Is It Time to Reform the Federal Vacancies Reform Act?

On Jan. 6, 2019, President Trump said he was in “no hurry” to get his cabinet members confirmed: “I sort of like ‘acting’ [because] it gives me more flexibility; do you understand that? I like ‘acting.’” He meant it. Trump has had acting officials in top positions so often that across 22 Cabinet-level jobs, acting officials have served a total of 2,736 days—more than seven years of combined time.

The Federal Vacancies Reform Act of 1998 (FVRA) made changes to existing laws addressing vacancies in high-level offices in the executive branch with the goal of creating a single process to govern the performance of the duties of such offices whenever a Senate-confirmed official has died, resigned or is otherwise unable to perform his or her duties. The Appointments Clause of the Constitution requires high-level officers of the United States to be appointed through nomination by the president, with the advice and consent of the Senate. The FVRA is meant to serve as a check on a president’s ability to utilize gamesmanship to avoid the advice and consent of the Senate for high-level officers.

As Trump’s insistence that “acting … gives me more flexibility” might suggest, the president has made a great deal of use of the FVRA of late, relying heavily on it to fill open spaces in the administration. In some cases, he has pushed the limits of what the law allows. And in one instance, a judge has found that the president’s maneuvering outright violated the FVRA.

On March 1, Judge Randolph Moss of the U.S. District Court for the District of Columbia ruled that the appointment of Kenneth Cuccinelli as acting U.S. Citizenship and Immigration Services (USCIS) director was unlawful. After Trump appointed Cuccinelli to the newly created position of principal deputy director of USCIS in June 2019, the administration then rearranged the line of succession at the agency such that the principal deputy director became the most senior successor to the vacant USCIS director position. This allowed Trump to promote Cuccinelli to the acting director position, seemingly in compliance with FVRA requirements. But the court found that Cuccinelli’s appointment did not comply with the FVRA because “[h]e never did and never will serve in a subordinate role—that is, as an ‘assistant’—to any other USCIS official.”

The Cuccinelli decision arrived in the midst of another controversy over Trump’s use of the FVRA. Last summer, Trump backed off his announced intention to nominate Rep. John Ratcliffe to the position of director of national intelligence (DNI) after it became clear he would have problems being confirmed by the Senate. In February, he appointed a loyalist, Richard Grenell, as acting DNI, and then a few weeks later he renominated Ratcliffe to the position. The move ensures that Trump will have a loyalist in place in the position for the foreseeable future—certainly through the November 2020 presidential election and potentially even longer.

In appointing Grenell, has the president acted consistently with the FVRA and the Appointments Clause? If Congress has a different view of how these authorities should be used by the president, what action could it take?

The DNI Position

On Feb. 19, the president tweeted that he was appointing Grenell, currently ambassador to Germany, as the acting DNI. Grenell has no experience working in the intelligence community, and the appointment was viewed by many as a move by the president to install someone who is staunchly loyal to him. There is also a question about whether some of Grenell’s prior work may have run afoul of the Foreign Agents Registration Act.

The appointment followed the dismissal of a different acting official, Joseph Maguire, who had been appointed as acting DNI on Aug. 16. Maguire’s appointment was unambiguously legal under the FVRA: Maguire had been confirmed by the Senate as the head of the National Counterterrorism Center in December 2018, meaning that the president could appoint him to an acting role. Maguire’s resignation as acting DNI came shortly after Trump rebuked him following a briefing to the House Intelligence Committee by an employee in the Office of the Director of National Intelligence (ODNI) who stated that Russia was interfering in the 2020 election in favor of Trump.

Maguire, in turn, had been appointed to replace DNI Dan Coats, who resigned on Aug.15, following two years of disagreements with Trump about Russian interference in the 2016 election. Coats’s deputy, Sue Gordon—who would have assumed the role of acting DNI following his resignation under the FVRA—also resigned at that time, because it was made clear to her that Trump did not want her to fill the role.

Gordon’s departure from that position obviated another relevant law: As Bobby Chesney pointed out last year, Congress created the position of DNI and the associated office in a 2004 statute called the Intelligence Reform and Terrorism Prevention Act (IRTPA). The law included a provision addressing the question of who can serve as the acting DNI in the event of a vacancy. The provision, codified at 50 U.S.C. § 3026(a)(6), states:

(6) The Principal Deputy Director of National Intelligence shall act for, and exercise the powers of, the Director of National Intelligence … during a vacancy in the position of Director of National Intelligence.

