OK, let me lay it out step by step: Anyone who’s willingly working for Trump is going to be pretty terrible. But some folks will be even more terrible than others. If Trump needs to get the people who work for him confirmed through the Senate, there’s at least a chance that they’ll stop him from getting the absolute most terrible folks. But if he just sidesteps that through acting appointments, we don’t even have that chance.
In a normal administration, those “specific instructions” don’t exist at that level. Presidents don’t give Secretaries instructions - the Secretary knows the President’s agenda and will direct the various Deputy Secretaries who in turn will direct the Undersecretaries and Assistant Secretaries , but all of this direction is is fairly broad strokes , It’s the SES , the top managerial and policymaking positions that will actually write the detailed policies and regulations and so forth. Most of these employees are career employees.
Senate confirmation or lack of it for Secretaries, Deputy Secretaries, Under Secretaries and Assistant Secretaries depends to some extent on the particular job and who was appointed. Todd Blanche can indefinitely serve as the Acting Attorney General because he was appointed under a statute that has no time limit but only allows the Deputy Attorney General ( a position that requires Senate confirmation) to be appointed as the Acting Attorney General. Anybody else would have to be appointed under a different statute, which does have time limits. As far as what happens if someone who must be Senate confirmed before a deadline isn’t confirmed, but won’t leave, my guess is the same thing that happened when a judge determined that Lindsey Halligan’s 120 day appointment as Interim US Attorney was invalid - which resulted in indictments being dismissed because only Halligan participated in obtaining them. Essentially, because her appointment was invalid, anything she did was invalid.
My limited experience with federal clients has been that when “acting” status expired, the persons title reverted from “deputy underwhatever and acting overwhatever” back to just “deputy underwhatever”, with no actual change in authority or operations other than the protocol droids getting the vapors if we put the wrong title on a document.
Granted while this was for appointed positions, it wasn’t cabinet level. And the acting people weren’t installed specifically to be acting.
I saw it mentioned today that tRump can pull Blanche’s nomination and then if/when he reinstates it, the clock starts again on the “210 days” that he has to be confirmed.
Since his entire form of governing seems to be “fk you, that’s why”, I don’t see a reason why he’d worry about getting Blanche confirmed, if he can just have him as “acting” for the next 2 1/2 years.
The text of the law was given by @PhillyGuy. I found an explainer that doesn’t to my mind clarify.
The time limit for an acting official is suspended, however, if the president nominates someone to the PAS position. For example, if someone is serving as acting deputy secretary at a cabinet agency and another individual is nominated to that position, the 210- or 300-day countdown (whichever is applicable) would effectively stop while the nomination is pending before the Senate. If the nominee for that deputy secretary position is rejected, returned or withdrawn, the president is provided an additional 210 days in which an individual may serve in that role in an acting capacity. If a second nominee is submitted for the deputy secretary position, the 210-day countdown is again suspended while the nomination is pending. If this second nomination fails, the acting official may serve another 210 days after the failure of the nomination. Once that 210-day cap is reached, the position is considered vacant.
That presumes that a different person is the new nominee. Does it make a difference that Blanche is the Acting AG?
And it contains a stunner of a paragraph.
Interestingly, the law does not account for circumstances in which the vacancy in question is that of the agency head and the Vacancies Act cap has been reached. In short, the law delegates the authorities of vacant positions to the agency head, but does not articulate what happens when the vacancy itself is the top position at the agency. The Senate report accompanying the legislation stated that the authorities of a vacant agency head are not addressed in the act “because the Committee expects that there will never be a case where a nomination for these positions is not timely submitted.”
Those naive days of 1998.
What if they just swap jobs?
Who is “they”? Todd Blanche can’t swap with Todd Blanche, not even in Trump’s universe.
I was thinking Blanche and Pulte, per the thread title.
Pulte was being considered for a different job, Director of National Intelligence. He was passed over for Jay Clayton, who was just confirmed by the Senate.
I suppose Trump could theoretically make him Acting Attorney General since he has been approved by the Senate. Approval for any position allows you to become acting in another position. But Trump doesn’t like him anymore and wants Blanche.
I think the article is wrong and the 210 days don’t apply to Blanche at all. He is the Senate-confirmed Deputy AG and has authority to act as AG for as long as there’s a vacancy, however long that is:
(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.
Edit: Maybe it’s not so simple as that:
Nina Mendelson, a professor at the University of Michigan Law School, said the statute “is best read, in my view, to implicitly adopt the 210 day time limit.”
“The President cannot legally rely indefinitely on an acting Attorney General,” she wrote in an email. She added that “Blanche may well face legal challenges,” noting that there were lawsuits challenging the service of Matthew Whitaker, who served as acting attorney general in the first Trump administration, and that there have been “many lawsuits involving long-serving officials claiming to be ‘actings’ at other agencies.”
But Anne Joseph O’Connell, a Stanford Law School professor, said the statute does not impose time limits and that Blanche could serve the remainder of Trump’s term without Senate confirmation.