Note: this article, featuring Government Accountability Project, was originally published here.
Agencies’ Leadership Vacancies Tied to Poor Pandemic Response
Washington, DC, April 14, 2020—Today 18 civil society organizations that work on government accountability, health, environmental protection, and other concerns urged key Senators to hold the Trump Administration to its obligations to fill the key holes in the Federal government and seek Senate confirmation for agency leaders who require confirmation by law. At a crucial time when highly-effective agencies are vital, the groups’ letter pointed to leadership vacancies across numerous agencies as harming their basic functioning. They described the Administration’s fumbling response to the coronavirus pandemic as a symptom of this vacancies crisis that has built up over the three years since Mr. Trump was installed.
The signers urged the Chairs and Ranking Members of the Senate Committees with jurisdiction over nomination to reassert their prerogative under the Constitution’s Appointments Clause (Article II, Section 2) and compel the Administration to seek their “advice and consent” for leadership nominees.
An array of key pandemic response positions are either vacant or filled by temporary acting officials. They include, for example, the Department of Homeland Security’s Secretary, Deputy Secretary, and Undersecretary for Management and numerous top roles at the Federal Emergency Management Agency. The same is true in the Department of Health and Human Services, also at the forefront of the coronavirus response, in which the Assistant Secretary for Planning and Evaluation and Assistant Secretary for Financial Resources are both “temps”. Other pandemic-connected positions that the Administration has not filled with a permanent, Senate-confirmed leader include: the State Department’s Assistant Secretary for European and Eurasian Affairs and numerous ambassadorships; the Administrator of the Occupational Safety and Health Administration; the Agency for International Development’s Assistant Administrator for Global Health, Associate Administrator for Relief, Response, and Resilience, Assistant Administrator for Asia, and Associate Administrator for Strategy and Operations.
“At one of the toughest moments our country has ever faced we have major federal agencies with organization charts that look like Swiss cheese,” said Peter Jenkins, senior counsel of PEER. “The COVID-19 disaster is no time for an administration to rely on weak ‘temp’ leaders and keep ignoring the legitimacy provided by Senate confirmation as the Constitution requires.”
Four of the Inspectors General offices assigned to the Pandemic Response Accountability Committee are vacant and led by unconfirmed “actings.” That Committee, which President Trump recently altered to suit his liking, was created by the CARES Act to oversee the more than two trillion dollars in pandemic relief spending.
The Administration can fill leadership positions with temporary acting officers under the Federal Vacancies Reform Act (FVRA). But, no modern president has come close to relying on “actings” to the sweeping extent that President Trump has. The NGO letter also listed several abuses of the FVRA, in which improperly-designated lower officials are allowed to run major bureaus such as the National Park Service (whose pandemic response has been chaotic) and others. A recent D.C. District Court decision struck down immigration restrictions that were issued by Ken Cuccinelli, who now wears the improbable title: Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services. Judge Randolph Moss ruled that Mr. Cuccinelli acted illegally notwithstanding his “acting” title semantics. Because of his FVRA violations the immigration restrictions he issued were deemed “without force or effect.”
The NGO letter cited to a New York Times analysis of March 26th that similarly found: “Empty slots and high turnover have left parts of the federal government unprepared and ill equipped for what may be the largest public health crisis in a century, said numerous former and current federal officials and disaster experts.”
The NGO letter asks the Senators to take these concrete steps:
- Reassert your constitutional Advice and Consent prerogative in a bipartisan letter to the White House seeking qualified nominees for agencies that are key to the coronavirus pandemic;
- Consider refusing to cooperate on key Administration requests before your committees unless the President offers qualified nominees for confirmation, or appoints proper “acting” officials under FVRA, for key leadership positions within your jurisdiction;
- Ask the agencies’ Inspector Generals and the Government Accountability Office (GAO) to identify ongoing FVRA violations including, but not limited to, agency failures to report vacancies to GAO as required by FVRA; and,
- Pass legislation to close loopholes in the FVRA and to streamline the confirmation process in order that future Administrations will not repeatedly avoid the safeguards provided by the Senate’s advice and consent process.
The signing groups are:
Public Employees for Environmental Responsibility (PEER); Project On Government Oversight (POGO); Whistleblowers of America; ACORN8; Government Accountability Project (GAP); Jahn Research Group; National Federation of Federal Employees; Government Executives International; The Data-Driven Institute; Senior Executives Association; Professional Managers Association; Citizens for Responsibility and Ethics in Washington (CREW); Center for Biological Diversity; Western Watersheds Project; Union of Concerned Scientists; Constitutional Accountability Center; Jacobs Institute of Women’s Health; Revolving Door Project