Gordon’s resignation meant that this statute no longer prevented Trump from filling the role first with Maguire, then with Grenell. Following Grenell’s appointment, the president announced on Feb. 28 that he would nominate Texas Republican Rep. Ratcliffe as the next DNI. This is the second time that Ratcliffe has been named for the position: Trump first declared plans to nominate him in July 2019, following Coats’s resignation. But the president backed off that plan in August once it became clear that Ratcliffe’s nomination would face opposition from some Senate Republicans, and Maguire ended up serving for a lengthy period as acting DNI.

But perhaps the second time’s the charm. On March 2, Ratcliffe’s nomination for the DNI position was formally submitted to the Senate. Chairman of the Senate Intelligence Committee Richard Burr issued a statement of support for Ratcliffe, despite the lukewarm response from the Republican caucus during the summer.

How Long Can Grenell Serve?

The FVRA gives the president three options to temporarily fill vacancies in senior government positions. He may choose the “first assistant” to the vacant office, choose anyone currently holding a Senate-confirmed position in the executive branch, or choose a non-Senate-confirmed senior employee who has been serving in the same agency as the vacant office for at least 90 of the previous 365 days. In Grenell’s case, the president went with the second option, taking advantage of Grenell’s confirmation as ambassador to Germany in April 2018 by a 56-42 vote in the Senate.

When Grenell was first appointed as acting DNI, there was a question of how long he could serve in the role under the FVRA. Section 3346 of the law provides that person may serve “for no longer than 210 days beginning on the date the vacancy occurs” or, “once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.” These two periods run independently and concurrently, meaning that Ratcliffe’s nomination did not stop the 210-day clock that began running at the date of Coats’s departure on Aug. 15. Swapping out one acting official for another doesn’t restart the clock, either, which means that the 210-day period beginning in August will run out on March 12. But as a practical matter, the president’s submission of Ratcliffe’s nomination on March 2 renders the 210-day period irrelevant, because Grenell can continue to serve while the Senate considers the nomination.

The bottom line is that unless Ratcliffe is confirmed, the president could easily keep Grenell in the position of acting DNI essentially as long as he wishes to do so—through a second inauguration and well beyond. That’s a problem because other parts of the executive branch and Congress depend on the DNI to provide credible, unbiased intelligence information to support policy decisions—not simply do the president’s political bidding. There’s a reason the president prefers acting officials: An acting official not confirmed by the Senate to this sensitive position has very little accountability to the Senate or to Congress more generally.

The timing of when the Senate will act on Ratcliffe’s nomination is entirely up to Senate Majority Leader Mitch McConnell, who could choose—or be persuaded by the president—to sit on the nomination. Grenell could serve as acting DNI during that entire time. All nominations would be returned at the end of the adjournment of Congress (which typically occurs in late December or early January at the end of the second year of the two-year Congress). This course of action would allow Grenell to remain as acting DNI through the 2020 presidential election, through the adjournment of the 116th Congress in December or January, and then for another 210 days beyond that if Trump wins reelection. If there is a new president, a different part of the FVRA would apply: Vacancies that exist during the 60-day period following such a transitional inauguration day get their own, new 210-day clock. That 210-day clock would begin either 90 days after inauguration day or 90 days after the date on which the vacancy occurs.

The president could at any moment withdraw the nomination, in which case a whole new 210-day period would be triggered during which Grenell could serve as acting DNI. If, thereafter, the president submitted a second nomination to the Senate, Grenell could serve during the pendency of that nomination as well. If that second nomination is rejected, returned or withdrawn, then Grenell could continue for one final 210-day period.

Now suppose the Senate deals with Ratcliffe’s nomination quickly and rejects him on Friday, March 13. Grenell could remain for an additional 210 days thereafter, which is Oct. 9, 2020. Trump could nominate someone else for DNI on Oct. 8, allowing Grenell to serve as acting through the pendency of that nomination. Now, suppose the Senate acts extremely quickly on that second nomination and rejects the second nominee the very next day, on Oct. 9: 210 days thereafter is May 7, 2021—more than a year from now.

