With ambassadors held up, “acting” officials could become new norm

Last week, it took an ongoing crisis around the missile attack on flight MH-17, new sanctions related to the Russian Federation’s influence in Ukraine, and a shaming tweet from a White House official for the Senate to narrowly confirm the president’s nominee for ambassador to Russia. The increased partisanship exhibited by a Congress that delays these vital confirmations, combined with structural factors as the Obama administration enters its last two years, raises serious but manageable concerns about the succession of leadership in our nation’s executive agencies.

When John Tefft’s confirmation was first put to vote (as part of a group of ambassadorial nominees) it was delayed by a Republican objection, potentially holding the important Moscow post in limbo during a monthlong Senate recess. The situation prompted White House deputy national security adviser Ben Rhodes to publish the now-famous rhetorical question on Twitter "How can people criticize the president for being 'disengaged' on Russia and then block the confirmation of an ambassador to Russia?" before Ambassador Tefft was individually confirmed by a voice vote. Meanwhile, dozens of the president’s diplomatic and other nominees will wait until at least September for Senate confirmation to assume their positions at the front lines of American foreign policy and executive agency leadership.

ADVERTISEMENT
Additionally, if White House history is any indicator, during the next two years many of the president’s appointed officials will begin a natural process of transition from public service to the private sector, academia, NGOs or other political campaigns. One consequence of this upcoming exodus will be that a new tier of leadership must step into the void as “acting” officials, assuming all responsibility until a Senate confirmed successor can formally assume each of those offices. That said, the powers and responsibilities of these “acting” officials during this period of the Obama administration will be subject to a number of special laws that can be carefully navigated, in order to avoid legal liability and political jeopardy.

A number of procedural norms can impose sometimes artificial compliance burdens on acting officials, and require attention to complex and somewhat arbitrary rules. For example, in a particular agency that loses its administrator, the principal deputy will automatically and immediately become the “acting administrator,” unless the president expressly directs a different individual to serve.

Once in office, there are surprisingly few substantive limitations on the power of acting officials who replace Senate-confirmed individuals (even if they have not yet themselves been subjected to the Senate confirmation process).  A federal employee who was previously acting in a non-confirmed, or even advisory capacity, may undertake most actions associated with the office and with the authority of the permanent official who has since vacated the office.

Most of the legal limitations on “acting” positions are set forth in the Vacancies Act as amended in 1998, which provides the exclusive means for temporarily authorizing an acting official to perform the functions and duties of an Executive Branch office requiring advice and consent of the Senate.  Under the Vacancies Act, if the president does not specifically appoint an acting officer, the first assistant to the vacant office steps in. Although some appropriations statutes specifically prohibit payments to certain acting officers, for the most part under the Vacancies Act an acting official is likely to have substantially similar powers to the person whom she replaces.

The primary procedural limitations under the Vacancies Act are time limits under which an official can serve in an acting capacity, and limits on the ability of an official to serve in an acting capacity for a position the same official is also nominated to fill.

The Vacancies Act generally limits an acting officer to a maximum of 210 days of service, beginning when the vacancy occurs, subject to a number of exceptions. For example, if a first or second presidential nomination for the office has been submitted for Senate approval, the acting officer may continue to serve up to 210 days after the nomination has been rejected, withdrawn, or returned.  Further, if the vacancy occurred while Congress was adjourned sine die, then the 210-day limitations period begins running on the day that the Senate reconvenes.

If an acting official also wants to be nominated for his or her permanent position, a peculiar set of rules applies. In order to serve simultaneously as an acting officer who was not previously subject to Senate confirmation, and at the same time be considered as a nominee for the Senate confirmed permanent position for the same office, the acting officer must have first been assistant to the office for at least 90 of the 365 days preceding the date of the vacancy.  These rules allow a deputy to be both nominee and acting officer simultaneously, if the deputy position also requires Senate confirmation. Of course, very often these deputy positions are not subject to such confirmation and therefore a risk arises if the assistants have served for only a short period of time before the position becomes vacant.

Since the U.S. Constitution was ratified, the Senate’s role in consenting to the president’s human resources decisions has grown in scope and in time required. Presidentially appointed posts requiring Senate confirmation now number more than one thousand, and the average confirmation time for these positions has lengthened from a few months to almost a year.

In light of the difficulty in finding permanent replacements for Senate confirmed positions if Senate Republicans continue the consent blockade (or gain the majority at midterms), and in view of the remote chances of successful recess appointments after the Supreme Court’s Canning decision, more acting officials than ever before could be in office during the last two years of the Obama administration. While the situation creates some challenges, they are not insurmountable. Careful succession planning, process management and internal compliance will lead to a generation of successful “acting” executive branch leaders for the nation.

Rizzi and Borene are attorneys at Steptoe & Johnson LLP in Washington, DC. Their practice includes advising political appointees with respect to government ethics, financial disclosure, security clearance and other matters. Rizzi teaches government ethics at Harvard Law School and Borene serves on the Truman National Security Project’s Defense Council.