How Trump Has Filled High-Level Jobs Without Senate Confirmation Votes

Mar 9, 2020
Originally published on March 9, 2020 3:22 pm

The titles are a mouthful.

There's the deputy director exercising the authority of director for the National Park Service, and the senior official performing the duties of the director at U.S. Immigration and Customs Enforcement.

This is how President Trump is filling dozens of high-level jobs in the federal government without Senate confirmation. The administration leaves key jobs vacant at a given agency, while delegating the authority of those positions down to subordinates who do not need to be confirmed or even nominated for the jobs.

Trump has often said he likes installing "acting" officials because it gives him more flexibility. His administration has been sued over this, and recently lost a court case over the practice, when a federal judge found that it hired a top immigration official unlawfully.

Now the Trump administration is increasingly turning to the more obscure tactic that leads to those lengthy titles. It's known as delegation.

"That's the shocking thing — just how many positions are working because of these delegations," says Anne Joseph O'Connell, an expert on administrative law at Stanford Law School.

Why not just name acting directors and deputies to fill these open positions? The answer, O'Connell says, lies in a law known as the Federal Vacancies Reform Act, which lays out extensive rules about who can be appointed to serve in Senate-confirmed jobs, and for how long.

Federal Judge Randolph Moss ruled last week that the Trump administration violated the vacancies act when it filled the top job at U.S. Citizenship and Immigration Services. In that case, the administration hired immigration hardliner Ken Cuccinelli for a job that didn't previously exist, then immediately promoted him to run the entire agency as acting director.

In his ruling, Judge Moss referred to a long-running gag on The Office, the classic sitcom about bureaucratic absurdity, about the difference between "assistant regional manager" and "assistant to the regional manager." On The Office, the title difference doesn't really matter, the judge wrote, because either way, the manager's assistant isn't really in charge.

The Office / YouTube

But in the federal government, titles are serious business and they do signal who's in charge. The judge found that the Trump administration violated the vacancies act by creating a job for Cuccinelli that was "second in command in name only."

Cuccinelli still holds a top job in the administration. His Twitter account identifies him as the "acting deputy secretary" at the Department of Homeland Security. But technically, his new job title is much longer than that: senior official performing the duties of the deputy secretary.

Even Cuccinelli sees the humor in his "short little title," as he jokingly called it before a briefing at the Foreign Press Center in December.

"Of course, that acronym is SOPDDS," he deadpanned.

Also at the Department of Homeland Security, there's Randolph "Tex" Alles, who's serving as the senior official performing the duties of the under secretary for management. At the Department of the Interior, William Perry Pendley is serving as the deputy director of policy programs at the Bureau of Land Management, "exercising the authority" of the director.

Legal experts say there are several reasons the Trump administration might turn to delegation instead of putting officials in charge in an "acting" capacity.

"The vacancies act has time limits," O'Connell says. "But these delegations typically don't."

In most cases, O'Connell says you can hold the "acting" title in a job that requires Senate approval for only so long, usually about seven months. With delegation, there's no time limit. A subordinate can effectively take on the boss's responsibilities indefinitely.

William Perry Pendley at a conference for journalists in Fort Collins, Colo., last October. Pendley is serving as the deputy director of policy programs at the Bureau of Land Management, "exercising the authority" of the director.
Matthew Brown / AP

Cuccinelli defends the practice.

"That's the way the president's been forced to play the game," he said last week in an interview on "Fox & Friends." Cuccinelli and other Trump officials say titles don't matter, as long as the job is getting done. And they blame the Senate.

"The Trump administration has been somewhat frustrated with how long it takes to get people through the Senate," Cuccinelli said on Fox. "So they've had to use ... these alternatives that are legal, they're just less preferential to getting a full Senate appointment."

But the Trump administration has never formally nominated Cuccinelli — or many of these other controversial officials — for the jobs they're doing, so there's nothing for the Senate to vote on.

The administration's critics call that an illegal end run around the vacancies act. They say the administration is using this strategy to install and promote officials who would have difficulty being confirmed by the Senate because of their extreme views.

