Power without Numbers
April 10, 2019

Effective Wednesday, the Department of Homeland Security will be led by an acting secretary, Kevin McAleenan. He will join acting Defense Secretary Patrick Shanahan, acting Interior Secretary David Bernhardt, acting U.N. Ambassador Jonathan Cohen, and acting Office of Management and Budget Director Russell Vough in President Trump's Cabinet. When Linda McMahon steps down Friday, the Small Business Administration will have an acting administrator, too.

The FAA, FDA, FEMA, ICE, and Secret Service are among the other agencies with no Senate-confirmed leader, and when McAleenan becomes acting DHS secretary on Wednesday, Customs and Border Protection administrator will be vacant, too. Shanahan, who is under investigation by the inspector general, has been acting defense secretary since Jan. 1, a record tenure for an acting Cabinet-level official, The Wall Street Journal reports. Trump hasn't even nominated a permanent candidate.

Trump seems to prefer this arrangement, telling reporters in January: "I like 'acting.' It gives me more flexibility." But the glut of acting officials in Trump's Cabinet is "prompting concerns from lawmakers in both parties about their accountability to Congress," the Journal reports. Congress isn't alone.

Trump's preference for "acting" appointees, "presumably because unconfirmed appointees are more likely to be loyal to him personally rather than to the Congress or Constitution," is yet "another assault on the law," Max Boot argues at The Washington Post. America's founders specifically "ordered George Washington to send nominations to the Hill at a reasonable pace," New York University professor Paul Light tells The New York Times, because they "rightly worried that presidents might use acting appointees to evade oversight and institutional prerogatives."

For Trump, "the real difference is avoiding Senate confirmation — either because the individuals he wants running these agencies can't be confirmed even by a Republican-controlled Senate, or because he's worried about the kinds of questions they'd have to answer and or concessions they'd have to make in order to be confirmed," adds University of Texas law professor Stephen Vladeck. And Congress, he notes, isn't powerless here. Peter Weber

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