I have been thinking about actings for 10 years. IMHO, Whitaker legally can be acting AG. But I think Vacancies Act should be changed in following ways. Am close to posting article, Actings, on reforms (as well as legal & policy issues, along with data on recent practices). 1/
These reform ideas come from the uproar on Whitaker, but also from the confusion surrounding the firing of the VA secretary, the competing actings at CFPB last Thanksgiving week, and other past practices (under both Trump and Obama). 2/
These ideas take into account that the modern appointments process is long. Here is my earliest take on delays (in nominating and confirming). Note that I took an “actings are generally bad” perspective at the start. 3/ southerncalifornialawreview.com/wp-content/upl…
Here is a more recent take (capturing nomination returns/withdrawals and confirmation delays) from start of Reagan through end of Obama. Note that 30%! of Obama’s nominations were returned at least once (courts are excluded from this figure). 4/ brookings.edu/research/staff…
I have also looked at Trump numbers at 100-day mark and one year in (two years in will come in early 2019, assuming parental, child, and self-health). After 2013 rules change, delays increased (Rs slowed down in 2014, and Ds slowed down in 2017/2018). 5/
brookings.edu/research/after…
brookings.edu/research/after…
By end of Obama, as I started my book, Stand-Ins, I was more positive on actings. But I also worried about great use of actings under Obama. Watching career actings maintain stability in 2017, I found @RPublicService's equating actings with "substitute teachers” frustrating. 6/
Facts/Reform 1: For highest jobs (agency heads), actings' tenure is much shorter than confirmed folks (& 210 days). But Act allows longer tenures than actual practice. I would extend acting service for only 1 failed nomination (& 210 days after), and not 2, as it is now. 7/
Facts/Reform 2: For highest jobs (agency heads), actings are almost always Senate confirmed to other jobs or senior careerists. But Act allows non-PAS w/only 90 days in agency if paid enough (Whitaker). I would allow non-PAS as top actings only w/ more than 2 years at agency. 8/
On 2: A non-PAS acting can supervise PAS officials. Most inferior offices are Senate-confirmed but don’t need to be (whole other issue; I have been part of efforts to cut PAS jobs.) Temporarily, an acting (functioning as inferior officer) can supervise other inferior officers. 9/
On 2: President may prefer to keep PAS from outgoing WH in lower-level jobs but put non-PAS (closer to her) as top acting. My willingness to accept non-confirmed actings is in contrast to the great take of @marty_lederman and @walterdellinger here. 10/ justsecurity.org/61483/initial-…
Facts/Reform 3: For lower-level jobs (asst secretaries), actings are almost always first assistants (but not Senate confirmed) & senior employees. I would keep Act's time limits but require most actings after first failed nomination to be careerists, not political (see 2). 11/
Facts/Reform 4: Biggest loophole in Act (that few talk about) is that most of what vacant office does can be “delegated down” with no time limits. Look at any agency website’s list of leadership for “performing the functions of” language. I would reform delegations. 12/
On 4: I would mandate delegations be more transparent (some agencies post them, some do not). I would also mandate more functions be non-delegable (or impose time limits) to force nominations. I would also limit agency creation of new non-PAS deputies for delegated authority. 13/
Facts/Reform 5: Trump is not first to fire cabinet officers because of perceived disloyalty. Carter fired 6 secretaries in summer of 1979 (asked everyone for resignations). Act does not explicitly cover or exclude firings. I would make it clear Act applies. 14/
On 5: I think Act applies to firings (because of (1) floor statements, (2) courts don’t want to be in business of distinguishing firings from forced resignations & (3) allowing WH to get rid of "truly bad apples”). More in earlier thread here. 15/
Facts/Reform 6: Some jobs covered by Act have qualifications. IGs are chosen “without regard to political affiliation & solely on the basis of integrity…”. Given recent chaos over DOI IG and long-term worries about IG vacancies, I would make clear mandates apply to actings. 16/
Facts/Reform 7: There is confusion over whether Act applies to CFPB & DOJ because of agency specific succession statutes (for record, I think Act applies in both cases & did before Whitaker). I would clarify which agency provisions should trump (like DHS's does explicitly). 17/
That's it for now on reforms (article has more). A final note: Some (almost all male) voices have gotten a lot of attention on Vacancies Act issues lately. @thekinane is doing key theoretical & empirical work on White House use of interims. 18/ christinakinane.com
And Nina Mendelson at Michigan has written on the benefits on actings and is currently working on a new project in light of recent events. 19/
scholarship.law.duke.edu/cgi/viewconten…
scholarship.law.duke.edu/cgi/viewconten…
And @Jennifer_Nou has written on sub-delegation within agencies more generally. 20/ columbialawreview.org/content/subdel…
