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.
By ANDREW RESTUCCIA and NAHAL TOOSI 10/20/2017 05:04 AM EDTThe 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.
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http://www.politico.com/story/2017/10/20/trump-nominees-working-senate-approval-243972
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