然而，1998年《联邦职务空缺改革法案》（Federal Vacancies Reform Act）制造了一个漏洞，能够让总统通过临时任命其它顶层联邦雇员来填补空缺。总统可在“执行机构官员……死亡、辞职或无法履行其功能和职责的情况下”进行任命。不过，总统只能任命该职务的继任者，例如其副职，或至少在有待替代的部长手下工作过90天的人员。
In the less than three years since President Donald Trump took office, he has had no less than 28 acting cabinet secretaries—more than the 27 total employed during President Bill Clinton’s eight years in office, and the 23 over the course of the Obama administration.
Relying on acting cabinet members is not unheard of by any means; presidents often use them at the beginning of their administration or at the start of their second term while the senate goes through the confirmation process, explains Anne Joseph O’Connell, a law professor at Stanford University.
But Trump’s cabinet has been filled by more acting secretaries than any of his predecessors—especially in his second and third years in office. O’Connell highlights that Trump had five in 2018, for example, compared to Clinton’s two, and Obama’s zero at the same time. President George W. Bush had one in his second year in office.
And there is little indication that Trump will change his tack.
More than 200 days since the Department of Homeland Security last had a confirmed secretary at its head, Trump announced yet another temporary replacement: Chad Wolf. But Homeland Security is far from the only cabinet office that has been led by an acting secretary.
The Cabinet includes the Vice President and the heads of 15 executive departments, including the Secretaries of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Labor, State, Transportation, Treasury, and Veterans Affairs, as well as the Attorney General.
But each president also has the power to elevate other positions to Cabinet-rank—or demote them. Trump’s Cabinet, for example, includes the White House Chief of Staff and heads of the Environmental Protection Agency, Office of Management and Budget, United States Trade Representative, Central Intelligence Agency, Office of the Director of National Intelligence, and Small Business Administration.
Noticeably absent from this list is the U.S. Ambassador to the UN, a position that has historically been given cabinet rank. Trump decided that the role would no longer be a cabinet position following Nikki Haley’s exit at the end of last year.
Of the current 23 cabinet positions in the Trump administration, five are serving in an acting capacity: White House Chief of Staff Mick Mulvaney, DHS Secretary Wolf, OMB Director Russell Vought, DNI Joseph Maguire, and Small Business Administration head Chris Pilkerton. Dozens of other government officials have served as acting secretaries in the past couple of years.
Yet a few cabinet members have evaded the “acting” title.
Sonny Perdue has served as Secretary of Agriculture since April of Trump’s first year in office. Commerce Secretary Wilbur Ross has served in that position since late February 2017 and Education Secretary Betsy DeVos since early February. Ben Carson has served as HUD Secretary since March 2017. Elaine Chao has served as Secretary of Transportation since January 2017, and Steven Mnuchin has been Treasury Secretary since mid-February of that year. And while Rick Perry, Trump’s Secretary of Energy, has served in that role since March 2017, he is reportedly due to resign before the end of the year.
These individuals appear to be the exception to the rule. According to Kathryn Tenpas, a fellow at the Brookings Institution who has been tracking turnover across government agencies, 10 confirmed cabinet members have left their positions during the Trump administration. The turnover rate of Trump’s first year in office is higher than all of his five immediate predecessors.
When a cabinet member departs, the law clearly defines the process: other than the White House Chief of Staff and the Vice President, all cabinet-level officials must be confirmed by the Senate.
The Federal Vacancies Reform Act of 1998, however, creates a loophole, allowing a president to temporarily fill vacancies with other top federal employees. These appointments can be made after an “officer of the Executive Agency...dies, resigns, or is otherwise unable to perform the functions and duties of the office.” But the president is limited to filling those vacancies with an individual who would otherwise be next in line for the position such as a deputy—or at least have served for 90 days under the secretary they would be replacing.
While this law has typically been used as a stopgap solution while the Senate is considering the president’s nomination for a permanent replacement, Trump has used the law numerous times since taking office, putting acting secretaries in place, without immediate plans to replace them with Senate-confirmed members.
The law technically limits how long someone can serve in an acting capacity at 210 days—but if the Senate rejects a nomination for a permanent replacement in that timeframe, the 210 day counter restarts, effectively allowing acting secretaries to remain in their role for more than a year. This 210 day counter can be restarted a total of three times.
“I like acting,” Trump said in January. “It gives me more flexibility. Do you understand that? I like acting. So we have a few that are acting. We have a great, great cabinet.”
Paul Light, a professor of public service at NYU, doesn’t see flexibility, but “rank confusion.” With Trump’s record-setting acting appointments, Light says that “the result is turmoil, uncertainty, and a general sense that no one and everyone is in charge, which is exactly what the president appears to prefer. Acting appointees lack the one thing that might calm anxious agencies, which is the credibility that comes with a Senate confirmation.”
