…and he (the President) shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. – US Constitution, Article 2, §2, Paragraph 2-3
Vacant Chairs
The President of the United States has his Cabinet. It is made up of the heads of the departments of the executive branch of government. They act as the President’s formal advisors, and the structured way for him to carry out the main duty of the President, to execute the laws of the United States. Of the twenty-two Cabinet members (including the President and the Vice President) currently five are “acting” members, not officially confirmed for their jobs. This includes the Department of Defense, now on its second “acting” leader, the Department of Homeland Security, and the President’s own Chief of Staff.
What is even more concerning is on the next managerial level down. In the Department of Homeland Security alone with its “acting” secretary: the Emergency Management Agency (FEMA), Immigration and Customs Enforcement (ICE), Citizenship and Immigration (USCIS), and the Border Patrol (CBP) all have “acting” leaders. The entire top leadership of the Department is filled with “temp jobs.” No wonder the Trump Administration seems to be unable to deal with issues on the border.
Dodging Accountability
The President has made it clear he likes “acting” agency leaders. He says it gives him flexibility in decision-making. It also makes them more directly accountable to him. But by refusing to send his appointments for confirmation to the US Senate, as required by the Constitution, he is avoiding Constitutional accountability. The Senate confirmation process allows individual Senators the opportunity to question candidates, and it also presents the chance to voice their concerns with Administration policies. And, it allows the Senators to say “no” to candidates who are unacceptable. They have no such voice with the “acting” administrators.
Imagine if the entire leadership of Homeland Security were brought under Congressional scrutiny today. Both Democrat and Republican Senators would demand detailed information about the border crisis, detention centers, and ICE raids. The horrific decisions made daily at the border would be on display for all America. That’s not a drama the Trump Administration wants further out in the public.
Perhaps even more significantly, is the vacuum at the top of the Defense Department. The current acting Secretary, formerly Secretary of the Army, Mark Esper, replaced the former acting Secretary, the former Deputy Secretary. The last Senate confirmed leader, Jim Mattis, resigned in December. In addition, the military itself is in a leadership transition, with the Chairman and Joint Chairman of the Joint Chiefs retiring. Two other four star generals are being forced into retirement because of their personal actions.
At this moment in history, as the United States is facing crises in the Middle East with Iran, in Asia with North Korea, and the ongoing interplay with Russia and China; who’s in charge at Defense?
Who’s Accountable
Acting Secretaries and directors allows the agencies themselves to avoid accountability. The person in charge isn’t there “permanently,” and the agency can deflect criticism. And should there be a failure, then the “acting” is gone, and another “acting” put in place.
In a larger sense, it’s Congress’s fault. The Federal Vacancies Reform Act of 1998, passed by Congress and signed by President Bill Clinton, gave the President multiple options when a vacancy occurs. He can “follow procedure” and appoint a Senate confirmed first deputy to lead the agency until the Senate confirms a new one. Or he can move a Senate confirmed person from another appointment to “act” in this one. Or, he can raise a senior employee of the agency to the role.
And of course, Senate confirmation is no guarantee of an accountable administrator. Attorney General William Barr is proof if that: his Senate confirmation sailed through, even though he continues to show his absolute willingness to subrogate the Department of Justice to the political needs of the President.
The Grand Strategy
Those acting leaders can only serve for 210 days. How can these agencies make long term plans, set annual goals, and make systemic changes when they are led by “temps?” It places them in a permanent state of instability. They deal with issues on a day-to-day plan, rather than a long-term approach. And that seems to be the entire approach of the Trump Administration.
They are running the nation from “the seat of their pants.” These “temp job” agencies are just the most obvious examples of their “grand strategy:” not having a strategy.
