pending in the Senate made it to the Supreme Court. The acting general counsel was “a senior employee at the NLRB”— in other words, not the first assistant.200 The Supreme Court disagreed with the OLC’s interpretation, finding that the restrictions on nominees applied to all three categories of acting officials.201 Recent practice has therefore changed—prompting Wilkie to step down as acting secretary while his nomination to lead the VA was pending, for example.202 2. Agency-Specific Succession Statutes The last two years have brought high-profile statutory challenges to the 1998 Vacancies Act’s applicability in the face of agency specific succession statutes. First, the dueling acting directors at the CFPB—Mick Mulvaney and Leandra English—were fighting over whether Dodd Frank trumped the Act or the reverse. Before President Trump named Mulvaney under the 1998 Vacancies Act, he sought the advice of the Office of Legal Counsel, which first orally and then in written form determined that the Vacancies Act dominated in any statutory clash.203 Although OLC first held that the Dodd Frank provision providing that the deputy director “shall serve as acting Director in the absence or unavailability” applied to Cordray’s resignation, it critically determined that “fact … does not displace the President’s authority under the Vacancies Act.”204 Specifically, drawing on its analysis for other statutes, OLC concluded: “The Vacancies Reform Act is not the ‘exclusive means’ for the temporary designation of an Acting Director, but it remains available to the President as one means for filling a vacancy in the Director position.” OLC noted that the Act’s language is ambiguous—allowing “a statutory provision expressly” to provide a complete alternative in some cases. It continued, again drawing on earlier assessments involving different statutes: It does not follow, however, that when another statute applies, the Vacancies Reform Act ceases to be available. To the contrary, in calling the Vacancies Reform Act the “exclusive means” for designations “unless” there is another applicable statute, Congress has recognized that there will be cases where the Vacancies Reform Act is non-exclusive, i.e., one available option, together with the office-specific statute. If Congress had intended to make the Vacancies Reform Act unavailable whenever another statute provided an alternative mechanism for acting service, then it would have said so. It would not have provided that the Vacancies Reform Act ceases to be the “exclusive means” when another statute applies.205 One could read the Act in a different (and arguably more natural) way to reach the same result—that only agency-specific statutes that “expressly” prevent the president from turning to the Vacancies Act

someone is serving in an acting capacity on another basis, i.e., as a PAS or a senior agency employee designated by the President, this particular limitation does not apply. However, because senior agency employees may not be designated by the President unless they have served in the agency for ninety days within the year preceding the vacancy …, a similar time limitation in fact applies to anyone who is not already in a PAS position.”). 200 NLRB v. SW General, Inc., 137 S.Ct. at 932. 201 Id. at 938. 202 See supra note __ & accompanying text. 203 OLC, Designation an Acting Director of the Bureau of Consumer Financial Protection (Nov. 25, 2017), at 1. 204 Id. at 1-2. 205 Id. at 5-6. 34 make the Vacancies Act non-exclusive. And, here, the Dodd Frank provision does not explicitly take the Act away. OLC, of course, is not a court and often takes expansive views of presidential power.206 English sued on this very issue, arguing that “Dodd-Frank and the FVRA are in ‘unavoidable conflict,’ which ‘must be resolved against application of the FVRA’ because ‘Dodd-Frank was enacted later in time, and speaks with greater specificity to the question at hand.’”207 The district court sided with Trump, denying both a temporary restraining order and preliminary injunction sought by English. It explained: The best reading of the two statutes is that Dodd-Frank requires that the Deputy Director “shall” serve as acting Director, but that under the FVRA the President “may” override that default rule. This reading is compelled by several considerations: the text of the FVRA, including its exclusivity provision, the text of Dodd-Frank, including its express-statement requirement and Deputy Director provision, and traditional principles of statutory construction.208 English appealed but abandoned that effort when she left the agency in July 2018, soon after Trump nominated Kathy Kraninger as director.209 Second, although most attention over Whitaker centered on the constitutional question discussed above, the applicability of the Vacancies Act was also at issue. Under the Attorney General Succession Act, the deputy attorney general is next in line. OLC opined, again coming down on the side of the President. Indeed, OLC had advised on the Attorney General Succession Act in 2007, when President George W. Bush named Peter Keisler as acting attorney general ( was next in line under the agency specific statute).210 As with the CFPB case, OLC reasoned: In fact, the structure of the Vacancies Reform Act makes clear that office-specific provisions are treated as exceptions from its generally exclusive applicability, not as provisions that supersede the Vacancies Reform Act altogether. Furthermore, as we noted, “the Senate Committee Report accompanying the Act expressly disavows” the view that, where another statute is available, the Vacancies Reform Act may not be used. Id. (citing S. Rep. No. 105-250, at 17 (1998)). That report stated that, “with respect to the specific positions in which temporary officers may serve under the specific statutes this bill retains, the Vacancies [Reform] Act would continue to provide an alternative procedure for temporarily occupying the office.211 OLC also pointed out that the agency-specific “statute expressly states that the Deputy Attorney General is the ‘first assistant to the Attorney General’ ‘for the purpose of section 3345 of title 5’ (i.e., the provision of the Vacancies Reform Act providing for the designation of an acting officer)” and that “[i]t further provides that the Deputy Attorney General ‘may’ serve as Acting Attorney General, not

206 [Add cite]. 207 English v. Trump, CITE, at 11 (D.D.C. 2018) (citations to English’s brief omitted). 208 Id. at 15. 209 Jim Puzzanghera, Leandra English resigns from CFPB and drops her legal fight to be its acting director, LA TIMES (July 6, 2018). Two of the judges at oral argument interestingly seemed to think that the Vacancies Act applied but President Trump could not pick anyone from the OMB under the Act because of a provision in Dodd Frank keeping the CFPB independent from OMB review. [Cite to oral argument]. 210 OLC, Authority of the President to Name an Acting Attorney General, 31 Op. O.L.C. 208 (2007). 211 OLC, Memorandum for Emmet T. Flood (Counsel to the President), at 4 (Nov. 14, 2018). 35 that he ‘must,’ underscoring that the Vacancies Reform Act remains an alternative means of Appointment.”212 But OLC’s take was not widely accepted. Two former OLC attorneys, Walter Dellinger and Marty Lederman, among others, contended that the AG Act should take priority over the Vacancies Act. Among other arguments, Dellinger and Lederman stressed that if the Vacancies Act were read as OLC interpreted it, “it would … constitute a sea change from the rules the legislature had prescribed for the preceding 130 years”—noting that the earlier versions of the Vacancy Act had explicitly excluded the attorney general.213 In addition, they provided an alternative reading of the succession statute: Section 508 further provides that in a case where there’s no Senate-confirmed Deputy AG in office, the Associate Attorney General (assuming there is such an officer in place, unlike today, where there’s not) “shall” perform the AG’s duties. (Moreover, even though subsection (a) says only that the Deputy AG “may” perform such duties, it might be fair to read that provision, too, to impose an obligation on the DAG (i.e., that Congress didn’t mean to suggest the DAG could decline to fill in)[.]214 Finally, they posited that courts should interpret the statutory question using a canon of constitutional avoidance: “[R]eading Section 508 to be exclusive (or at least to be applicable where possible) with respect to Attorney General vacancies would avoid the serious constitutional doubts in those cases where a President might use the [1998 Vacancies Act] to designate someone other than a Senate- confirmed officer in the same agency to perform the AG’s duties.”215 Although multiple suits raised the statutory issue over Whitaker’s acting service, no court ruled on it.216 3. Vacancies Created by Presidential Removal Firings or forced resignations of top officials used to be rare but did occur. According to Larry Sabato, between 1945 and the start of President Trump’s administration, twelve presidents had fired a total of nineteen cabinet secretaries.217 In the summer of 1979, President Carter removed four—the secretaries of energy, treasury, transportation, and health, education.218 President Trump has upped the pace. Limiting to the cabinet, he has pushed out Tom Price (secretary of health & human services), David Shulkin (secretary of veterans affairs), Jeff Sessions (attorney general), (secretary of

