It’s been six months since the Department of Defense had a permanent leader. After Secretary of Defense James Mattis resigned in protest in December, President Donald Trump named Patrick Shanahan, the department’s deputy secretary and a former Boeing executive, as its acting head. Then Shanahan stepped down on Tuesday after domestic-violence incidents in his family became public. Trump quickly named Mark Esper, the secretary of the army and a former Raytheon executive, to take command of the Pentagon.
This isn’t how things are supposed to work. The president’s nominees to lead federal agencies must be confirmed by the Senate before they can exercise the duties of the office. There’s an exception, however: The Federal Vacancies Reform Act of 1998 (FVRA) gives the president a certain amount of leeway to install other top federal officials into posts on a temporary basis.
In theory, presidents would use—and have used—the FVRA to fill gaps in leadership while the Senate considers a permanent replacement. Under Trump, however, the law has become a vehicle to place favored underlings in charge of major federal bureaucracies without the Republican Senate’s approval. In some cases, this takes place with the senators’ unspoken assent. In other cases, it happens in direct defiance of their wishes. Either way, it’s a legal flaw that must be corrected.
Perhaps the most glaring example of Trump circumventing the Senate’s constitutional duty came earlier this month. In May, White House officials confirmed that Trump intended to pick Ken Cuccinelli, the former Virginia attorney general, to lead U.S. Citizenship and Immigration Services (USCIS). But the prospect quickly faced strong opposition from Senate Republicans, many of whom Cuccinelli targeted from the right as president of the Senate Conservatives Fund. Facing near-certain defeat, Trump didn’t formally nominate Cuccinelli, naming him to the post in an acting capacity instead.
How did the president evade the Senate? According to Steve Vladeck, a University of Texas law professor, Trump first appointed Cuccinelli to USCIS as the agency’s “principal deputy director,” a post that apparently did not previously exist. Since federal law does not specify which official in the agency was the “first assistant,” Trump was then able to name Cuccinelli to the acting directorship. “In other words, through nothing other than internal administrative reshuffling,” Vladeck wrote, “the Trump administration was able to bootstrap Cuccinelli into the role of acting director, even though, until today, he had never held any position in the federal government.”
The problem is particularly acute under Trump because there are so many vacancies to fill. The White House purged Secretary of Homeland Security Kirstjen Nielsen and other top officials in the department in April, leaving it with almost no permanent, Senate-confirmed leaders. The acting secretary, Kevin McAleenan, is technically the commissioner of U.S. Customs and Border Protection. Acting leaders currently run Immigration and Customs Enforcement, the Federal Emergency Management Agency, the Food and Drug Administration, the Federal Aviation Administration, and more.
There are multiple benefits to this system for Trump. It spares him the political risk of contentious confirmation battles with senators, especially in areas like immigration and trade where there are dissenters in the Republican ranks. It allows him to install subordinates who would not get Senate approval, giving him pliant department heads to enact his most contentious policies. And, most importantly, a permanent office–holder is better positioned to push back against his demands, whereas temporary appointees can be easily reshuffled depending on his whims. “I sort of like ‘acting,’” Trump remarked in January. “It gives me more flexibility.”
The Constitution’s framers saw the danger in letting the president staff the executive branch without oversight and gave the Senate the power to advise and consent to nominations. But the FVRA short-circuits this process. Generally speaking, it allows the president to name an acting replacement if a Senate-confirmed official “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” There are limits, including a restriction that an acting head can only serve for 210 days, but there are also exceptions that can extend that length of time.
Trump’s abuse of the FVRA to avoid political and senatorial hurdles shows how that system can be abused. In April, Vladeck proposed three solutions to the problem. First, he wrote, the time limit for acting officials should be reduced from 210 days to 60 days. Second, to prevent presidents from elevating just about anyone to leadership posts, Congress should explicitly define who counts as the “first assistant” in every federal agency, so that loophole can’t be exploited as it was for Cuccinelli. Finally, Vladeck argued, Congress should limit the job duties that an acting official can perform to reduce the likelihood of abuse.
Those are all good ideas. Protect Democracy, a nonprofit advocacy group, recently proposed another good one: Deny presidents the ability to invoke the FVRA when a vacancy arises because the previous permanent official was fired. This issue came to light last November when Trump ousted Attorney General Jeff Sessions and installed Matthew Whitaker, Sessions’s chief of staff, as the acting head of the Justice Department. Trump may have been attempting to rein in the Russia investigation by supplanting Deputy Attorney General Rod Rosenstein. The Supreme Court turned down an opportunity to decide whether the maneuver was constitutional, leaving the ball in Congress’ court.
This is one of the defining challenges of the Trump era. Congress, over many decades, has written overly broad laws for presidents to use in specific situations, and Trump is now wielding them in bad faith for political expediency. Whether it’s enacting a ban on Muslim travelers, selling arms to Saudi Arabia, or declaring a national emergency to build a border wall, he is more than willing to take advantage of lawmakers’ abdication of their own powers. The only question is how much more Trump will get away with before Congress acts to take those powers back.