Actings

Abstract

Temporary leaders in federal agencies—commonly known as “actings”—are a fixture of the modern administrative state. These acting officials have recently come under fire, particularly after President Trump ousted Jeff Sessions and installed Matthew Whitaker as acting Attorney General in November 2018. Yet despite their ubiquity and the fervent criticism we know almost nothing about them.

This Article examines open questions about acting officials through empirical, legal, and normative frameworks. Empirically, it provides new data on acting department heads from the Reagan Administration through President Trump’s third year. The data show that President Trump has turned to significantly more acting cabinet secretaries than prior Presidents. Using two agencies as case studies, this Article also examines acting officials outside the cabinet and discovers similar trends. But the data also reveal that previous administrations relied considerably on temporary leaders, particularly at the start and end of presidential terms.

These empirical findings inform the analyses of a slew of tricky constitutional and statutory questions. This Article addresses open constitutional questions about who can serve in the federal government’s highest positions and for how long. It also examines undecided statutory issues, such as how the Federal Vacancies Reform Act of 1998 (Vacancies Act) interacts with agency-specific statutes, whether the Vacancies Act covers vacancies created by firings, and whether a “first assistant” can be named after the vacancy and then serve in an acting role. Finally, this Article highlights two thorny areas that have both constitutional and statutory components—the delegation of authority to lower-level agency officials and the applicability of removal restrictions to acting heads at the Consumer Financial Protection Bureau and the Federal Housing Finance Agency.

The new data raise additional questions about the conventional criticisms of acting officials as “substitute teachers,” or worse, “workarounds,” to the Senate confirmation process. This Article examines these criticisms and suggests that, while the concerns have some merit, acting officials provide needed expertise and stability––in some contexts, the Senate may prefer them to the President’s nominees.

In light of its empirical, legal, and normative findings, this Article then proposes several statutory fixes to change how the executive branch employs acting officials and delegations of authority in the face of staffing vacancies—balancing concerns over accountability and the need for the government to function.

Ultimately, this Article calls for thinking about actings and traditional appointees together. So many commentators have called for Congress to reduce the number of Senate-confirmed lower-level positions, mostly in agencies covered by the Vacancies Act. By largely ignoring temporary agency leaders, the forest may have been missed for the trees. Practically, by their prevalence, Presidents’ extensive use of acting officials has achieved what Congress largely refuses to do.

Keywords: political appointments, acting officials, delegation, administratve law, constitutional law, Federal Vacancies Reform Act

JEL Classification: K23