212 Id. at 5. 213 Walter Dellinger & Marty Lederman, Initial Reactions to OLC’s Opinion on the Whitaker Designation as “Acting” Attorney General, Just Security (Nov. 15, 2018), https://www.justsecurity.org/61483/initial-reactions-olc-opinion-whitaker- designation-acting-attorney-general/. 214 Id. They continued: “As one of us wrote previously with respect to a similar provision in the statute governing a vacancy in the Office of CFPB Director, Congress’s use of the mandatory “shall” might fairly be understood to at least create a presumption of congressional intent that Section 508 supersedes the permissive provisions of the VRA, which provide the President “may direct” certain individuals to perform such functions.” Id. But they conceded: “DOJ has, however, contested that view, and one district court accepted its argument … that ‘shall’ in the CFPB statute does not reflect a congressional intent to require application of the agency-specific statute rather than the VRA.” Id. 215 Id. 216 [Add cites.] 217 Joshua Fatzick, Trump's Firing of Cabinet Official Rare but Not Unprecedented, VOA NEWS (Jan. 31, 2017); Larry J. Sabato, The Politics of White House Firings, POLITICO (May 26, 2014). 218 Fatzick, supra note __. 36 state), and (secretary of interior), and sped up James Mattis’s departure (secretary of defense). The 1998 Vacancies Act applies to Senate-confirmed positions in executive agencies when the previous officeholder “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”219 The Act does not explicitly refer to presidential removal of confirmed officials—either to include or to exclude firings from its coverage. After Trump fired Shulkin, the President could have relied on the VA statute, which provides for the deputy secretary to step up when there is no secretary. But as with Mulvaney and Whitaker, Trump turned to the 1998 Vacancies Act—naming Wilkie as acting secretary of veterans affairs (and then Peter O’Rourke, when he nominated Wilkie to the position), generating the first lawsuit over whether the Act can be used in cases of presidential removal in April 2018.220 The plaintiffs, veterans who “receive health care from the VA and are therefore subject to the effects of any decisions [the acting secretary] makes” alleged: “Former Secretary Shulkin did not ‘die’ or ‘resign.’ Nor was he ‘unable to perform the functions and duties of the office.’ He was ready and willing to continue serving as Secretary of Veterans Affairs. Instead, he was fired by the President. The President therefore lacked the power to appoint Wilkie or O’Rourke as acting Secretary.”221 The government moved to dismiss, arguing, among other initial issues, that the plaintiffs lacked standing.222 On the merits, the government contended that the Vacancies Act applies to vacancies created by presidential removal: “[A] former Secretary—regardless of the reason for his or her departure from office—is ‘unable to perform the functions and duties of the office.’ 5 U.S.C. § 3345(a). The plain language of the FVRA therefore permits the President to designate an Acting VA Secretary subject to the limits set out in that statute.”223 In addition to the textual argument, the government relied on legislative history, citing statements by Senators in floor debates that the Act applied to firings.224 Had the plaintiffs not voluntarily dismissed their suit in August “in light of the confirmation of Robert Wilkie to serve as the Secretary of Veterans Affairs,”225 the court presumably would have dismissed for lack of standing. The plaintiffs had not pointed to any particular action by the acting secretaries that had caused them particularized and concrete harm that could have been redressed by the litigation. The Department of Justice has long held that the Act applies to firings. In its 1999 guidance on the Act, it noted: “In floor debate, Senators said, by way of example, that an officer would be ‘otherwise unable to perform the functions and duties of the office’ if he or she were fired, imprisoned,

219 5 U.S.C. § 3345(a). 220 Complaint, Hamel v. Department of Veterans Affairs, Case 18-cv-01005-RC (D.D.C. April 30, 2018). 221 Amended Complaint, Hamel v. Department of Veterans Affairs, Case 18-cv-01005-RC, at ¶ 5, 86 (D.D.C. June 20, 2018). 222 Motion to Dismiss, Hamel v. Department of Veterans Affairs, at 8-23 (D.D.C. July 13, 2018). 223 Id. at 25. There are additional textualist arguments on the other side. Under the expressio unius est exclusio alterius canon, by listing specific cases where the Act applies, such as death and resignations, unlisted categories (firings) are excluded. 224 Motion to Dismiss, supra note __, at 25. 225 Stipulation of Dismissal, Hamel v. Department of Veterans Affairs, at 1 (D.D.C. Aug. 1, 2018). 37 or sick. See 144 Cong. Rec. S12.823 (daily ed. Oct. 21, 1998) (statement of Sen. Thompson); id. at S 12,824 (statement of Sen. Byrd).”226 In addition to the textual and legislative history arguments, manageability and policy concerns also weigh in favor of the Act applying to firings. On judicial manageability, courts cannot easily determine whether someone is “ready and willing to continue serving” in a Senate-confirmed position covered by the 1998 Vacancies Act. The line between resignation and removal is often blurry. For instance, Tom Price “resigned under pressure” in September 2017 as Secretary of Health and Human Services “after racking up at least $400,000 in travel bills for chartered flights.”227 Earlier that day, Trump had announced to reporters: “I certainly don’t like the optics” and that “I’m not happy, I can tell you that. I’m not happy.”228 On policy, there is a very strong argument cutting against the Act applying to firing—“that the purpose of the [1998 Vacancies Act] is to give the president flexibility to deal with unexpected vacancies, not to create vacancies himself and then sidestep existing succession schemes.”229 On the other hand, sometimes presidents need to fire officials for good reasons. Assume Price (or Ryan Zinke) had not resigned, President Trump may have fired them. If there were no agency succession statutes or if the next-in-line under the agency succession statutes also had engaged in problematic behavior, without the Vacancies Act, presidents would have to choose between firing “bad apples” and having important positions unfilled until new appointees could be confirmed, on one hand, and keeping deeply problematic appointees in the meantime. To be fair, very few appointees would refuse to resign under pressure from the president who appointed them. Consider, however, this hypothetical involving a presidential election that changes party control of the White House but leaves the Senate in the opposing party’s hands. The outgoing administration’s top officials refuse to resign on January 20. If the incoming president cannot use the Vacancies Act if she fires them, she can either have her government led by appointees opposed to her policies or have the top positions vacant while the Senate slow-walks her nominations. If that new president favors regulation more than the opposing party, the outgoing administration and the Senate can create considerable obstacles to governing. 4. Double Actings In the midst of the Mueller investigation, commentators spun out possible scenarios if President Trump had fired Rod Rosenstein, who as acting attorney general supervised Mueller until Sessions resigned. Assuming Sessions was still serving as attorney general and recused from the investigation, the question was to whom the acting title would pass. In February 2018, the associate

226 OLC, supra note __, at 61 (Question 3). Specifically, Senator Thompson explained on the floor that the 1998 Act was making changes to previous vacancy statutes with regard to firings: “For instance, the Doolin court stated that the current language of the Vacancies Act does not apply when the officer is fired, and for similar reasons, it might not apply when the officer is in jail if he does not resign. To make the law cover all situations when the officer cannot perform his duties, the ‘unable to perform the functions and duties of the office’ language was selected.” [Add cite.] I am grateful to Marty Lederman, who pointed out this statement to me. 227 Peter Baker, Glenn Thrush & Maggie Haberman, Health Secretary Tom Price Resigns After Drawing Ire for Chartered Flights, N.Y. TIMES (Sept. 27, 2017). 228 Ray Locker and David Jackson, HHS Secretary Tom Price resigns in wake of travel spending scandal, USA TODAY (Sept. 29, 2017). 229 Steve Vladeck, The Federal Vacancies Reform Act and the VA: A Study in Uncertainty and Incompetence, LAWFARE (May 23, 2018), https://www.lawfareblog.com/federal-vacancies-reform-act-and-va-study-uncertainty-and-incompetence. 38 attorney general, the third highest official at the department, resigned to take a job at Wal-Mart.230 An acting official, Jesse Panuccio, took over in that spot. Noel Francisco sat in the fourth highest position, that of the solicitor general, as a confirmed appointee.231 Under the Department of Justice’s policy barring “double actings,” the supervision of the Mueller investigation would have passed to Francisco, and not to Panuccio. Specifically, the “double acting” policy would prevent the acting associate attorney general from also serving as the acting attorney general. This prohibition on double actings has intuitive appeal. Imagine a department had confirmed officials in its top three positions—secretary, deputy secretary, and undersecretary. The deputy secretary is the first assistant to the secretary. But the deputy secretary’s first assistant is the principal associate to the deputy. If the top two positions become vacant at the same time, if double actings are permitted, the principal associate to the deputy would become the acting leader of the department, instead of the confirmed undersecretary.232 Nevertheless, agency succession statutes and the 1998 Vacancies Act do not expressly include a ban on someone having two acting titles. A similar issue arises under the Presidential Succession Act, which provides for cabinet secretaries (in order of creation of the agency) to take over as acting president if there is no president, vice president, speaker of the house, or president pro tempore of the Senate. Would acting secretaries be skipped? There is no clear answer.233 The earlier 1886 Act “explicitly included only cabinet secretaries confirmed as such.”234 The current statute, enacted in 1947, is “less clear,” specifying that the succession list “appl[ies] only to officers appointed, by and with the advice and consent of the Senate” but not linking the confirmation to the secretary roles.235 Some believe acting secretaries would be skipped in a doomsday scenario.236 Others claim they wouldn’t be, if they have been confirmed to some other position.237 In February, Trump bypassed his acting secretaries and chose , confirmed secretary of energy, as the “” during his state of the union address.238 5. Statutory Mandates on Confirmed Officials While the main statutory disputes concerning acting officials focus on the applicability of the 1998 Vacancies Act in the face of specific agency succession plans, there are also conflicts over whether restrictions on confirmed officials apply to acting leaders. Although these restrictions, from

