“Earlier this month, Interior Secretary David Bernhardt extended William Pendley’s appointment as the Acting Director of the Bureau of Land Management (BLM) for another three months. The BLM has not had a Senate-confirmed permanent director at any point during the Trump administration.
It is pretty clear why Mr. Pendley has not been formally nominated for the Director’s position—his extreme, ultra-conservative views and deep conflicts of interest would not win him confirmation in the Senate. Indeed, many groups are opposed to his appointment because of his record of opposition to the very mission of the agency he is leading.
Apparently, to the Trump administration, that’s a good reason to leave him in place in an acting capacity. But that is not what the law requires. The Constitution (Article 2) doesn’t say that if a nominee can’t be confirmed, don’t worry about it. It says appointments will be made by and with the advice and consent of the Senate. Clearly, a nominee who can’t be confirmed should not be appointed.
Too often, this administration has not bothered to go through the legally required process of nominating senior officials for consideration and confirmation by the Senate. In consequence, acting officials, who may not really have the authority to lead the agency to meet its mission, are left in charge. What’s more, an acting official is much less likely to challenge political directions from others in the administration, including the president, that don’t comply with the law or mission of their agency.”