More than halfway through President Trump's first term, the Interior Department remains rife with key vacancies despite a federal law that suggests the agency should be hobbled by the lack of leadership.
Instead, Interior hasn't so much as slowed down as the administration presses ahead with its "energy dominance" agenda and regulatory rollbacks.
Observers suggest that's because the 1998 Federal Vacancies Reform Act (FVRA) — passed to ensure that the executive branch would put forth nominees in a timely fashion rather than let key positions be filled with unvetted political appointees — is little more than a paper tiger.
"Adding more teeth to the Vacancies Act is absolutely necessary," the Project on Government Oversight's policy counsel Becca Jones told E&E News.
Under the law, the executive branch is limited to using an acting official in any advice-and-consent role at an agency for 210 days, or for a full 300 days beginning on the first day of a new presidential term. During that time, the president is expected to nominate a new individual to fill the role on a permanent basis with the Senate's endorsement.
Should that temporary allowance expire without the confirmation of a first or second nominee — which triggers an additional 210-day period for an acting official — any decisions made by the temporary official "will have no force or effect" and may be challenged in federal court.
But such instances are far and few between: A Congressional Research Service report on the FVRA notes that between 1998 and 2018, only 15 cases related to the law have been decided.
Moreover, CRS legislative attorney Valerie Brannon noted that thin legal precedent has not established how a court might roll back decisions made by temporary officials who are found to have violated the FVRA.
"Even in the context of these lawsuits, it is not always entirely clear what relief a court may afford a regulated entity, if the court concludes that an acting officer has violated the Vacancies Act," Brannon wrote. "There is little case law interpreting what it means for an agency action to have 'no force or effect' in the context of the Vacancies Act."
But Peter Jenkins, senior counsel for Public Employees for Environmental Responsibility, said the scope of potential FVRA violations in the Trump administration is much more significant than those considered in prior lawsuits.
"The pattern and the extent of abuse under FVRA vastly exceeds what may have processed through the courts before," Jenkins said. "The pattern at Interior is so sweeping — and the delegation of authority is now 2 ½ years old — and the question is whether that can stand up to scrutiny."
While PEER has raised the specter of filing its own lawsuits over the vacancies at Interior — with top posts at agencies like the Bureau of Land Management and Fish and Wildlife Service still unfilled nearly 29 months into the Trump administration — Jenkins said another option is for senators to sue the president (Greenwire, Sept. 12, 2018).
He pointed to a lawsuit filed by three Democratic senators last year after Trump appointed former Attorney General Jeff Sessions' chief of staff, Matthew Whitaker, to serve as acting attorney general. The lawmakers argued that the move violated the appointments clause of the Constitution (E&E News PM, Nov. 19, 2018).
"It's not a headless government; it's a neckless government," asserted Paul Light, a public policy professor at New York University. "There's no accountability, and something is going to go wrong at the bottom of an agency ... and we're going to say, 'Oh, my God. Why didn't they know?'"
Critics of the Trump administration's unusual reliance on temporary officials highlight a recent decision issued in the U.S. District Court for the Central District of California.
In February, a federal judge rejected the government's defense of an Obama-era decision at the Bureau of Indian Affairs. The case centered on the agency's acquisition of 1,400 acres of land in trust for the Santa Ynez Band of Chumash Indians.
In that lawsuit, the plaintiffs — Anne Crawford-Hall, San Lucas Ranch and Holy Cow Performance Horses — argued that then-Principal Deputy Secretary for Indian Affairs Lawrence Roberts lacked the authority to deny an appeal of the agency's notice of decision to acquire the land.
At the time, Roberts was the highest acting official at BIA since Assistant Secretary for Indian Affairs Kevin Washburn had resigned in late 2015, a little more than a year earlier.
In a 36-page ruling that offered a detailed review of U.S. Code provisions, District Judge Stephen Wilson agreed with the plaintiffs in the case.
"By purporting to issue a final decision on an appeal in the absence of the Assistant Secretary, Principal Deputy Roberts acted without authority in performing an exclusive function or duty of the Assistant Secretary and committed an ultra vires act in violation of the FVRA and Interior regulations," Wilson wrote.
The ruling also vacated the government's decision to acquire the tribal lands, pending further review by the agency.