230 Josh Gerstein & Eliana Johnson, Justice Department’s No. 3 official resigns, POLITICO (Feb. 9, 2018). 231 Philip Bump, The No. 3 official at Justice is resigning. Here’s how that affects Mueller, WASH. POST (Feb. 9, 2018). 232 Neil Kinkopf provided this example (tied to the titles at the Department of Justice) to me in an email. 233 Fordham University School of Law's Clinic on Presidential Succession, Ensuring the Stability of Presidential Succession in the Modern Era, 81 FORD. L. REV. 1, 43 (“It is unclear whether the acting cabinet secretaries are in the line of succession under the 1947 Act. During congressional debates leading up to the 1947 Act, the topic of their inclusion did not come up once.”). 234 Id. 235 Id. 236 Jordyn Phelps & Karma Allen, Energy Secretary Rick Perry tapped as ‘designated survivor’ for Trump’s State of the Union, ABC NEWS (Feb. 5, 2019) (“The Presidential Succession Act specifies that only Senate-confirmed secretaries are eligible for the role, meaning that “acting” secretaries are not.”). 237 Statement of John C. Fortier, Executive Director, Continuity of Government Commission, Joint Hearing before the Committee on the Judiciary and Committee on Rules and Administration, U.S. Senate, Sept, 16, 2003, at 11. 238 Betsy Klein and Noah Gray, Energy Secretary Rick Perry is the designated survivor, CNN (Feb. 5, 2019). 39 qualifications to removal provisions, target the front and back ends of the appointments process, the limited legal attention has trained on removal. Most removal restrictions apply to agencies that are not covered by the 1998 Vacancies Act or specific agency succession statutes, such as the Federal Trade Commission or the Securities and Exchange Commission. But two agencies whose confirmed leaders have removal protection, the CFPB and the Federal Housing Finance Agency (FHFA), arguably do fall under the Act—and even if they do not, they each have specific succession provisions allowing for interim leadership. Dodd Frank specifies that “[t]he President may remove the Director for inefficiency, neglect of duty, or malfeasance in office.”239 The Housing and Economic Recovery Act of 2008, which created FHFA, similarly provides that “[t]he Director shall be appointed for a term of 5 years, unless removed before the end of such term for cause by the President.”240 The FHHA currently has an acting director, and the CFPB had one as well, until recently. If Mulvaney had simply annoyed President Trump, could the President have fired him from his CFPB role? The specific statutory provisions for the CFPB and FHFA on acting directors do not contain these removal protections. The Vacancies Act is similarly silent on whether any removal restrictions extend to acting officials. The applicability of the removal restriction to an acting official arose in litigation over the constitutionality of both agencies’ structures. The most attention thus far to be given to the issue has been by the Fifth Circuit, involving the FHFA, and it consumed four sentences. In that case, the FHFA claimed that the plaintiffs lacked standing because the challenged decision involving the restructuring of Fannie Mae and Freddie Mac “was the decision of an acting director whose designation was not subject to the for-cause removal restriction.”241 The Fifth Circuit panel disagreed: The FHFA argues that because § 4512(f) does not specify a fixed term nor restrict the President’s removal authority, the acting Director is not subject to the for-cause removal restriction. But if the acting Director could be removed at will, the FHFA would be an executive agency—not an independent agency. There is no indication that Congress sought to revoke the FHFA’s status as an independent agency when it is led by an acting, rather than appointed, Director. So an acting Director, like an appointed one, is covered by the removal restriction.242 The Fifth Circuit granted rehearing en banc; oral arguments occurred in January. The CFPB also raised the defense in the Fifth Circuit in the fall. It argued: “Even if the [agency]’s for-cause removal provision were unconstitutional, that would not entitle Defendants to judgment on the pleadings because the Bureau’s Complaint has been ratified by the Bureau’s Acting Director, Mick Mulvaney, who is removable at will. This ratification cured any defect with the initiation of this action.”243 Unlike the FHFA case, the opposing party (here, defendants in an enforcement action) did “not contest that the President may remove Acting Director Mulvaney at will.”244

239 12 U.S.C. § 5419 (c)(3). 240 12 U.S.C. § 4512(b)(2). 241 Collins v. Mnuchin, 896 F.3d 640, 655 (5th Cir. 2018), rehearing on banc granted, 908 F.3d 151 (5th Cir. 2018). 242 Id. at 655-56. 243 Brief of Plaintiff-Appellee Consumer Financial Protection Bureau, CFPB v. All American Check Cashing, Inc., No. 18- 60302 (5th Cir. Sept. 10, 2018), at 8. 244 Id. at 13 n.5. 40

These questions of statutory interpretation tie to constitutional issues. If acting directors of the CFPB and FHFA can be removed at will, separation of powers concerns are lessened, at least as a functional matter. 6. Delegation of Authority The constitutional questions surrounding delegation have connected statutory issues— specifically, whether Congress has permitted the agency head to create and staff an inferior office and then whether Congress (or the agency) has allowed delegation to that office. As to the first, outside of the interim leadership context, courts have generally relied on agency “excepting” clauses to find the requisite authority. In Edmond v. United States, a case we normally cite for the distinction between principal and inferior offices, the Supreme Court upheld an appointment that was permitted only by a general delegation to the secretary of transportation: Most relevant to the present case, § 323(a) provides: “The Secretary of Transportation may appoint and fix the pay of officers and employees of the Department of Transportation and may prescribe their duties and powers.” Petitioners do not dispute that judges of the Coast Guard Court of Criminal Appeals are officers of the Department of Transportation. Thus, although the statute does not specifically mention Coast Guard judges, the plain language of § 323(a) appears to give the Secretary power to appoint them.245 The D.C. Circuit recently upheld the appointment of Mueller as Special Counsel against an Appointments Clause challenge. As part of its analysis, the court, quoting the Supreme Court’s 1974 decision in United States v. Nixon, noted that “[Congress] has also vested in [the Attorney General] the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533.”246 We have yet to see cases in the interim leader context. But presumably the analysis would be similar. As described earlier, the Department of Interior has delegated authority of vacant offices after the Vacancies Act’s time limits ran out “to ensure uninterrupted management and execution of duties of the vacant non-career positions during the Presidential transition pending Senate-confirmation of new non-career officials.”247 These temporary delegations were set to expire on March 15, 2018, but then Secretary Zinke extended them. Acting Secretary David Bernhardt has subsequently pushed out the expiration date to May 30, 2019, unless “extended, modified, or revoked.”248 Some of this delegated authority went to newly created positions. The constitutional question thus turns on the statutory authority. The Interior Department’s orders rest on Reorganization Plan No. 3 of 1950, Section 2 of which provides: “The Secretary of the Interior may from time to time make such provisions as he shall deem appropriate authorizing the performance by any other officer, or by

245 520 U.S. 651, 656 (1997). 246 In re Grand Jury Investigation, CITE (D.C. Cir. 2019) (quoting 418 U.S. 683, 694 (1974)). 247 Order No. 3345, Amendment No. 14, Secretary Ryan Zinke, DOI, 01/12/2018; 247Jory Heckman, Zinke’s Temporary Filling of Political Positions ‘Remains Murky,’ Says Public Employees Group, FEDERAL NEWS NETWORK (Sept. 14, 2018), https://federalnewsnetwork.com/agency-oversight/2018/09/zinkes-temporary-filling-of-political-positions-remains-murky- says-public-employees-group/. 248 Order No. 3345, Amendment No. 24, Acting Secretary David Bernhardt, 01/29/2019. 41 any agency or employee, of the Department of the Interior of any function of the Secretary, including any function transferred to the Secretary by the provisions of this reorganization plan.”249 This language is similar to the Department of Labor’s governing statute, which allows the secretary “from time to time [to] make such provisions as he shall deem appropriate authorizing the performance by any other officer, or by any agency or employee, of the Department of Labor of any function of the Secretary.”250 In Willy v. Administrative Review Board, the Fifth Circuit interpreted this language to permit the Secretary of Labor to create the Administrative Review Board, appoint members to the Board, and delegate decision-making authority to them.251 As to the second issue, the excepting clauses typically permit both the creation of an inferior office and the delegation of authority to that office. But there may be other statutory or regulatory provisions that make certain functions or duties of the vacant office “non-delegable”. This is discussed in more detail in Part II. For agencies that are not covered by the 1998 Vacancies Act, statutory issues over delegation have generated litigation. In New Process Steel, LP v. NLRB, the Supreme Court rejected the NLRB’s attempt to delegate decisions to two remaining members at the agency.252 The U.S. Postal Service’s recently delegated “certain” powers of the Board of Governors to a “Temporary Emergency Committee” before it lost its quorum.253 Although commentators have argued that the delegation is illegal,254 no lawsuits seem to have raised the issue. There is a final statutory question as well. As discussed above, the 1998 Vacancies Act restricts which nominees can serve as acting officials. At some point, presumably, statutory authorization for delegation to a nominee runs counter to the Act’s restrictions. In other words, if a nominee cannot serve in an acting capacity under the 1998 Vacancies Act because she is either not a confirmed first assistant or a first assistant who has served for at least ninety days, the agency should not be able to delegate the duties and functions of the vacant office to her when she is holding some other title. VI. Reform Federal legislation addressing vacancies in Senate-confirmed agency positions dates back to 1792.255 The terms have shifted over the decades, with the 1998 Federal Vacancies Reform Act establishing the latest procedures for filling vacancies in these positions. In light of the policy and legal concerns detailed in Parts IV and V, this Part considers potential changes to the 1998 Act and beyond. The first section details the most politically feasible changes to the Act’s applicability, the permitted types and tenures of acting officials, the Act’s interaction with other statutory mandates, and the Act’s oversight requirements and enforcement provisions.. This section does not consider delegated authority. The second section steps back from the Act’s treatment of acting officials and considers wider—yet still feasible—agency-based reforms to the staffing of the administrative state, including

