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Please do not cite or distribute beyond the workshop without permission.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, Jeff Sessions, 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 TwentyFifth 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 United States.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,
2 Id.
3 Id. Roy Moore defeated Strange in the primary; Doug Jones 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),
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.
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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 Senateconfirmed? 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 Mick Mulvaney, 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.
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
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A few months later, President Trump fired David Shulkin, Secretary of the Department of
Veterans Affairs, naming Robert Wilkie, 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, POLITICO (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-permanentleader/?utm_term=.ba0ae40f6c0a.
17 Read Jim Mattis’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),
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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 agencyspecific 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.
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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.
