For Immediate Release: Sep 12, 2018
Contact: Kirsten Stade (202) 265-7337
Vacuum in Vacancies Act Policing
GAO Is Lackadaisical in Detecting and Reporting Illegal Acting Appointments
Washington, DC — The legal authority of the acting heads for major Interior Department agencies remains murky, according to documents posted today by Public Employees for Environmental Responsibility (PEER). Consequently, the validity of actions taken by the current and former acting directors for the National Park Service, Bureau of Land Management, and Fish & Wildlife Service is subject to court challenge, potentially nullifying much of the Trump administration’s resource agenda.
This February, PEER filed a complaint with Interior’s Office of Inspector General (IG) charging that the designations of acting directors in these three agencies are in blatant violation of the Federal Vacancies Reform Act. Under that law, any action taken by a noncompliant official “shall have no force or effect” nor may such action be later “ratified.” In March, the IG referred the complaint to the Government Accountability Office (GAO), the investigative arm of Congress.
After nearly two years in office, Trump’s Interior Department has nearly as many vacant presidentially-appointed and Senate confirmed positions as ones filled (eight versus nine). Interior Secretary Ryan Zinke has issued a series of six “Temporary Redelegation of Authority” orders purporting to paper over this legal gap. Emails GAO released to PEER indicate –
- GAO admits it only tracks “time violations of the Act”, i.e., whether acting heads remain in place past the Act’s 210-day limit. “We are not reporting violations of the Act based on the acting official’s qualifications to serve in that capacity.” The Act forbids placing outsiders into acting slots, as has been the case in Interior;
- Interior has been extremely late and lax about filing required vacancy reports with GAO but GAO has not pressed the matter; and
- Neither the IG or GAO will look at the validity of Secretary Zinke’s claim in his orders that the 1950 law reorganizing Interior after World War II gives him plenary power to override the Vacancies Reform Act enacted in 1998.
“If the Senate is relying on GAO to protest its advice and consent power, its trust has been misplaced,” stated PEER Senior Counsel Peter Jenkins, referencing the constitutional requirement that the U.S. Senate be consulted on and approve treaties signed and appointments made by the President. “In reviewing Vacancies Act compliance, GAO functions more like an egg timer than a watchdog.”
Regardless of what GAO decides, lack of compliance with the Vacancies Reform Act may be litigated in what could be scores of federal court cases challenging Interior decisions affecting endangered species, mining, drilling, grazing, and everything else these three agencies administer. In 2016, the U.S. Supreme Court invalidated actions of the National Labor Relations Board due to its violations of the Act.
“We do not know if President Trump wants to leave these top posts empty or whether he cannot find people willing to serve in his administration,” Jenkins added. “These are presidential appointments and, as such, are beyond Secretary Zinke’s pay grade to fill.”