249 Department of the Interior Reorganization Plan No. 3 of 1950 (64 Stat. 1262). 250 Department of Labor Reorganization Plan No. 6 of 1950, [add cite]. 251 423 F.3d 483, 491-92 (5th Cir. 2005). 252 560 U.S. 674 (2012). 253 Exercise of Powers Reserved to the Governors and the Board of Governors, 79 C.F.R. § 74.780 (2014). 254 KEVIN KOSAR & DANIEL RICHARDSON, R. STREET, POLICY STUDY. NO. 51, THE U.S. POSTAL SERVICE’S GHOST SHIP BOARD (May 2016), https://www.rstreet.org/wp-content/uploads/2016/02/RSTREET51_2016.pdf; Peter Urban, Nevada’s Billbray Stands Alone on Postal Service Board,” REV. J. (Dec. 13, 2015), https://www.reviewjournal.com/local/local- nevada/nevadas-bilbray-stands-alone-on-postal-service-board/. 255 Act of May 8, 1792, ch. 37, § 8, 1 Stat. 281; see also Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. REV. 1487, 1514–17 (2005). 42 delegations of authority. The final section draws from how states, and one foreign country, address executive vacancies to think more broadly (and more tentatively) about temporary leaders in federal agencies. A. Amendments to the 1998 Vacancies Act Outside of Delegated Authority From the start of the post-New Deal wave of growth in the administrative state until the 1998 Vacancies Act’s major reforms, Congress only twice made minor adjustments to the procedures for filling top agency positions.256 Over two decades later, the Act could use some adjustments— somewhere between the minor adjustments of the 1960s and the massive changes in 1998—in several areas: when it applies, who can serve and for how long, how it interacts with other statutes, and what oversight occurs. 1. Applicability of the Act There are two primary sources of ambiguity surrounding the applicability of the 1998 Vacancies Act, which Congress should address. First, Congress should make clear that the Act’s procedures should explicitly apply when confirmed or recess appointees are fired. Second, Congress should clarify that specific agency statutes on succession should displace the Act’s procedures only if the specific statutes expressly take the general procedures off the table. Looking to the first source of ambiguity, the 1998 Vacancies Act expressly neither includes nor excludes firings. As described in detail in Part V, there are multiple reasons why courts should interpret the ambiguous language to include firings—including, among others, that courts presumably do not want to distinguish between forced resignations and firings in particular cases, and that the exclusion of firings could create perverse incentives for outgoing administration officials after a presidential election that changes party control of the White House.257 These reasons apply at least as forcefully to legislative reforms as to statutory interpretation. In addition, Congress could resolve the issue more easily than the courts, which have to wait for a case that satisfies Article III’s mandates. To be fair, because the Senate wants to protect its role in agency appointments, it may worry that allowing presidents to turn to acting officials after firing confirmed leaders would encourage end-runs around its constitutional role. But presidents will face political costs for seemingly unjustified firings.258 In addition, if firing would be justified but presidents could not turn to an acting official after firing, they may be stuck with poor leaders. Impeachment (and conviction) take time, and are almost never used. Even if Congress chooses to exclude firings (meaning the Act would apply to forced resignations), doing so explicitly has benefits. In the absence of any judicial decisions, such action would resolve uncertainty. Presidents would then pressure appointees to resign, and presumably most would succumb to that pressure.259 The 1998 Vacancies Act also contains confusing language regarding agency-specific succession plans. The Act functions as “the exclusive means for temporarily authorizing an acting official” in

256 S. REP. NO. 89-1380, at 20, 70–71 (1966) (noting minor changes in 1966 when it recodified and enacted Title 5 of the U.S. Code); Presidential Transitions Effectiveness Act, Pub. L. No. 100-398, § 7(b), 102 Stat. 985, 988 (1988) (increasing the permissible tenure of acting officials from 30 to 120 days). 257 See Part V.B.3, supra. 258 See Lorraine Woellert & Arthur Allen, Trump Administration Dials Back Shulkin Firing Rumors—For Now, POLITICO (Mar. 14, 2018), https://www.politico.com/story/2018/03/14/trump-administration-dials-back-shulkin-firing-rumors-va-416442. 259 [Add cite to Zinke]. 43 executive agencies unless “a statutory provision expressly” provides otherwise (for instance, by “designat[ing] an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity”).260 As noted in Part V, we saw litigation over whether both Dodd Frank’s provision that the Deputy Director of the CFPB “shall . . . serve as acting Director in the absence or unavailability of the Director” and the Attorney General Succession Act prevented President Trump from turning to the Vacancies Act to name acting leaders after those agencies’ heads resigned. Congress should examine all of the specific agency succession statutes and determine which should take precedence over the Vacancies Act. Congress could amend those agency statutes to look more like the Department of Homeland Security’s provisions, which detail that the Vacancies Act cannot be relied upon for the top two agency positions if there is a confirmed or recess appointed Deputy Secretary or Under Secretary for Management.261 Alternatively, Congress could reference a complete set of specific statutes with priority in the more general statute. Separately, when there is a specific statute that does not displace the Vacancies Act, the specific statute still can operate, making the “exclusive means” language problematic. For instance, if the specific agency statute permits the deputy secretary to function as the acting secretary with no time limits, the deputy can keep serving past the Vacancies Act’s time limits—assuming there is no constitutional bar.262 Congress could include explicit language about how the Vacancies Act can act in combination with agency statutes. 2. Types and Tenures of Acting Officials Ambiguity is not an issue for the types and tenures of acting officials under the 1998 Vacancies Act; the Act details who can serve as an acting official and for how long. Taking into account the policy and legal issues raised in Parts IV and V, however, some changes seem in order. The Act does not distinguish between principal and inferior officers in establishing who can step into particular Senate-confirmed positions or for how long. Rather, the three permitted categories—the first assistant, any Senate-confirmed official in that agency or in another one, and any senior agency workers who have been in the agency for at least 90 days—can serve as acting both the secretary, the very head of the cabinet department, or as the acting assistant secretary, one of the subordinate leaders. In addition, the tenure of that acting official—620 days and the length of two pending nominations, if there are nominations, and 210 days (300 days in the first year) otherwise— applies to both of those positions. Because of specific concerns about acting officials in principal offices, statutory provisions for acting leaders should differ by the level of the position. For principal offices, the permitted pool of acting officials should be smaller. Specifically, the third category—senior agency workers—should be restricted to senior employees who have served at the agency for a much longer period, such as five years. With a five-year mandate, any staff members almost certainly will be drawn from the career, and not the political, ranks of the agency and will possess critical agency expertise. These attributes decrease the incentive for presidents to use the Vacancies Act as an end-run around the traditional appointments process and improve agency governance.