"The point of Senate advice and consent is to make sure that the people running these major agencies and bureaus are within the mainstream — that is, they're not fringe characters," says Peter Jenkins, a lawyer with the nonprofit Public Employees for Environmental Responsibility.

Jenkins says his group may take the Trump administration to court over the current head of the Bureau of Land Management.

"William Pendley, who's running BLM now, is a fringe character," Jenkins said.

Pendley serves as deputy director of policy programs at BLM. But thanks to delegation, he's also "exercising the authority" of the bureau's director.

Before coming to BLM, Pendley spent his career in the private sector trying to roll back environmental rules as the head of the Mountain States Legal Foundation. And he's questioned whether the federal government should own public lands at all.

"I did spend my legal career sparring with the government," Pendley told NPR. "And I represented ranchers, and miners, and loggers, and mountain climbers, and boaters. ... You name it, I represented 'em."

In a recent interview, Pendley said he was willing to serve on a temporary basis for as long as the president wants.

"Somebody's gotta sign the documents. And so somebody has to be given the authority by the secretary of the Interior to do just that," Pendley said.

Critics say there may be another reason the Trump administration is relying so heavily on delegation and acting officials.

"They want people running these bureaus who feel weak, who feel politically reliant on the White House," Jenkins says. That way, he explains, the Trump administration has a stable of high-level officials "that they know are loyal."

Trump is not the first president to get the job done by delegating authority down to a subordinate. The Obama administration relied on delegation extensively at the end of his second term, when senior officials were leaving the government for the private sector.

"It was a problem then too. And we called it out then too," said Rebecca Jones, Policy Counsel at the Project on Government Oversight, a nonprofit watchdog in Washington.

But Jones says the title shuffling has reached new levels of "gamesmanship" under the Trump administration.

"It's unconstitutional, because the Constitution requires that the Senate play a role in consenting or not consenting to the president's nominees," Jones said. "Major federal dollars being spent by these people. And we don't even know who they are."

Jones says the point of Senate confirmation is to vet the president's appointees, to find out who's really in charge.

National Desk Correspondent Kirk Siegler and Brooklyn Riepma, a National Desk intern, contributed to this report.

Copyright 2020 NPR. To see more, visit https://www.npr.org.

DAVID GREENE, HOST:

The Trump administration has been criticized for filling top jobs with temporary or acting officials. It's been sued over this and recently lost a court case over it. But the administration has another trick up its sleeve, one it's been using more and more to fill high-level jobs across the government without Senate confirmation. Here's NPR's Joel Rose.

JOEL ROSE, BYLINE: Let's start with a scene from "The Office," the classic sitcom about bureaucratic absurdity.

(SOUNDBITE OF TV SHOW, "THE OFFICE")

RAINN WILSON: (As Dwight Schrute) That's why you have an assistant regional manager.

STEVE CARELL: (As Michael Scott) Assistant to the regional manager.

WILSON: (As Dwight Schrute) Same thing.

CARELL: (As Michael Scott) No, it's not. It's lower.

ROSE: A federal judge recently referred to this running joke about job titles in a ruling against the Trump administration. In that case, the administration hired a top official into a job that didn't previously exist and then immediately promoted him to run an entire agency as acting director.

(SOUNDBITE OF TV SHOW, "THE OFFICE")

CARELL: (As Michael Scott) So effective immediately, I am promoting you from assistant to the regional manager to assistant regional manager.

WILSON: (As Dwight Schrute) So I guess this will just be my office.

CARELL: (As Michael Scott) No, no - title change only.

ROSE: On "The Office," titles don't really matter. But in the federal government, they're serious business. In that recent court case, the judge ruled that the Trump administration violated a federal law governing promotions. But here's the thing - that guy who was promoted, immigration hard-liner Ken Cuccinelli, still holds a top job in the administration, only this time the administration used a different tactic to get him into that job. Even Cuccinelli sees the humor in his new title.

(SOUNDBITE OF ARCHIVED RECORDING)

KEN CUCCINELLI: As you heard, that short little title - senior official performing the duties of the deputy secretary...

(LAUGHTER)

CUCCINELLI: ...Of course, that acronym is SOPTDOTDS. So...

