On Lawfare, Paul Rosenzweig cogitates on the problems of perpetually “acting” heads of agencies in the Federal Government in the face of President Trump’s extensive use of same. I’m not sure he has severe enough consequences for an ill-behaved President:
-Reform of the Federal Vacancies Reform Act to prevent perpetual “acting” appointments. Vacancies happen. Not every political position within the executive branch is filled all the time. And the Senate confirmation process for political appointees is not always expedient. As a result, through the Federal Vacancies Reform Act of 1988 (FVRA), Congress provided general authority enabling the president to temporarily fill vacancies in high-level federal government positions. The law also establishes rules for the appointment of such temporary officers. When not superseded by other statutes, the act specifies whom the president can appoint to fill a vacancy and how long that individual can serve.
The Trump administration has exploited this authority to avoid the Senate confirmation process while placing preferred individuals in key positions. The Department of Homeland Security has not seen a confirmed secretary for more than 500 days (the longest such vacancy in American history). Instead, three acting secretaries have led the wayward agency and the president has only recently announced his intent to nominate a full-time leader. Similarly, the Defense Department was run by an acting head for 203 days. And the director of national intelligence position was filled by an acting official for 188 days, most recently by Richard Grenell, a Trump loyalist with little intelligence experience. In a particularly egregious case, the administration rearranged the line of succession in the U.S. Citizenship and Immigration Services (USCIS) to install Ken Cuccinelli as acting director of USCIS under the FVRA, a move that the U.S. District Court for the District of Columbia ruled unlawful.
The FVRA should be modified in at least two ways. First, current law allows the president to appoint anyone holding a Senate-confirmed position in the executive branch as the new acting official of any agency. The law should be modified to make clear that no individual may be appointed to serve as acting head of an agency if his or her senatorial confirmation is for a position in a different agency. Second, the law should deny salary funding to any appointee after a fixed period of time. Other measures (such as limits on the qualifications of who may serve in a temporary position) may also be appropriate.
Frankly, denying salary to a maliciously motivated “acting” appointment is little more than using a peashooter on a charging elephant. Even if you’re good enough to catch the elephant in the eye, it doesn’t matter.
In other words, there’s little here to slow down a person who is independently wealthy, or a President whose allies, or the President themselves, is willing to financially support that person – and it’s not hard to see that happening in this instance. A reliable rubber stamp can be hard to find.
But the real problem here is that the focus of punishment is on the person who is leading the Agency without approval, not the origin of the wrong-doing, the President. Punishment, if it must come, must be inflicted on a President who refuses to run the government in line with “best practices”, and who may, in fact, be a malevolent actor.
I’m not sure what that punishment might be, unfortunately. I have no doubt that President Trump either suffers from mental illness or is unduly constrained by foreign forces, and that differentiates him, I believe, from every single prior President – which, in combination with an absolutely subservient and groveling GOP, is why we’ve never seen this problem before.
I suspect that, without actual change to the Constitution, punishing the President with anything less than impeachment & conviction will not pass muster with the SCOTUS, and that’s understandable. But it may prove to be a terrible strain on America if we ever have to go through this again, because, frankly, Rosenzweig’s suggestion, while headed the right way, is not going to make much headway.