260 5 U.S.C. § 3347(a) (2017). 261 6 U.S.C. § 113(g)(1) (2017). 262 See Part V.A.1, supra. 44

Some scholars call for the elimination of the third category for principal offices.263 In part, they rely on constitutional arguments, discussed above—specifically, that the Appointments Clause requires a Senate-confirmed official to take on related duties of a principal office. For the reasons provided in Part V, the constitutionality of acting officials in principal offices turns on such officials being inferior officers because of the temporary nature of service: If they are inferior offices, the third category is legally permitted. If not, the category must go. These scholars also turn, in part, to policy, positing that it would be disconcerting to have a non-Senate confirmed official supervising, as an acting secretary, Senate-confirmed officials below her. But many of those subordinate Senate-confirmed officials are inferior officers. Congress does not like to give up its power and so rarely chooses one of the three alternatives for appointing such officers.264 Moreover, at the start of their administrations, presidents may want to keep Senate-confirmed officials from the preceding administration in lower-level positions while they get the top leadership in place, but they may also prefer a more neutral careerist at the helm in the meantime. Others want to curtail the use of cross-agency confirmed officials—like Robert Wilkie or Mick Mulvaney—as acting officials. In Wilkie’s case, there were other Senate-confirmed officials at the Veterans Administration who could have stepped up. In Mulvaney’s case, there were no such officials at the CFPB. Without delegating, such officials are performing two jobs, across two different agencies, which is arguably harder than doing two jobs in the same agency. On the other hand, Senate-confirmed officials as acting officials present fewer accountability concerns. Given the attraction of using Senate- confirmed officials as acting officials from Congress’s perspective, I oppose barring cross-agency acting officials. Cross-agency acting officials can always delegate some tasks of their two positions to help with workload concerns. Although a middle ground might be to limit the use of confirmed officials from outside the agency to when there are none available within the agency,265 the complexity of modern governance supports keeping the pool of potential acting officials wide enough for critical issue and management expertise. In addition to modifying who can serve in the very highest jobs in an acting capacity, Congress should shorten the time limits for these positions, but not as radically as some have suggested.266 Acting officials in principal offices should serve for no longer than 210 days (300 days if the vacancy occurs in the first year of an administration) and the time for two pending nominations. This cuts out the two 210-day periods after two failed (i.e., returned or withdrawn) nominations. The initial 210 (or 300) days would have to cover all the time the two nominations are not pending. The White House should know if the first nominee is encountering trouble on the Hill and can prepare for a potential second nominee in advance.

263 Walter Dellinger & Marty Lederman, Initial Reactions to OLC’s Opinion on the Whitaker Designation as “Acting” Attorney General, JUST SECURITY (Nov. 15, 2018), https://www.justsecurity.org/61483/initial-reactions-olc-opinion-whitaker- designation-acting-attorney-general/. [CITE law review articles making same point, from Part IV] 264 See Anne Joseph O’Connell, Confirmation Rates and Delays, 64 DUKE L.J. 1645, 1696 (2015). 265 Alan Morrison proposed this to me. See Email from Alan Morrison, [Add title], to Anne Joseph O’Connell, Professor of Law, Stan. L. Sch. (Dec. 27, 2017) (on file with author). 266 Paul Light calls for a return to the 120-day limit for all covered positions. Paul C. Light, What the Senate Should Do About Acting Appointees, GOV’T EXECUTIVE (Nov. 27, 2018), https://www.govexec.com/excellence/promising- practices/2018/11/what-senate-should-do-about-acting-appointees/153085/. Nina Mendelson favors a 30-day limit for these top positions. Less extreme, Bloomberg’s editorial page advocates a 210-day (or 300 in the first year) limit. Editorial, Trump Can’t Run the Government with Temps, BLOOMBERG (Dec. 29, 2017), https://www.bloomberg.com/opinion/articles/2017-12-29/trump-can-t-run-the-government-with-temps. 45

The modern appointments system is broken—with considerable delays in the both the nomination and confirmation process.267 Between 1977 and 2005, by one measure, Senate-confirmed positions in executive agencies were not filled by confirmed or recess appointees one-quarter of the time, on average.268 Nearly 30% of President Obama’s agency nominations were returned or withdrawn at least once.269 In addition, for Obama’s successful agency nominations, the confirmation process took, on average, about four months.270 To be fair, fewer nominations to principal offices failed and confirmations for these top jobs took fewer days.271 Nonetheless, there are often meaningful gaps in confirmed agency leadership. Permitting acting officials, however, to serve during two nominations seems important for two primary reasons. First, issues arise during the vetting process, and we do not want the Senate or the White House to feel pressured into accepting a problematic nominee. There often seems to be one cabinet position at the start of modern administrations that takes several announced nominations to fill. For example, it was not until April 28, 2009, that President Obama had a confirmed Secretary of Health and Human Services. His first nominee, Tom Daschle, withdrew after tax issues came to light.272 Second, some vacancies open up near the intersession recess. Even if the same party controls the Senate and the White House, late fall nominations to top cabinet posts are hard to process before the recess: Hearings have to be scheduled; nominees have to respond to follow-up written questions. Such nominations are returned to the president unless all Senators agree to hold them over—a rare occurrence these days. President Obama announced his intent to nominate Loretta Lynch as his second Attorney General on November 9, 2014. Her first nomination was returned and her second nomination was not confirmed until April 23, 2015.273 If her predecessor could not have served during that time, there would have been an acting Attorney General for close to six months. In sum, permitting acting leaders in principal offices for no longer than 210 days and while two nominations are pending balances delays due to vetting, gridlock, and polarization and the need to have temporary leadership of federal agencies for effective governance. The current, longer time limits would remain for inferior offices. For both inferior and principal offices, we may want to think about the interaction of the type and tenure of acting officials. Namely, the pool of acting leaders arguably should grow smaller as the length of the vacancy increases. For instance, if a first nominee fails to get confirmed, perhaps the acting leader should continue serving only if she is the first assistant or a senior careerist who has worked in the agency for at least five years. This would give presidents a wider pool of political officials at the start of a vacancy but as the vacancy drags on, presidents would have to rely on deputies or high- level civil servants.

267 See Part II, supra. 268 O’Connell, supra note __ [Vacant Offices], at 921. 269 O’Connell, supra note __ [Brookings]. 270 Id. 271 See Part III.[fillin], supra; O’Connell, supra note __ [Brookings] (finding a 6% failure rate of nominations and a 23-day confirmation delay for successful nominations for cabinet secretaries between 1981 and 2016). 272 Jeff Zeleny & David Stout, Daschle Withdraws as Cabinet Nominee, N.Y. TIMES, Feb. 3, 2009. It then took about a month for Obama to announce his second nominee, Kathleen Sebelius. 273 Obama Cabinet Nominations, U.S. SENATE, https://www.senate.gov/reference/Obama_cabinet.htm, (last visited Mar. 26, 2019). 46

Such a system would be, in some sense, the reverse of the procedures at the local level. For example, in San Francisco, when Mayor Ed Lee died suddenly of a heart attack in December 2017, the President of the Board of Supervisors, London Breed, automatically became Acting Mayor.274 The Board of Supervisors then voted for Mark Farrell, another member of the Board of Supervisors, to take over as Interim Mayor until a new mayor was chosen in a special election.275 The Board chose politically: It did not want to give Breed a boost in the upcoming special election to choose a new mayor.276 Thus, the change in temporary mayors went from a form of deputy to a political pick. My proposal would do the opposite. Finally, for positions of all levels, we should reconsider the conditions under which the same person can be both the acting official and the nominee to the vacant position. Currently, under the 1998 Vacancies Act, an acting official can also be the nominee only if she has been confirmed to the first assistant position or has been the first assistant (where the position is not Senate-confirmed) for at least ninety days.277 Thus, although Andrew Wheeler had just missed the ninety-day mark as deputy EPA administrator when resigned as administrator, he could serve both as acting administrator and later as President Trump’s nominee for the job because he had been confirmed to the deputy position. Gina Haspel served as acting CIA director while her nomination was pending for the job because she had been the deputy director (now an unconfirmed position) for over a year. But Robert Wilkie had to step down as acting secretary of the Veterans Administration when he was nominated as he had not been the deputy secretary (but rather was Senate-confirmed to a Defense Department job). One potential reform would permit individuals like Wilkie who have been Senate-confirmed to other agency positions to continue serving in an acting capacity if they are nominated to the open position. This change would bring practice closer to what existed before the Supreme Court ruled in SW General.278 But it would not allow acting officials from the third category, who have not been confirmed to any position, to continue serving if they are nominated. Again, we want to discourage end-runs around the normal appointments process but also foster better modern governance. If the president withdraws, the Senate returns (for a second time), or the Senate votes down a nomination of any acting official, that person should have to step down as an acting immediately, even if the time limits have not run (and not be allowed to carry out the functions through delegation). For example, Susan Combs had 210 more days to keep serving as acting assistant secretary for policy, management, and budget at the Department of Interior after the Senate returned both of her nominations (in 2018 and in 2019).279 Wisconsin recently passed legislation barring the incoming governor from “installing any political appointee whose confirmation is rejected by the Senate . . . in a