The Necessity of Reform

The DNI plays a fundamentally inward-facing role in the U.S. government, coordinating among the various parts of the intelligence community and providing intelligence to the president, other senior officials and Congress. As such, there is no obvious path for a private individual to have standing to challenge the legality of the president’s actions as there was for Cuccinelli’s appointment as acting USCIS director. In that case, the plaintiffs were a nonprofit organization providing legal services to refugees and five Honduran asylum seekers, whom USCIS had ordered to be subject to expedited removal under policies put in place by Cuccinelli.

There are no signs of discomfort with the president’s actions among Senate Republicans. For example, asked what had changed since last summer, Sen. Burr said on March 2, “There was a different pathway in the Senate. I don't think anybody has changed their opinion of John Ratcliffe. What changed is the pathway to get somebody confirmed. If Democrats want to vote against him and have (Richard) Grenell stay on as acting is fine with me.”

It is worth noting the different tone of the 1998 report, by the Committee on Governmental Affairs of the Senate, when the FVRA was reported from the committee to the full Senate:

In short, in light of various administrations’ noncompliance with the Vacancies Act and a recent court decision undermining its operation, it is imperative that Congress enact legislation to restore constitutionally mandated procedures that must be satisfied before acting officials may serve in positions that require Senate confirmation. The issue is not simply the prerogative of the Senate. Like other structural constitutional provisions, the Appointments Clause was designed to protect the liberty of the people. Although the President has the sole power to nominate, as a single officer may feel a greater sense of duty in selecting an individual for consideration to a particular post, the “the necessity of [the Senate’s] concurrence would have a powerful, though in general a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. And, in addition to this, it would be an efficacious source of stability in the administration.” Federalist LXXVI (Hamilton). Legislation is needed to restore these goals of the Founders.

The last round of reforms in 1998 were a response to presidential gamesmanship. President Clinton decided to make Bill Lee the “first assistant” to the assistant attorney general in charge of the Department of Justice’s Civil Rights Division and thereafter name him the acting assistant attorney general after the Senate declined to confirm Lee to that job. The existing statutory framework, certain members decided, allowed the president to play too many games to circumvent the Constitution’s Appointments Clause.

The purpose of the FVRA was to create a “clear and exclusive process” to govern the performance of duties of offices in the executive branch that are filled through presidential appointment by and with the consent of the Senate when a Senate confirmed official has died, resigned, or is otherwise unable to perform the functions and duties of the office. The Committee Report for the FVRA makes clear that the impetus for reform in the past was court cases that limited the applicability of the Vacancies Act as well as interpretations of the law by the Department of Justice that limited its applicability:

In recent decades, the Department of Justice has argued that its advise and consent positions are not covered by the Vacancies Act. It construes its enabling legislation, and now the enabling legislation of other departments, as exempting its compliance with the Vacancies Act. Specifically, the Department of Justice maintains that where a department’s organic act vests the powers and functions of the department in its head and authorizes that officer to delegate such powers and functions to subordinate officials or employees as she sees fit, such authority supersedes the Vacancies Act’s restrictions on temporarily filling vacant advice and consent positions, allowing for designation of acting officials for an indefinite period, even without submitting a nomination to the Senate to fill the position on a permanent basis. This interpretation of the law is wholly lacking in logic, history, or language, as evidenced by repeated opinions of the Comptroller General.

As Steve Vladeck pointed out almost two years ago, the purpose of the FVRA was to give the president flexibility to deal with unexpected vacancies—not to create vacancies himself and sidestep the Senate’s advice and consent role. The FVRA assumes that a president will act in good faith to nominate officers and, as such, seems to have given the president way too much leeway to play games with its provisions. As Vladeck wrote:

Congress thereby gave the president far more flexibility than it probably meant to (and certainly more than it needed to), perhaps assuming that presidents would act responsibly—and that politics would prevent the president from taking advantage of the broad flexibility provided by the statute as a structural end-run around the Senate’s constitutional advise-and-consent role.