But nearly a year earlier, the government won a ruling in a separate challenge that was also related to vacancies at the Bureau of Indian Affairs.
In that case in the U.S. District Court for the District of Columbia, Stand Up for California! v. U.S. Department of the Interior, a nonprofit group and individual plaintiffs sued the government over its attempt to acquire 36 acres of land for the Wilton Rancheria tribe in Elk Grove, Calif.
District Judge Trevor McFadden wrote in his February 2018 ruling that "this case involves a uniquely Washingtonian question: When can a federal employee act in the place of an absent agency or unit head? This issue becomes acute during presidential transitions, when thousands of senior political appointees exit the government, often leaving their positions vacant for months or even years."
McFadden ultimately ruled in favor of the government, finding that Roberts was allowed to make final decisions on "fee-to-trust" land acquisitions.
"It turns out that, in practice, there are very few duties that cannot be delegated to an 'acting' officeholder, the second-in-command (the 'first assistant' to use the FVRA's term), or even another official who acts in the place of the principal pursuant to agency regulations or orders," McFadden wrote.
'Exercising the authority of the director'
Legal observers suggest those recent FVRA-related court rulings have not addressed a particular quirk of the current Interior administration: reliance on a 1950 statute to keep long-empty posts staffed.
In a practice that began with former Interior Secretary Ryan Zinke, the agency has established temporary agency heads who are "exercising the authority of the director," rather than serving with official "acting director" titles.
Interior has defended the practice, asserting that its secretary can delegate the responsibilities of any confirmed post under the Reorganization Plan No. 3 of 1950, part of the U.S. Code.
"The secretary has delegated the authorities of various roles in order to comply with federal law regarding how to fill vacant positions that require Senate confirmation. The department is hopeful that all of our nominees will be confirmed as quickly as the Senate is able," Interior spokeswoman Faith Vander Voort told E&E News.
Vander Voort said reliance on the 1950 statute is intended to address the limited period "acting basis" officials are permitted to serve in place of confirmed appointees.
But, she added, officials are tasked with only "non-exclusive functions" when serving in those roles.
"After that time period, if there is still no Senate-confirmed appointee, the law requires the head of the federal department to fulfill the obligations of the role," Vander Voort said.
She added: "However, recognizing the practical difficulty of this, the VRA permits a department head to delegate to a subordinate the authorities and duties of such an office that are not otherwise required by law to be performed exclusively by the official who would inhabit such an office."
'The nuclear option'
The Trump administration has made strides in recent weeks in filling long-empty posts, including the nomination of Daniel Jorjani to serve as Interior solicitor, Mark Lee Greenblatt to be inspector general and Robert Wallace to be assistant secretary for fish, wildlife and parks (E&E News PM, May 3).
But government watchdogs suggest the extended absences should prompt Congress to strengthen the FVRA — and curb executive branch tendencies to violate the spirit, if not the letter, of the law.
The current law "is very passive, and it requires someone with standing to actually take action and challenge it in court," the Project on Government Oversight's Jones said.
Instead, POGO and Protect Democracy have urged lawmakers to consider changes to require the executive branch to be more transparent to the public.
Among the amendments, the watchdog groups have proposed a "proactive reporting structure," with the Office of Personnel Management required to generate a vacancy report each pay period. Currently, agencies must report their vacancies to the Government Accountability Office, with little risk for failing to do so.
POGO and Protect Democracy likewise endorsed requiring each agency head to specify the "nondelegable functions and duties of the office and the title of the first assistant to the role" when reporting a vacancy, to make clear what actions are being assigned to acting officials.
The groups have also called for language to specify whether the office of an official who is fired by the president — rather than resigns or dies while in office — also triggers the Vacancies Act.
"These little loopholes make themselves apparent in real life," Jones said, adding that POGO is urging lawmakers to take up the subject: "It would be a great bipartisan initiative."
But NYU's Light proposed a more extreme penalty when the executive branch fails to nominate candidates in a timely fashion: converting political appointments to career positions.
"That's the nuclear option in an era of nuclear options," Light said. "A president who cannot fill a job, or at least get a nomination to Capitol Hill within 210 days for a Senate advice-and-consent position, that position should no longer be allowed. Would that wake the president up to it? I think so."