274 Phillip Matier, It’s Acting Mayor London Breed for Now but What’s Next?, S.F. CHRON. (Dec. 12, 2017), https://www.sfchronicle.com/bayarea/article/It-s-Acting-Mayor-London-Breed-for-now-but-12425696.php. 275 Rachel Swan, SF Board of Supervisors Name Farrell Interim Mayor—Breed Voted Down, S.F. GATE (Jan. 26, 2018), https://www.sfgate.com/politics/article/SF-Board-of-Supervisors-name-Farrell-interim-12520266.php. 276 Id. 277 5 U.S.C. § 3345(b) (2017); NLRB v. SW General, Inc., 137 S. Ct. 929 (2017). 278 See OFFICE OF LEGAL COUNSEL, GUIDANCE ON APPLICATION OF FEDERAL VACANCIES REFORM ACT OF 1998, (1999), at 64 (Question 15), available at https://www.justice.gov/file/19551/download. 279 Mario Recio, Clock Runs Out on Federal Nominations for Susan Combs, Other Texans, AMERICA-STATESMAN (Jan 6. 2019), https://www.statesman.com/news/20190106/clock-runs-out-on-federal-nominations-for-susan-combs-other-texans. [Clarify acting/delegated issue for Combs]. 47 provisional appointment.”280 Such a reform at the national level is not intended to restrict an incoming president, but rather is aimed at better protecting congressional prerogatives. These limits on type and time also need to be considered in conjunction with delegated authority. If an acting official functionally does not differ from an official who is barred from the acting title because of type or time limits but who is delegated the functions of the vacant office, revisions to the type and tenure of acting officials will have little effect as a practical matter. I take up reforms surrounding delegated authority in Section C, below. 3. Interaction with Other Statutory Mandates In addition to specific agency statutes on leadership succession, discussed above, Congress has imposed a slew of other mandates on agency leadership—qualifications mandates at the front end and removal restrictions at the back end of the appointments process. In Part V, I briefly discuss the open legal questions as to whether these mandates apply to acting officials.281 As with the applicability of succession statutes, Congress could resolve any open questions. Given the deep pool of potential acting officials, qualifications mandates, but not removal restrictions, should apply to acting officials to foster good governance. There may be few constitutional imperatives on who can be picked to fill top agency positions, but there are many statutory instructions. William Howell and David Lewis found that over seventy agencies established by legislation between 1946 and 1995 (40% of agencies created by legislation in that period) had imposed restrictions on who could serve in leadership positions.282 Statutory restrictions can also come after creation of the agency—for example, the new requirements imposed on the head of FEMA after Hurricane Katrina.283 The restrictions cover a broad range of affirmative attributes—including demographic characteristics, party affiliation, expertise, and experience—as well as conflicts of interest and other such bars. While demographic restrictions are relatively rare, excepting bars on family connections and citizenship requirements, statutory mandates concerning party affiliation are much more common. Most mandates impose party balancing requirements in independent regulatory commissions, which are excluded from the 1998 Vacancies Act. But some of these mandates require the president to ignore party affiliation in positions covered by the Act. Inspectors General across the federal government, who must be confirmed by the Senate, are to be selected “without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations.”284 Likewise, the Under Secretaries for

280 Mitch Smith, Wisconsin Republicans Approve Bills Stripping Power from Incoming Democratic Governor, N.Y. TIMES (Dec. 5, 2018), https://www.nytimes.com/2018/12/05/us/wisconsin-power-republicans.html. Maryland has a similar provision. MD. CODE ANN., STATE GOV’T § 17-109 (West 2018). 281 See Part V.B.5, supra. 282 William G. Howell & David E. Lewis, Agencies by Presidential Design, 64 J. POL. 1095, 1098-99 (2002). 283 Restrictions do not necessarily become stricter over the life of an agency. For example, the Under Secretary for Health at the Veterans Affairs Department used to have to be a “” with “demonstrated ability in the medical profession, in health-care administration and policy formulation, and in health care fiscal management.” The Veterans Health Programs Improvement Act of 2004 eliminated the degree requirement, and made the ability requirement easier to meet by requiring only one of the three areas. Pub. Law No. 108-422, 118 Stat. 2379; 38 U.S.C. § 305(a) (2017). 284 PAUL C. LIGHT, MONITORING GOVERNMENT 3 (1993); see, e.g., 22 U.S.C. § 3929 (2017) (State Department IG); 50 U.S.C. § 403q (2017) (CIA IG). 48

Health and Benefits at the Veterans Affairs Department, high-level Senate-confirmed positions, must be chosen “without regard to political affiliation or activity.”285 Perhaps most relevant to the authority delegated to them, certain positions must be filled by individuals with specific expertise or experience.286 Some Senate-confirmed positions include both types of requirements. All agency Chief Financial Officers, for instance, must “possess demonstrated ability in general management of, and knowledge of and extensive practical experience in financial management practices in large governmental or business entities.”287 For example, the post-Katrina legislation imposed both knowledge and experience requirements on the FEMA Administrator position.288 Additionally, the Director of the Fish and Wildlife Service “by reason of scientific education and experience” has to be “knowledgeable in the principles of fisheries and wildlife management.”289 Most mandates, however, incorporate either expertise or experience restrictions. While in some cases Congress has left the choice to the president,290 in others, Congress itself has required that certain Senate-confirmed officials have either specific expertise,291 or certain employment or experience.292 Finally, some statutes rule out potential individuals for high-level positions because of perceived conflicts of interest or concerns.293 Many of these prohibitions are within the immediate control of the potential appointee; simple divestment or retirement can make the bar disappear. Some positions, however, bar the official from having served in the military. For example, the Administrator and Deputy Administrator of the National Aeronautics and Space Administration294 and the Administrator of the Federal Aviation Administration.295 For other positions, for example in the Defense Department,

285 38 U.S.C. §§ 305, 306 (2017). Political affiliation is supposed to play no role in the selection of the Archivist of the United States (the head of the National Archives and Record Administration) and the Director of Operational Test and Evaluation in the Department of Defense. 44 U.S.C. § 2103(a) (2017); 10 U.S.C. § 139(a)(1) (2017). 286 To be certain, expertise and experience may overlap. I place knowledge or training requirements under expertise and employment under experience. Sometimes, statutory requirements do not specify either category. See, e.g., 22 U.S.C. § 2651a (2017) (various State Department officers must have “substantial professional qualifications” in particular fields); 26 U.S.C. § 7803 (2017) (the Commissioner of the Internal Revenue Service must have a “demonstrated ability in management”); 42 U.S.C. § 7132 (2017) (the Undersecretary for Nuclear Security at the Department of Energy must have “extensive background in national security, organizational management, and appropriate technical fields” and be “well qualified to manage the nuclear weapons, nonproliferation, and materials disposition programs of the National Nuclear Security Administration”). 287 31 U.S.C. § 901(a)(3) (2017). 288 6 U.S.C. § 313(c)(2) (2017). 289 16 U.S.C. § 742b(b) (2017). 290 See, e.g., 50 U.S.C. § 403-3a (2017) (Director and Deputy Director of National Intelligence, positions created in 2004, must “have, by training or experience, an appreciation of military intelligence activities and requirements”); 7 U.S.C. § 6981 (2017) (Under Secretary of Agriculture for Food Safety must have “specialized training or significant experience in food safety or public health programs”). 291 28 U.S.C. § 505 (2017) (Solicitor General must be “learned in the law”). 292 49 U.S.C. § 114 (Director of the Transportation Security Administration has to have “experience in a field directly related to transportation or security”); 16 U.S.C. § 1 (Director of the National Park Service must have “substantial experience and demonstrated competence in land management and natural or cultural resource conservation”). 293 Conflict of interest prohibitions have a long history. Examining early statutes, Jerry Mashaw notes: Treasury Department officials were forbidden from engaging in “the business of trade or commerce.” Customs officials could not own ships; collectors of duties on spirits could not buy or sell liquor; and Indian agents could not maintain commercial relations with the Indians. Violation of these provisions often carried substantial fines, forfeitures, and disqualification from further officeholding. Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 YALE L.J. 1256, 1310 (2006). 294 [Add cite]. 295 49 U.S.C. § 106(c)(2) (2017). If the FAA Administrator is a former military officer, the Deputy Administrator must be a civilian. 49 U.S.C. § 106(d)(1) (2017). 49 the passage of time eliminates the military bar. The Secretary of Defense cannot have served as a military officer in the past seven years.296 The Secretaries of the Army, Navy, and Air Force face a five- year bar.297 While these mandates limit presidential choice of agency leaders, they also presumably foster good governance in the modern administrative state by requiring some baseline competence of agency leaders. Thus, they should also apply to acting officials, at least if the acting official is not the first assistant. The first assistant—who is the default acting official under the 1998 Vacancies Act— presumably knows the most about the vacant position, and so good governance would suggest that this official still assume the acting role even if she does not meet all of the mandated qualifications. If presidents, however, want to turn to the second or third permitted category to fill temporarily an open position with statutory mandates, the selected person should satisfy those requirements. Take IGs, who are supposed to be chosen “without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations.”298 In October 2018, it appeared that Secretary of Interior Ryan Zinke had tried to replace the agency’s acting IG, who had been investigating him, with the Assistant Secretary for Administration at the Department of Housing and Urban Development, because of her political background.299 It is unclear why the reported move, which generated media attention and backlash, did not occur.300 Regardless, having a statutory bar on such political moves would help alleviate concerns that acting officials undermine Congress’s role in the appointments process. Congress also imposes removal restrictions on certain agency positions. Most of these restrictions apply to commissioners and board members in agencies that are not covered by the 1998 Vacancies Act.301 But some restrictions connect to positions where Congress has provided for acting officials. For instance, as discussed above in Part V, the Director of the CFPB and the Administrator of the FHFA can be removed only for cause.302 Putting legal questions about the current statutes aside, as a matter of policy, it seems that the removal restrictions should not apply to any acting officials in those positions. Acting officials have not been confirmed to the positions in which they are serving temporarily. Without that vetting, it seems odd to give them the independence that comes with confirmation.