(LAUGHTER)

ROSE: So he's, quote, "performing the duties," unquote, of the second in command at the Department of Homeland Security. But he wasn't technically promoted to that position. And Cuccinelli is not the only one with a mouthful of a title.

(SOUNDBITE OF ARCHIVED RECORDING)

MATT ALBENCE: My name is Matt Albence. I am the deputy director of ICE and the senior official performing the duties of the director.

WILLIAM PERRY PENDLEY: I'm William Perry Pendley, deputy director of policy and programs, Bureau of Land Management, exercising the authority of the director.

ROSE: Dozens of Trump administration officials have titles like these - the head of the Park Service, the general counsel at the Department of Education.

ANNE JOSEPH O'CONNELL: That's the shocking thing - just how many positions are working because of these delegations.

ROSE: Anne Joseph O'Connell teaches at Stanford Law School. She's an expert on administrative law. So we asked her, why all the long titles? Instead of delegating the top job to someone, why not just make them acting directors and deputies and so on? The answer, she says, is that federal law. It's called the Federal Vacancies Act (ph).

O'CONNELL: The vacancies act has time limits, but these delegations typically don't.

ROSE: In most cases, O'Connell says, you can hold the acting title in a job that requires Senate approval for only so long, usually about seven months. With delegation, there is no time limit. A subordinate can take on the boss's responsibilities indefinitely - just not the title.

(SOUNDBITE OF FOX NEWS BROADCAST)

CUCCINELLI: That's the way the president's been forced to play the game.

ROSE: That's Ken Cuccinelli again, speaking on Fox News. He and other Trump officials say titles don't matter as long as the job is getting done. And they blame the Senate.

(SOUNDBITE OF ARCHIVED RECORDING)

CUCCINELLI: The Trump administration has been somewhat frustrated with how long it takes to get people through the Senate, so they've had to use these alternatives that are legal. They're just less preferential to getting us a full Senate appointment.

ROSE: But remember the Trump administration has never formally nominated Cuccinelli or these other officials for the jobs they're doing, so there's nothing for the Senate to vote on. The administration's critics say this is not legal. They say it's a blatant end run around the vacancies act.

PETER JENKINS: The point of Senate advice and consent is to make sure that the people running these major agencies and bureaus are within the mainstream. That is, they're not fringe characters.

ROSE: Peter Jenkins is a lawyer with the nonprofit Public Employees for Environmental Responsibility. He says his group may take the Trump administration to court over the current head of the Bureau of Land Management.

JENKINS: William Pendley, who's running BLM now, is a fringe character.

ROSE: You heard from Pendley earlier. He's deputy director of policy programs. But thanks to delegation, he's also, quote, "exercising the authority of the bureau's director." Pendley spent his career trying to roll back environmental rules and has questioned whether the federal government should own public lands at all.

(SOUNDBITE OF ARCHIVED RECORDING)

PENDLEY: I did spend my legal career sparring with the government. You know? And I represented ranchers and miners and loggers and mountain climbers and boaters. You name it; I represented them.

ROSE: In an interview, Pendley told NPR he's willing to serve on a temporary basis for as long as the president wants.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

PENDLEY: Somebody has got to sign the documents, and so somebody has to be given the authority by the secretary of the interior to do just that.

ROSE: Trump is not the first president to get the job done by delegating authority down to a subordinate. The Obama administration did this a lot at the end of his second term, when senior officials were leaving the government for the private sector. Rebecca Jones is with the Project on Government Oversight, a nonprofit watchdog in Washington.

REBECCA JONES: It was a problem then, too, and we called it out then, too.

ROSE: But Jones says the title shuffling has reached new levels of gamesmanship under the Trump administration.

JONES: It's unconstitutional because the Constitution requires that the Senate play a role in consenting or not consenting to the president's nominees. Major federal dollars being spent by these people and we don't even know who they are.

ROSE: Jones says the point of Senate confirmation is to vet the president's appointees to find out who's really in charge.

Joel Rose, NPR News, Washington. Transcript provided by NPR, Copyright NPR.