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Trump nominees show up for work without waiting for Senate approval

Written by: Federal Practice Group
Written by: Federal Practice Group

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Some lawyers and experts warn the administration may be bumping up against a 1998 law designed to prevent the president from doing an end-run around Congress.

The Trump administration is pushing the limits of an obscure federal law that restricts nominees from serving in federal positions before they’re approved by the Senate.

A POLITICO review has identified four officials at three different agencies doing substantially similar work to the position for which they have been nominated – despite not yet getting a green-light from the Senate.

The hires reflect increasing impatience in federal agencies that key jobs remain unfilled nine months into the new administration.

President Donald Trump has complained repeatedly that Democrats are moving too slowly to confirm his nominees, though he’s also said he intends to leave many jobs empty. Democrats counter that the onus is on Trump, who has not yet announced nominees for a slew of key positions across the government.

Either way, lawyers and other experts said the moves – including by the Environmental Protection Agency, the State Department and the White House Office of Management and Budget – to have unconfirmed nominees show up for work appears to skirt the Federal Vacancies Reform Act, which prohibits most people who have been nominated to fill a vacant government position from performing that office’s duties in an acting capacity.

It’s unclear whether the officials in question are in direct violation of the law, but some experts said the administration appears to be defying its intent.

“This seems like it goes further than most examples I have seen,” said Norm Ornstein, resident scholar at the American Enterprise Institute. “It seems like in some cases they’re taking people and potentially giving them roles that go beyond what they’re supposed to have.”

Ornstein said the examples identified by POLITICO violate the Vacancies Act “probably more in spirit than in letter.”

A White House official said the administration is following federal guidelines that let it name nominees to separate "advisory or consultative" roles as they await confirmation for a position. The administration is "confident that all of the president's acting designations were made in accordance with the Vacancies Reform Act," the official said.

POLITICO identified several other nominees who worked in federal agencies before they were approved by the Senate, including at the Energy Department and Health and Human Services Department. But reporters were unable to determine whether they were focused on issues within the purview of the position for which they are awaiting confirmation.

Passed by Congress in 1998, the Vacancies Act was written in response to an effort by then-President Bill Clinton to install an official at the Justice Department in an acting capacity even after he was rejected by the Senate.

In recent weeks, Senate Democrats have raised red flags about two nominees who are advising Environmental Protection Agency Administrator Scott Pruitt on the policy issues they will oversee if they are confirmed.

Susan Bodine was nominated in May to head EPA’s enforcement office. She has not yet been confirmed, but she is currently working at EPA as an adviser to Pruitt on enforcement matters.

“Your appointment creates the appearance, and perhaps the effect, of circumventing the Senate’s constitutional advice and consent responsibility for the position to which you have been nominated,” Sens. Sheldon Whitehouse (D-R.I.) and Jeff Merkley (D-Ore.) wrote in a September letter to Bodine.

Michael Dourson, who was nominated in July to head EPA’s Office of Chemical Safety and Pollution Prevention, is also currently working at EPA, though he has not yet been confirmed. He is an adviser to Pruitt on chemicals, according to the agency. Dourson has come under fire from Democrats and environmental activists for his close ties to the chemical industry. E&E News first reported that Dourson was working at the agency.

“The EPA should immediately terminate its relationship with Mr. Dourson until the nomination process is complete and my colleagues have voted on the record whether they are on the side of protecting chemical companies or protecting families,” Sen. Kirsten Gillibrand (D-N.Y.) said in a statement this week.

Asked for comment, EPA spokeswoman Liz Bowman said, “This is not unique to our administration, but something that is a common practice.”

Lawyers tracking the issue said the central issue that determines whether an official is violating the Vacancies Act is not their official title, but whether they are performing the duties of the job for which they have been nominated.

“It seems the question is whether they are in fact acting in the position – not whether there is some piece of paper bequeathing them with an ‘acting’ title, as they may be de facto acting in the positions they have been nominated for,” Debra D’Agostino, a founding partner at the Federal Practice Group who focuses on federal employment, wrote in an email.