296 10 U.S.C. § 113(a) (2017). The military restrictions “reinforc[e] the tradition of civilian supremacy in the United States government.” HENRY B. HOGUE, CONG. RESEARCH SERV., RL33886, STATUTORY QUALIFICATIONS FOR EXECUTIVE BRANCH POSITIONS 10 (2008); see also SAMUEL P. HUNTINGTON, THE SOLDIER AND THE STATE: THE THEORY AND POLITICS OF CIVIL-MILITARY RELATIONS (1957). 297 10 U.S.C. §§ 3013(a)(2), 5013(a)(2), 8013(a)(2) (2017). 298 See supra note __. 299 Carolyn Kormann, Did Ryan Zinke Try to Fire His Department’s Inspector General for Investigating Him?, NEW YORKER, Oct. 22, 2018, https://www.newyorker.com/news/news-desk/did-ryan-zinke-try-to-fire-his-departments-inspector-general-for- investigating-him; Juliet Eilperin & Josh Dawsey, Zinke’s Own Agency Watchdog Just Referred Him to the Justice Department, WASH. POST (Oct. 31, 2018), https://www.washingtonpost.com/energy-environment/2018/10/30/zinkes- own-agency-watchdog-just-referred-him-justice-department/?utm_term=.7dc64c908bae. 300 Id. 301 See, e.g., 15 U.S.C. § 41 (2017). 302 See Part V.B.5, supra. 50

4. Oversight of Agency Practices Given the prevalence of acting officials and delegated authority, and the importance of both, it is disconcerting how difficult it is to find reliable information on agency practices and how few violations are officially found. Changes must be made to the 1998 Vacancies Act to improve disclosure and promote better oversight. The 1998 Vacancies Act relies on agency self-reports about vacancies. The head of a covered agency “shall submit to the Comptroller General of the United States and to each House of Congress” information about any vacancy: “the date such vacancy occurred immediately upon the occurrence of the vacancy”, “the name of any person serving in an acting capacity and the date such service began immediately upon the designation,” “the name of any person nominated to the Senate to fill the vacancy and the date such nomination is submitted immediately upon the submission of the nomination,” and “the date of a rejection, withdrawal, or return of any nomination immediately upon such rejection, withdrawal, or return.”303 There is, however, no enforcement mechanism for late, incomplete, or absent reporting. At the request of the Ranking Minority Member of the Senate Finance Committee, Senator Wyden, the GAO recently examined “compliance with the Federal Vacancies Reform Act …by agencies and departments with respect to positions subject to the jurisdiction of the Senate Finance Committee.”304 Many reports were found to have been issued months after the vacancy began.305 And some vacancies were never reported. For this latter set, the GAO noted only: “No information has been reported to GAO. GAO continued to provide regular reminders to agencies and departments to obtain required reports.”306 An earlier GAO report found that between the November enactment of the 1998 Vacancies Act and the end of June 2000 “agencies had not reported 17 vacancies (19 percent) and 21 acting officials (24 percent).”307 Even at the highest levels—cabinet secretaries—reports are missing. I compared the data presented in Part III, which I collected from public sources, to the reports collected by the GAO. Of the fifteen cabinet departments, only four—the Departments of Energy, Homeland Security, Interior, and State—had reported all vacancies in their secretary position since 2000. The Departments of Interior and Veterans Administration reported less than a majority of the vacancies in the secretary position. Even for those agencies that reported vacancies, it is unusual to have prompt reporting, the name of the acting official, the start and end dates of the official’s service, and information about any nominations.

303 5 U.S.C. § 3349(a) (2017). 304 U.S. GOV’T ACCOUNTABILITY OFFICE, B-329903, LETTER TO SENATOR RON WYDEN, AGENCY COMPLIANCE WITH THE FEDERAL VACANCIES REFORM ACT FOR POSITIONS SUBJECT TO THE JURISDICTION OF SENATE FINANCE COMMITTEE, Feb. 7, 2019, at 1, https://www.gao.gov/assets/700/696799.pdf. 305 Id. at 4-11. 306 See, e.g., id. at 11 n.2. 307 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-01-701, PRESIDENTIAL APPOINTMENTS: AGENCIES’ COMPLIANCE WITH PROVISIONS OF THE FEDERAL VACANCIES REFORM ACT OF 1998, at 2 (2001). Evan Haglund and David Lewis examined agency delays in reporting (assuming they reported) and found that agencies “with appointed general counsels are slower to report vacancies (larger number of days) than other agencies, even when controlling for differences across agencies such as agency size, location, and the number of appointed positions to be monitored.” Evan Haglund & David E. Lewis, Politicization and Compliance with the Law: The Case of the Federal Vacancies Reform Act of 1998, at 17-18 (working paper April 2013). 51

Reporting needs to improve. Congress could mandate that the GAO collect the relevant information at regular intervals (such as twice per year). Or Congress could require the White House’s Office of Presidential Personnel to report the information in a timely manner. Moreover, agencies should have to make annual reports detailing their use of acting officials in Senate-confirmed positions. Enforcement of the 1998 Vacancy Act’s provision is largely left to the GAO.308 If the Comptroller General finds a violation of the Act’s time limits, he has to notify relevant congressional committees, the President, and the Office of Personnel Management.309 But again, the Comptroller General does not have to look for violations.310 Since 1998, the GAO has issued only twenty-four decisions.311 The GAO has noted a few violations of the Act outside of the time limits—specifically, who has been tasked to serve.312 Given the tiny number of violations reported by the GAO in the last two decades, Congress should encourage more oversight. To start, better reporting would help. If reporting on vacancies were improved, more violations presumably would come to light. In addition, Congress could ask the GAO not only to collect more information but also to report twice yearly on violations. Parties harmed by agency action can also sue under the 1998 Vacancies Act for alleged violations. The Act has a powerful remedy—for almost all positions, any violation results in the agency action being voided.313 Litigation, however, takes time, and few parties will have the requisite standing to sue.314 Given that the GAO adjudicates disputes over government contracts brought by bidders who were not selected,315 perhaps Congress could ask the GAO to establish procedures for accepting and resolving credible complaints of violations of the 1998 Vacancies Act. B. Delegated Authority and Agency-Based Reforms of Staffing This section turns from changes to the 1998 Vacancies Act’s procedures for acting officials to modifications involving agency use of delegated authority (in other words, the delegation of the functions and duties of a vacant office). It also steps back from the Act to consider other agency-based reforms. Acting officials and delegated authority are largely two sides of the same coin. Restricting the former without changing the latter will simply push agencies to rely more heavily on delegation. To complement the reforms on acting officials, we must also change how agencies use delegated authority. To start, the public needs to know about delegations. Even if compliance is mixed, the 1998 Vacancies Act at least requires agencies to notify the GAO and Congress of vacancies and acting officials. It does not mandate that agencies inform anyone of delegated authority. Agencies should have to report on any delegated authority that is being used because of vacancies in Senate-confirmed positions. Such reporting should include, at the least, information on the delegated tasks, who is carrying out the duties, and any time limit on the delegation. Ideally, the GAO

