The federal government faces a large and perilous leadership gap starting at noon on Jan. 20. Trump administration political appointees, quite properly, have been told to submit their resignations by then. The Senate is unlikely to act quickly on new nominees. But there’s a solution: Once he takes office, Joe Biden should fill key positions with temporary and recess appointments.
Normally, when there is a change of administrations, outgoing officials work with their replacements to assure a smooth transition. Often, a well-regarded senior official is asked to stay in office until at least the secretary of the department has been confirmed by the Senate. Meanwhile, career professionals take over as temporary caretakers.
That can’t happen this year.
Trump officials refused to work with the Biden teams, or denied them requested information. Many senior appointees are themselves in “acting” capacity and have questionable qualifications for their jobs. Many departments have been hollowed out by firings or resignations of career civil servants who otherwise could have stepped in.
And the problems — especially in national security and public health — can’t wait until the normal process is followed. The Obama and Bush administrations hadn’t even nominated 38 percent of their senior people in all agencies after three months, and over one-fourth of the top positions were still empty after 11 months.
Before anybody can be confirmed, the Senate must organize itself and name committees. And that can’t happen until the new vice president can cast deciding votes for the Democrats.
The rules for temporary appointments are complex, but workable.
The easiest would be recess appointments, naming Cabinet and sub-Cabinet people to key positions, which they could hold for at least a year. Congress doesn’t like that approach — so much so that both parties have conspired since 2007 to avoid being out of session for more than three days in order to prevent Presidents Bush, Obama and Trump from making recess appointments. A Supreme Court decision in 2014 held that the recess had to be at least 10 days.
With Democrats controlling both houses after Jan. 20, a 10-day recess would be possible, but probably would have to be accompanied with a bipartisan agreement limiting how many or where certain appointments would be made.
An alternative would be making appointments to acting positions under the Vacancies Act. Given the resignations of Trump appointees, Biden could name people to serve for up to 300 days in key jobs, pending Senate approval of replacements. There is a major complication, however, because none of these people could stay in position if they were nominated for the permanent job. This happened when Army Secretary Mark Esper, serving as acting Defense secretary, had to step down temporarily when he was nominated for a regular appointment.
The solution for Biden would be to name people with prior experience, such as in similar jobs in the Obama administration, to fill these jobs only until permanent successors can be Senate confirmed.
The Trump administration has made abundant use of “actings,” often as a way to secure political loyalty, as these appointees audition for permanent jobs. The incoming Biden administration can avoid abusing that power by making clear to appointees that their service is clearly temporary, as placeholders.
For the new administration to succeed, it must fill the top 1,200 or so political jobs quickly — not just the Cabinet secretaries but down to the assistant secretary level. Trump loyalists must be replaced quickly. And burrowed officials should be prevented from slow-rolling the changes promised by the new team.
Cases can be made for the quick replacement of Trump appointees in many domestic agencies — Health and Human Services, Interior, Environmental Protection, Agriculture. But I am most concerned about Defense and State Departments and Homeland Security, as well as the Intelligence Community, which are riddled with acting people with questionable qualifications. Even today, large numbers of senior political jobs remain unfilled: 71 percent at Homeland Security; 41 percent at the Department of Defense; and 20 percent at State. I worry that America may face urgent challenges from China, Russia, Iran, North Korea or elsewhere and we won’t have the capacity to respond quickly.
The chairs in the Situation Room and in the key agencies need to be filled promptly with talented people. We dare not wait until the normal slow processes work themselves out.
Dr. Charles A. Stevenson is a fellow of the National Academy of Public Administration. He teaches at Johns Hopkins School of Advanced International Studies.