Quoting part of the Vacancies Act, she added, “If they are ‘performing that office’s duties,’ and have been nominated, this runs afoul of the very purpose of the [act].”

Officials in at least two other agencies also appear to be stretching the rules laid out under the Vacancies Act.

In July, Trump nominated Mary Waters to serve as the assistant secretary of state for legislative affairs. But, according to multiple people inside and outside the State Department, Waters, a political appointee, has already been de facto running that bureau for months.

At least one government document uncovered by POLITICO identified her as the acting assistant secretary for the bureau, which strategizes on legislative activity. A past news account also identified her as the acting bureau leader, and the American Foreign Service Association, the diplomats’ union, has invited her to events under that title.

A State Department official initially said that Waters held the acting role but later retracted that statement and said she “has not served in an acting assistant secretary capacity.” Waters joined State as a special adviser to the transition team in February and was named a deputy assistant secretary in legislative affairs in June, the official said. She still holds the deputy’s role while awaiting confirmation.

Despite the perceptions inside and outside Foggy Bottom, Waters appears to have been careful not to personally spread the idea that she’s the acting chief of the bureau. A congressional aide said she’s not known to have represented herself that way to lawmakers or their staff, but added “it is also clear that in the last couple months especially she’s been essentially doing the job.”

A memo seen by POLITICO said that, effective June 15, days after Waters was named a deputy assistant secretary, correspondence to Congress would be signed by Charles Faulkner, another deputy assistant secretary in the bureau. Waters, the note said, “will still be the principal to approve memos and other paper for circulation within the department.”

Asked if the law was being violated in letter or spirit in Waters’ case, the State Department official did not directly answer, but prefaced a description of Waters’ role as being “consistent with the Vacancies Reform Act.” The official added,” Any letter or description depicting her in an acting role is incorrect.”

A similar situation is unfolding at the White House Office of Management and Budget.

Russell Vought, Trump’s nominee for deputy OMB director, is a senior adviser to OMB chief Mick Mulvaney. Vought has not been approved by the Senate, but he is working on several issues that would be in his purview if he is confirmed. A Trump administration official and a person who has dealt directly with OMB told POLITICO Vought is operating like the office’s de facto deputy.

An OMB official said Vought is one of five senior advisers to Mulvaney. The official added that Vought’s “role is limited” and he advises Mulvaney on “budget matters and helps to prepare materials that will go to the Director.”

The official said Vought does not have authority over several issues that would be part of the job description as OMB deputy, including reviewing staff performance, making personnel decisions and sending agency-wide communications.

But that explanation wasn’t compelling to some experts.

“By allowing him to perform the substance of the job but not the ministerial aspects, they are again going right to the heart of the reason for the [Vacancies Act],” D’Agostino said. “Nobody cares if someone is Senate confirmed before they do performance appraisals – the Senate confirmation is about whether the Senate agrees the person is fit to make major decisions affecting our country.”

Other administrations have also run afoul of the Vacancies Act.

The law famously tripped up the Obama administration, leading to a Supreme Court decision earlier this year that underscored that – with a few exceptions – a person nominated to fill a vacant position in the government cannot fill that position on an acting basis while he or she awaits confirmation.

EPA’s Bowman pointed to several Obama-era nominees who served in key posts at the agency despite not yet being confirmed by the Senate.

One career official nominated by Obama to run EPA’s international affairs office, Jane Nishida, was never confirmed, and continues to serve as the acting assistant administrator under Pruitt. The president has not nominated a replacement for her.

Veterans of past administrations said they sought to avoid violating the Vacancies Act whenever possible.

A former Obama administration official, who asked for anonymity to speak frankly about personnel issues, acknowledged that they sometimes “flirted with the line,” but were “always so careful” not to anger members of Congress by installing somebody in an agency too soon.

Clay Johnson, who oversaw presidential personnel under Bush, said violating the Vacancies Act is a “big deal.”

“The prospective employee can’t use the office or parking space intended for the position in question, and can’t perform similar duties,” he said. “We were adamant about it.”

Alex Guillén contributed to this story.

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