308 See Part III.C, supra. 309 5 U.S.C. § 3349(b) (2017). 310 Brannon, supra note __, at 20. 311 See Federal Vacancies Reform Act, U.S. GOV’T ACCOUNTABILITY OFFICE, https://www.gao.gov/legal/other-legal- work/federal-vacancies-reform-act#search (last visited Mar. 27, 2019) (only one decision involves multiple positions). 312 See supra notes __ - __ & accompanying text. 313 5 U.S.C. § 3348(d)(1) (2017). 314 Stipulation of Dismissal, Hamel v. Department of Veterans Affairs, No. 18-1005 (D.D.C. Aug. 1, 2018). 315 [Add cite]. 52 would collect all of these reports so the public could go to one place to see who is doing what in the federal bureaucracy. To encourage compliance, agencies should have to provide information twice a year on delegations used in the past six months. The GAO should also have to report on agency compliance. This could be done by amending the 1998 Vacancies Act to incorporate these mandates on agencies and the GAO. There are also several issues agencies should address outside the framework of the Act. First, agencies should engage in regular succession planning and should make that planning accessible to the public. Under presidential directive, agencies must develop a succession plan.316 Agencies should reconsider that plan on a regular—perhaps biannually—schedule and might want to take public comment for improvements. In addition, agencies should make their succession plan easily accessible on their websites. Agencies should try to establish plans that comply with statutory mandates on confirmed officials during periods of temporary leadership, within reason—for instance, by ensuring that the first assistant has any requisite expertise requirements. Unlike in business, where explicit internal succession queues may discourage senior executives if made public, the need for government transparency dominates any hurt feelings; there is also less mobility among senior government managers.317 Second, agencies should invest in senior careerists. The civil service is in crisis.318 One recent survey of members of the Senior Executive Service found that 48.3% were eligible to retire in the next year.319 Specifically, agencies should prepare senior employees for high-level temporary leadership—for example, by investing in management training. These employees need leadership skills as well as support negotiating relationships with colleagues—in supervising them as an acting official and then rejoining them once a confirmed official takes over.320 In addition, agencies should reward such employees who do step into acting roles. Currently, they are not paid more for taking on added responsibilities.321 Performance pay or additional vacation time seems worthwhile to at least contemplate. Third, agencies should strengthen their relationships with the White House’s Office of Presidential Personnel. With stronger connections, both sides could work to decrease unexpected vacancies and to prepare for normal turnover of Senate-confirmed leaders.322 In addition to improving traditional staffing, they could also devote more energy to acting officials. In presidential transitions, agencies prepare briefing materials for the campaigns about their work.323 These materials should also contain information about political appointees who are willing to stay into the new administration and senior careerists who could serve as acting officials while the new administration gets its own staffing in place.

316 [Add cite]. 317 [Add cite]. 318 See NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, NO TIME TO WAIT, PART 1: BUILDING A PUBLIC SERVICE FOR THE 21ST CENTURY (2018). 319 Kathleen M. Doherty, David E. Lewis & Scott Limbocker, Executive Control and Turnover in the Senior Executive Service, 20 J. PUB. ADMIN. RES. & THEORY 1, 9 (2018). 320 [Add cite about difficulty of being interim and then going back to day job]. 321 5 U.S.C. § 5535 (2017). 322 See O’Connell, supra note __ [Vacant Offices], at 918-920 (describing a “cycle of agency appointments—from the start through the end of a presidential administration”). 323 To be sure, agencies cannot force anyone to read them. See MICHAEL LEWIS, THE FIFTH RISK XX (2018) (describing how only Secretary Ross took the briefing materials at the Commerce Department). 53

C. Wider Perspective on Reform To think more broadly about policy proposals, consider three comparative examples—two in the states, and one abroad. First, in California, for positions where the appointment power is “vested in the Governor and the Senate,” the governor’s nominee can serve “at the pleasure of the Governor” until the Senate confirms her.324 If the Senate refuses to confirm the nominee, she must step down. Second, in Arkansas, for some agency positions, if within a set time period the Governor “should fail to appoint or fail to submit to the Senate for confirmation the name of any appointee, then the office shall be vacant, and the Senate shall proceed to fill the vacancy by an appointee of its own choice.”325 Third, in Bangladesh, by agreement of the major political parties, a caretaker government governed between 1996 and 2008 during periods of political transitions to help foster freer elections.326 Specifically, the military-backed interim government allowed non-partisan experts to run the country in the run up to the elections and for a short time after.327 At first glance, these examples may look quite different from our current system, but they have interesting parallels. To start, the 1998 Vacancies Act allows certain nominees to also serve as acting officials. Under the reforms suggested in Section B, more such nominees could do the job in an acting capacity. Thus, the Act, through the acting title, allows office holding before confirmation. Second, although Congress does not fill vacant positions, it has shifted the selector for certain positions as the vacancy continues on. For instance, the Attorney General can choose an interim U.S. Attorney to serve for 120 days.328 After that point, the relevant district court “may appoint a United States attorney to serve until the vacancy is filled.”329 Finally, to the extent that agencies rely on senior careerists very late in one president’s term and at the start of a new administration, they mimic, to some degree, a caretaker government. The most dominant reform proposal concerning agency appointments—from national commissions, the GAO, and commentators—calls for fewer agency positions subject to Senate confirmation.330 Sometimes, this happens. The bipartisan Presidential Appointment Efficiency and Streamlining Act of 2011 eliminated the confirmation requirement for 163 positions, such as Assistant Secretaries for Public Affairs.331 Congress, however, generally does not like to give up its power and instead vest the appointing power in one of three constitutionally-permitted alternatives for inferior

324 CAL. GOV’T CODE § 1774 (West). 325 ARK. CODE ANN. § 25-17-204(c)(4) (West 2009). 326 I am grateful to Aziz Huq for this example. [Add cite]. 327 [Add cite]. 328 28 U.S.C. § 546(c) (2017). 329 28 U.S.C. § 546(d) (2017). 330 See O’Connell, supra note __, at 1695 n.148 (collecting cites). 331 Presidential Appointment Efficiency and Streamlining Act of 2011, Pub. L. No. 112- 166, 126 Stat. 1283; see also Carl Hulse, Senate Votes to Streamline the Confirmation Process, N.Y. TIMES, June 30, 2011, at A18 (noting that it was a “rare step of relinquishing power” but that the law passed “easily,” on a 79–20 vote). 54 offices—the President, the courts, or the heads of departments.332 Moreover, appointees like the stature (and the pay) that comes with confirmation.333 Appointments delays and acting officials together effectively cut back the number of Senate- confirmed positions—at least for significant chunks of time. In other words, political and practical realities essentially dominate political infeasibility on more formal manifestations. VII. Conclusion Despite the substantial power of agency leaders and the consequences of that authority for governance, administrative law doctrine and scholarship largely overlook them. Some attention is paid to who can select agency leaders and who can remove them (and for what reasons).334 But essentially no attention is devoted to the people who are actually selected.335 Even in discussions about the politicization of agencies, as David Barron and I have separately noted, public law scholars have generally ignored agency personnel.336 Legal scholars are more likely to dissect mechanisms such as Office of Management and Budget review of rulemakings.337 But such centralized devices arguably are not as effective as staffing decisions for controlling the bureaucracy.338 Even outside the politicization context, agency leaders are important to administrative law—for example, to understanding agency performance and legitimacy. The limited attention given to agency personnel has almost exclusively focused on traditional appointees. But interim leaders are everywhere in the administrative state. The sparse discussion about acting officials has centered on constitutional issues. Those issues arguably depend on empirical realities, which have not been investigated by legal scholars before now. There are also hard statutory questions. Acting agency officials are part of a story of growing presidential control as well. Congress may not want to cut confirmation mandates from inferior offices. But presidential reliance on acting leaders and delegated authority appears to do just that.

332 U.S. CONST. art. II, § 2, cl. 2. 333 See Carolyn Ban & Patricia W. Ingraham, Short-Timers: Political Appointee Mobility and Its Impact on Political-Career Relations in the Reagan Administration, 22 ADMIN. & SOC’Y 106, 118–19 (1990). 334 [Add cites.] 335 By contrast, legal scholars have dissected the backgrounds of federal judges, linked those backgrounds with voting behavior, and compared the qualifications and performance of appointed and elected judges. See, e.g., CASS R. SUNSTEIN ET AL., ARE JUDGES POLITICAL?: AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY (2006); Stephen J. Choi et al., Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary, 26 J. L., ECON. & ORG 290 (2010). 336 David J. Barron, Foreword, From Takeover to Merger: Reforming Administrative Law in an Age of Agency Politicization, 76 GEO. WASH. L. REV. 1095, 1104 (2008); O’Connell, supra note __, at 921. 337 Barron, supra note__, at __. Barron posits that “the legal issues presented by staffing practices are neither as interesting nor substantial as those posed by presidential efforts to override autonomous agency judgments.” Id. at 1044. In this and earlier work, I have tried to undermine this perception. 338 Id. at 922 (drawing heavily on Terry M. Moe, The Politicized Presidency, in THE NEW DIRECTION IN AMERICAN POLITICS 235 (John E. Chubb & Paul E. Peterson eds., 1985)). 55