Tenpas thinks that this has not so much been a deliberate decision on the part of the administration, but rather “one they stumbled upon.” She calls Trump’s contention of preferring the flexibility associated with acting cabinet members a dubious claim “since he always maintains flexibility—staff serve at the pleasure of the president. He can fire/reassign whenever he likes.” Rather, Tenpas suggests that recruitment could be the real issue, as the administration has struggled to find qualified candidates who could be confirmed.
“Given the Mueller investigation, the president’s penchant for firing and humiliating high level appointees, and now the impeachment process—it doesn’t seem like an opportune moment to join the administration,” Tenpas says.
Here’s a look at the acting heads of the various Cabinet-level positions over the course of Trump’s presidency.
Following Defense Secretary Jim Mattis’ departure at the end of last year, Patrick Shanahan served as Acting Secretary of Defense until June of this year. Trump had initially nominated him to continue in the role on a permanent basis, but withdrew his nomination due to allegations of domestic violence.
Mark Esper then entered the role in an acting capacity for three weeks this summer, followed by Richard V. Spencer, who assumed the role for about a week, until Esper was confirmed in late July.
Health and Human Services
Trump’s first confirmed HHS Secretary, Tom Price, only stayed in the role until September 2017. Don Wright and Eric Hargan subsequently filled the role in acting capacities through late January 2018, at which time Alex Azar was confirmed as the new secretary.
McAleenan was the most recent Acting DHS Secretary to leave the post. After John Kelly left the agency to become Trump’s Chief of Staff in July 2017, Elaine Duke was the Acting DHS Secretary until Kirstjen Nielsen was confirmed in December of that year. When she in turn resigned in April of this year, McAleenan filled the position. Chad Wolf was sworn in as the latest Acting DHS Secretary on November.
David Bernhardt, who was confirmed as Secretary of the Interior in April, served in an Acting capacity for several months prior. Ryan Zinke had previously served in the role, but resigned in January of this year amid investigations.
Patrick Pizzella served as Acting Labor Secretary from mid-July until late September, when Eugene Scalia was confirmed to the position. Alexander Acosta, who was Labor Secretary prior to Pizzella, resigned due to his involvement in a mishandled sex crimes case against Jeffrey Epstein a decade ago.
Rex Tillerson was fired as Secretary of State in March 2018, at which time Mike Pompeo, formerly Director of the CIA, was nominated and confirmed as his replacement.
There have been two Acting Secretaries of Veterans Affairs under Trump. After Trump fired David Shulkin in March 2018, Robert Wilkie and then Peter O’Rourke served in acting capacities, until Wilkie was confirmed in July of that year.
Matthew Whitaker served as Acting Attorney General from November of last year after Jeff Sessions resigned, until February of this year, when William Barr was confirmed.
White House Chief of Staff
Mick Mulvaney has served as the Acting Chief of Staff since the start of the year, when then-Chief of Staff John Kelly stepped down. Kelly succeeded Reince Priebus, who served in the role for the first half of Trump’s first year as president.
Mulvaney is also technically the Director of the OMB, a role that is now being filled in an acting capacity by Russell Vought. And reports suggest that Mulvaney could be out before long.
Environmental Protection Agency
Andrew Wheeler served as the Acting head of the EPA after Scott Pruitt’s departure in July 2018, until late February of this year, when he was confirmed by the Senate.
Office of Management and Budget
While Mick Mulvaney is still the Director of the OMB in name, Russell Vought has served as Acting Director since Mulvaney stepped into the role of White House Chief of Staff.
United States Trade Representative
Following two short stints by acting members, Robert Lighthizer has served as U.S. Trade Representative since May 2017.
Central Intelligence Agency
Mike Pompeo, who has since become Secretary of State, served as Director of the CIA from the start of Trump’s presidency until April of last year. He was followed by Gina Haspel, who served in an acting capacity for nearly a month, before she was confirmed in late May 2018.
Office of the Director of National Intelligence
Dan Coats served as DNI from March 2017 until he stepped down in August of this year. Trump initially announced that he would nominate John Ratcliffe to replace Coats, but then quickly dropped him after reports revealed that Ratcliffe had overstated his record as a prosecutor. Joseph Maguire has instead served as Acting DNI since mid-August.
Small Business Administration
Linda McMahon served as Administrator of the Small Business Administration from February 2017 until leaving in April of this year to chair Trump’s 2020 Super PAC. In the months since, Chris Pilkerton has served in an acting capacity.
U. S. Ambassador to the UN
After Nikki Haley’s departure as Ambassador to the UN at the end of last year, the Trump administration chose not to make the role a Cabinet-level position. Nonetheless, Jonathan Cohen served in an acting capacity from January until mid-August. Kelly Craft, who was confirmed to the role in late July, began her post in mid-September.