Congress needs to reform the Vacancies Act to keep the business of government on stable footing

Each decision the federal government makes — launching new programs, issuing contracts, and creating regulations — has ripple effects, impacting thousands of businesses and driving billions of dollars in economic activity.

If those policies are cancelled or reversed, the businesses who hustled to comply are left out on a limb. And a weakness in federal law governing the appointment of government officials makes these disruptive reversals more likely.

Our Constitution requires the president to get the Senate’s approval when appointing people to run federal agencies. But there are rules in place governing situations in which acting officials need to step in and serve temporarily if a job becomes vacant and the Senate has yet to confirm a nominee.

The law, the Federal Vacancies Reform Act (best known as the Vacancies Act), allows the president some flexibility, but imposes limits on who can take over the job and how long that person can serve on an “acting” basis. In theory, the law ensures someone is available to run an agency or office day-to-day, but respects the constitutional requirement for the president to get the Senate’s approval.

However, presidents of both parties have frequently abused weaknesses in the Vacancies Act to skirt the rules — leaving an acting official in place beyond the time limit or allowing a series of acting officials to serve without ever nominating a replacement. Often these technicalities are overlooked, because the law is not self enforcing and the Senate has done a poor job asserting its proper role in vetting executive leadership.

This can ultimately cause a bit of chaos. If an individual or business successfully sues the government, they may be able to invalidate an acting appointment and any decisions made by that official. This is becoming more common, and the consequences for the people doing business based on that official’s actions can be disastrous.

Take the Bureau of Land Management, for example. Hundreds of businesses, from outdoor adventure companies to mining operations, rely on the BLM to make plans for using 245 million acres of public lands and about 30 percent of our country’s mineral resources.

During the Trump administration, the Senate never confirmed a director of the BLM. Instead, the Interior Department kept delegating the duties of the director to several different people, including William Perry Pendley. Pendley was hired by the secretary of the Interior as the BLM’s deputy director of Policy and Programs, a job that did not require Senate confirmation. Two weeks after he was hired, Pendley was delegated the duties of BLM director, which the Trump administration claimed was consistent with the law.

As acting BLM director, Pendley finalized a number of resource management plans for millions of acres of public land. These kinds of plans can open land for grazing, timber harvests, and mining, or set it aside for conservation, hunting, or other recreation.

The state of Montana objected to two resource management plans Pendley finalized in their state, claiming in federal court that the plans were void because Pendley was unlawfully serving as BLM’s director. The court agreed and struck down the plans. Then, the state of Colorado  and a group of environmental advocates filed claims seeking to overturn multiple resource management plans across the country.

When the Missoula, Montana plan was being finalized, Gordy Sanders, Resource Manager at Pyramid Mountain Lumber told the Missoulian that he was “encouraged” the proposed BLM plan would make it “more predictable that they’re actually going to have (forestry) projects in a given year moving forward.” But the businesses and local governments who thought those resource management plans were settled, now have to go back to the drawing board.

Similar court cases, alleging the Trump administration’s acting Homeland Security Secretary Chad Wolf and acting Director of U.S. Citizenship and Immigration Services Ken Cuccinelli were serving unlawfully in their roles, led to a few of the Trump administration’s DHS and USCIS policies also being invalidated by the courts. Based on the experience of Mr. Sanders at Pyramid Mountain Lumber and others like him, it’s a process that has real-world consequences.

The Senate is in the process of considering nominees to fill these longstanding vacancies, including Biden’s nominees to lead the BLM and USCIS, but overall the Senate has only acted on about a third of the over 300 pending nominations being tracked by the Partnership for Public Service. And President Biden has yet to nominate candidates for hundreds of political positions across the government.

President Trump openly said he preferred having acting, rather than permanent, Senate-confirmed appointees because of the “flexibility” it gave him. But he was far from the only president who evaded the Vacancies Act’s limits. President Obama, for example, relied on temporary, acting officials to serve as inspectors general and as the acting assistant attorney general of the Civil Rights Division.

Congress needs to fix this. This week the House Oversight Committee is scheduled to mark up the Accountability for Acting Officials Act, which would close some of the loopholes and ambiguities in the Vacancies Act and give presidents more incentive to nominate officials to be approved by the Senate. That bill would clarify existing rules governing acting officials and put in place stricter limits on who can serve as an acting leader.

The bill is an important step forward in ensuring qualified, experienced personnel serve as acting officials, and in giving businesses that interact with federal agencies greater certainty that the decisions by those officials won’t be invalidated down the line.

Cerin Lindgrensavage is counsel at Protect Democracy and Liz Hempowicz is director of public policy at the Project on Government Oversight.