The constitutional basis for reform was explained thus:

The selection of officers is not a presidential power. The President may choose whom he wishes to nominate, but the Senate has the power to advise and consent before those nominees may assume office. The Appointments Clause ‘‘is more than a matter of ‘etiquette or protocol;’ it is among the significant structural safeguards of the constitutional scheme.’’ Edmond v. United States, 117 S. Ct. 1573, 1579 (1997). The Appointments Clause was adopted against a historical background: ‘‘The ‘manipulation of official appointments’ had long been one of the American revolutionary generation’s greatest grievances against executive power because ‘the power of appointment to offices’’’ was deemed ‘‘the most insidious and powerful weapon of eighteenth century despotism.’’ Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 883 (1991) (citations omitted).

If a sufficient number of senators decided to take a position similar to the one articulated by their 1998 colleagues, and wanted to act to protect their power embodied in the Appointments Clause, what could the Senate do? What about Congress as a whole?

The answer is not obvious. As I wrote a year ago, in theory, Congress could look to its other constitutional tools—like refusing to move forward on legislation the president needs to achieve his agenda, or withholding support for administration programs with the power of the purse, or initiating impeachment proceedings. But the Trump administration has no discernable legislative agenda. And the president has already executed an end-run around the annual appropriations process to build his coveted wall at the southern border by declaring a national emergency. Withholding must-pass legislation like the recent COVID-19 appropriation would be not only politically untenable but dangerous to Americans.

It might be possible to enact modest process reforms that could put more pressure on acting officials. On Feb. 27, Democratic Rep. Robin Kelly introduced a bill titled the National Security Transparency Act, which would require unconfirmed heads of the Department of Defense, the Department of Homeland Security, and the intelligence offices (CIA, the National Security Agency and ODNI) to testify before their respective oversight committees every 45 days, alternating between the House and Senate oversight committees. If, somehow, this bill became a law, it is still unclear what enforcement mechanism either chamber could deploy to ensure compliance.

What about reforming the FVRA more broadly? The story of the DNI position makes clear that the FVRA gives the president far too much discretion. It is dependent on the president engaging in a good-faith effort to nominate qualified individuals for Cabinet posts and in general acting in a way that respects the constitutional underpinnings of the Appointments Clause. As a result, the FVRA has enabled the current situation: An unqualified acting official like Grenell, whom many fear was installed in order to do the president’s political bidding rather than because of his expertise in national intelligence matters, may serve for months as DNI. On top of that, the president has nominated someone who seemed unconfirmable less than six months ago. Among many other examples, the FVRA also made it possible for the president to name Mick Mulvaney as acting director of the Consumer Financial Protection Bureau despite there being a Senate-confirmed deputy director. It also allowed Trump to appoint Matthew Whitaker, previously Attorney General Jeff Sessions’s chief of staff, as acting attorney general following Sessions’s departure, despite the fact that Deputy Attorney General Rod Rosenstein was Senate confirmed and available.

Proposed changes to the legislation could include shortening the 210-day period during which an acting official can serve, disallowing multiple contiguous such periods, and removing the provisions that allow any Senate-confirmed individual to fill a head-of-agency slot. Vladeck proposed these types of sensible reforms almost a year ago. At this point, the likelihood of any of these proposals being implemented is low: Any such reform would require not only House and Senate majorities but probably also veto-proof super majorities due to a high likelihood of President Trump vetoing the measure.

But it is not even clear that these types of reforms would work with respect to the current situation at ODNI. For example, Vladeck suggests reducing an acting officeholder’s powers if the president refuses to submit a nominee to permanently hold that office. This might work well to constrain a typical president—but it is not clear that Trump would be particularly concerned about a DNI unable to perform his or her official functions well. Back in July, Trump said he thought the U.S. intelligence community had “run amok” and that Ratcliffe would “rein it in.” In other words, threatening to curtail official authorities and abilities in the intelligence community may not create pressure on or leverage over a president who is not interested in what the intelligence community has to offer.

Meaningful reforms may need to wait until there is a president who will support them, or at least not oppose them. Ultimately, however, it is worth recognizing that the constitutional system depends on the president honoring, on some level, the fact that Congress and the White House share responsibility over high-level appointments. Treating the shared duty of accountability for high-level executive branch appointments as a perpetual game of cat-and-mouse, loophole-finding gamesmanship is not a recipe for the transparency and accountability the U.S. Constitution was designed to achieve.