Government by 'Acting' Officials: Circumventing Senate Confirmation Through Extended Use of Temporary Designations
Tier 2Documented2017-01-20 to 2021-01-20
Factual Summary
During his first term, President Donald Trump relied on "acting" officials to fill Senate-confirmed positions to an extent that exceeded all modern precedents, effectively circumventing the constitutional requirement that senior executive branch officials receive the advice and consent of the Senate. The Government Accountability Office, the Project on Government Oversight, and legal scholars documented that multiple senior officials served in their positions without lawful authority.
The most significant finding came on August 14, 2020, when the GAO concluded that both Acting Secretary of Homeland Security Chad Wolf and Senior Official Performing the Duties of Deputy Secretary Ken Cuccinelli were serving illegally. The GAO traced the problem to the resignation of Secretary Kirstjen Nielsen in April 2019. Under the existing DHS order of succession, the Director of the Cybersecurity and Infrastructure Security Agency should have assumed the acting secretary role, but instead the Commissioner of Customs and Border Protection, Kevin McAleenan, was installed. Because McAleenan was not the lawful acting secretary, his subsequent appointments of Wolf and Cuccinelli were invalid. Under the Federal Vacancies Reform Act of 1998, actions taken by someone who is not lawfully serving in a position "have no force or effect" and cannot be ratified. This meant that policy actions taken by Wolf and Cuccinelli, including regulations on immigration and asylum, were legally vulnerable to challenge.
Federal courts subsequently applied the GAO's reasoning. In November 2020, a federal judge in New York vacated a DHS rule restricting asylum eligibility, ruling that Wolf lacked the authority to issue it because he was not lawfully serving as acting secretary. Multiple other courts reached similar conclusions regarding Wolf's authority.
The Just Security project at New York University School of Law documented that at least 15 Trump administration officials were serving without lawful authority as of August 2020. The Project on Government Oversight compiled a broader analysis showing a systematic pattern of nominees who either failed Senate confirmation, withdrew their nominations, or were never formally nominated, but continued serving in acting capacities.
Trump publicly acknowledged the strategy. In a January 2019 interview with CBS News, he stated: "I like acting. It gives me more flexibility." The remark was notable for its candor: the constitutional purpose of Senate confirmation is precisely to constrain presidential flexibility by requiring the legislature to approve senior appointments. The acting designations allowed Trump to install loyalists without subjecting them to the vetting, public testimony, and vote that Senate confirmation entails.
Key positions filled by acting officials for extended periods included: Acting Secretary of Defense (Patrick Shanahan served for approximately six months before withdrawing his nomination), Acting Director of National Intelligence (three different acting directors served over the course of about a year), Acting Chief of Staff (Mick Mulvaney served as "acting" chief of staff for 14 months), Acting Secretary of Homeland Security (multiple officials served in acting capacities across the four-year term), and Acting Administrator of the Environmental Protection Agency (Andrew Wheeler served for approximately seven months before being confirmed).
The House Committee on Homeland Security and the House Committee on Oversight and Reform both issued reports documenting the pattern and calling for legislative reforms to the Vacancies Act.
Primary Sources
1. GAO Decision B-331650, August 14, 2020, finding Chad Wolf and Ken Cuccinelli serving illegally as Acting DHS Secretary and Deputy Secretary
2. Federal Vacancies Reform Act of 1998, 5 U.S.C. sections 3345-3349d
3. Trump interview with CBS News, January 2019: "I like acting. It gives me more flexibility."
4. Just Security: "At Least 15 Trump Officials Do Not Hold Their Positions Lawfully," August 2020
5. Federal court ruling vacating DHS asylum rule due to Wolf's unlawful service, November 2020
Corroborating Sources
1. Government Executive: "Top Two Homeland Security Officials Are Serving Illegally, GAO Rules," August 14, 2020
2. NPR: "How Trump Has Filled High-Level Jobs Without Senate Confirmation Votes," March 9, 2020
3. Project on Government Oversight: "Unconfirmable: How Trump's Nominees are Failing or Evading Senate Confirmation but Holding Office Anyway," 2020
4. The New Republic: "The Trump Administration Is Run by Temp Workers," 2019
5. Constitutional Accountability Center: "How the Trump Administration is Evading Senate Advice and Consent," 2020
6. House Committee on Homeland Security: Press release on GAO decision confirming illegal appointments, August 2020
Counterarguments and Context
The White House disputed the GAO's findings regarding Wolf and Cuccinelli, and the administration's Office of Legal Counsel issued its own opinion concluding that both officials were lawfully serving. The administration argued that the president has broad authority to designate acting officials under both the Vacancies Act and agency-specific statutes, and that the rapid turnover of political appointees was a reflection of the demanding nature of the positions rather than a strategy to evade Senate oversight. Defenders noted that previous administrations also used acting officials, and that the Senate's own confirmation process had become increasingly slow and politicized, creating incentives for presidents to rely on temporary designations. It is true that Senate confirmation delays are a bipartisan problem that predates Trump. However, the scale and duration of Trump's reliance on acting officials, combined with his explicit statement that acting designations gave him "more flexibility," distinguish his practice from prior administrations. The GAO's finding that senior officials were serving illegally is a formal determination by the government's own nonpartisan accountability office, and multiple federal courts applied that reasoning to vacate policy actions. The Constitution's advice and consent requirement exists specifically to ensure that senior officials are subject to legislative scrutiny, and the systematic use of acting designations to bypass that scrutiny represents an erosion of the structural checks built into the constitutional design.
Author's Note
This entry is classified as Tier 2 because the GAO formally investigated and found that senior officials were serving illegally, and federal courts applied those findings to vacate executive actions. The GAO determination is a formal investigative finding by a nonpartisan government body, and the court rulings represent adjudicated outcomes. The broader pattern of relying on acting officials to avoid Senate confirmation is documented through primary records of appointments, tenure durations, and Trump's own public statements about his preference for the practice.