Trump Administration Found a Loophole to Dodge Senate Confirmations

The White House is aggressively seeking to expand the authority of the executive branch of government by circumventing Senate confirmation of “acting” appointees, The Intercept reported.

The Federal Vacancies Reform Act allows the president to install acting leadership where there is a vacancy, but caps the maximum time served at 210 days. With Trump having now served over 300 days, an increasing number non-confirmed appointees have exceed the 210 day cap.

One such case shows how the administration dropped “acting” from an appointee title, but in name only.

“Dan Simmons, an expat of the American Legislative Exchange Council, has been presiding over the Department of Energy’s Office of Energy Efficiency and Renewable Energy. The Trump administration has not named a nominee for the Senate-confirmed position, and Simmons hit his 210-day time limit on November 16. The Department of Energy subsequently removed Simmons’s title of acting director, while stating he would still “serve in a leadership capacity” as a principal deputy assistant secretary,” The Intercept explained. “Simmons signed off on a proposal to overhaul energy efficiency standards the next day.”

The administration has made similar moves at the Office of Nuclear Energy and at the Advanced Research Projects Agency-Energy.

The 210 day limit is not the only violation of the Federal Vacancies Reform Act being used to circumvent senate approval.

At the Department of Interior, Secretary Ryan Zinke named Brian Steed acting director of the Bureau of Land Management. This violated another section of FVRA, which mandates deputy directors must work at an agency for 90 days before being made acting director. Steed has only worked at BLM since October, previously he served as chief of staff to Congressman Chris Stewart (R-UT).

The Intercept concluded that “the Trump administration has relied on the FVRA to evade the Senate confirmation process, and, in most cases, has failed to nominate anyone to the directorship posts. These functionaries, installed across the government, are able to carry out duties unilaterally.”

There is ongoing debate as to what is motivating the White House to violate the law, rather than quickly get confirmation from the Republican senate.

“It’s not that Trump would have difficulty getting his nominees through the Senate. Since 2013, the Senate confirms executive branch appointees with a majority vote. With Republicans in control, not a single Democratic vote is required for Trump to get his appointees confirmed. But floor time in the Senate is scarce, and Majority Leader Mitch McConnell is using it instead to ram through federal judges at a record-setting pace,” The Intercept noted. “It will be those judges who hear any challenge to the legitimacy of the no-longer-just-acting directors scattered throughout the Trump administration.”

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