Biden Pushes Limit of Acting Leaders With Rules Boom on Way

Nov. 4, 2021, 9:00 AM

The budget office is writing next year’s government-wide spending proposal without a director.

An office that approves coronavirus vaccines is doing so under an interim chief.

And the White House regulations office is editing rules that will massively expand the size and scope of the federal government—without a permanent leader.

Implementing Biden’s push for the largest expansion of the social safety net in decades and overhauling portions of the tax code, assuming it gets through Congress, will require new rules, guidance and processes to be developed across the administration.

But many of the senior officials who would have to carry out or oversee that work are in acting roles and, starting in mid-November, will reach the end of their tenures under federal law. Biden has yet to nominate permanent officials for dozens of key roles, and the Senate has been slower to confirm his nominees than it has for any of his recent predecessors at the same points in their presidencies, according to the Partnership for Public Service.

White House Press Secretary Jen Psaki has repeatedly declined to say when Biden will nail down choices for top roles that require Senate confirmation, such as budget chief or commissioner of the Food and Drug Administration. She’s pointed to the presence of career officials that stay at agencies regardless of who is president.

“The overemphasis on a nominee takes away, in some ways unintentionally, from the fact that there are people who are doing their jobs every day,” Psaki said, referring to FDA career staff.

Leaving the slots open allows the White House to dodge partisan fights and oversight on Capitol Hill, where just two Republicans are already holding up a wide swath of nominees to gain leverage and attract public attention. But that strategy is precarious. Under President Donald Trump, who leaned heavily on acting officials even in Cabinet-level positions, a federal court invalidated two of his immigration directives because the Homeland Security Department’s top official violated the legal time limit on acting officials.

Ticking Clock

By law (Public Law 105-277), interim officials can’t hold their titles for more than 210 days. That will leave Biden the choice of nominating candidates for most Senate-confirmed openings, or demote the acting officials filling those roles.

The second option makes is difficult to predict who will handle what agency tasks—unless the agency or the White House specifies. Political appointees or top career officials can step in for a missing leader by law. Trump relied heavily on career officials to fill in, while Barack Obama, George W. Bush, and Bill Clinton did not, Stanford researcher Anne Joseph O’Connell found.

The White House didn’t respond to Bloomberg Law’s question about how it will handle the mid-November deadline.

At the Food and Drug Administration, acting commissioner Janet Woodcock must leave the job by mid-November. The White House has yet to announce its plans for the agency if a nominee isn’t selected by then.

Biden also has yet to nominate a legal chief for the Internal Revenue Service. That attorney would help Treasury Secretary Janet Yellen carry out Biden’s proposed tax-code changes, such as revamping international corporate tax standards. Lawyer William Paul has been handling the job temporarily since January.

“Having him as the acting, he’s pretty heavy duty,” said Ron Dabrowski, a KPMG LLP attorney who worked in that office during the Obama administration. “It may not be a priority given the other troubles they’re having with confirmations.”

The Environmental Protection Agency has only one position requiring Senate confirmation that doesn’t have a nominee, but it’s among the most consequential ones: the head of the Office of Air and Radiation. That office issues the rules that most directly curb emissions that lead to climate change, such as the one proposed Tuesday to toughen the requirements to stop methane from leaking from oil and gas wells.

Joe Goffman has been serving as the office’s acting head almost since the start of the Biden administration. Sen. Shelley Moore Capito (R-W.Va.), top Republican on the Senate Environment and Public Works Committee, which vets EPA nominees, told Bloomberg Law in October that the administration is allowing “unaccountable bureaucrats like climate czar Gina McCarthy and unconfirmed acting assistant administrator Joe Goffman to implement policies outside of nomination and Congressional oversight channels.”

In some cases, Biden doesn’t need to wait for the Senate to get the person he wants in a job. At the Transportation Department, Meera Joshi is his pick for top trucking regulator, a central role in handling the supply chain crisis.

Joshi is already doing the job. Biden gave her the deputy administrator role, the slot that fills in for the top regulator until the selected person—in this case, her—is sworn in.

Read More: Yellen’s Treasury Work Blunted With Many Key Posts Unfilled

OMB Workaround

At the White House, Biden has yet to select a budget chief, after nominee Neera Tanden dropped out of Senate consideration back in March.

The Office of Management and Budget has historically been the nerve center of the executive branch. Its directors have been political mavens who go on to other top jobs, such as chief of staff under Presidents George W. Bush and Donald Trump.

Shalanda Young, a well-respected former Capitol Hill staffer, is filling in as budget chief for now. Psaki has declined to say for months whether or when Biden will pick a permanent candidate for the job. Her tenure in the role isn’t limited by vacancy law, the White House press office and a leading scholar said.

In the meantime, Tanden is still serving—in a position arguably more powerful than the one she was nominated for and that isn’t subject to Senate confirmation. She is White House staff secretary, a job the press office called the “central nervous system” of the West Wing. It’s a strikingly similar description to the job she was initially supposed to hold.

Biden took a similar approach with his regulations chief, a position that requires Senate confirmation and also works out of the budget office.

His top economic aide is leading a team of representatives from the regulations office and eight agencies to advance the president’s anti-monopoly rules—giving Biden more direct influence over the work. Regulation-hating House Republicans complained about Biden’s lack of a rules chief pick late last month, and their Senate counterparts have signaled they would never get behind whoever he chooses for the job. Just six Republicans backed Obama’s nominee for the job at the beginning of his presidency.

Senate Slow

Biden surpassed his recent predecessors on the number of nominees selected for federal gigs that require Senate sign-off—until his presidency turned 100 days old. The pace then slipped behind that of Obama, George H.W. Bush, and Ronald Reagan, according to scholars that study presidential transitions.

Dozens of White House staffers are charged with vetting and narrowing down choices for positions that turn over when there is a new commander in chief. At least eight staffers from that group have left for other jobs in or out of the administration, Bloomberg Law found. Cathy Russell, a long-time Biden hand and the director of that office, is herself is being considered to lead UNICEF, the Washington Post reported.

While a shortage of vetting staff can be an impediment, that’s not the case in the Biden White House, a member of Biden’s transition team said. Just a handful of the president’s ambassadors are in place—not because the White House hasn’t settled on candidates, but because of messy Senate politics, she said. The Senate has yet to confirm 239 of the president’s nominees, according to the Partnership for Public Service.

That includes Dilawar Syed, Biden’s pick for the No. 2 spot at the Small Business Administration, who would be the administration’s highest-ranking Muslim. Republicans have repeatedly refused to show up for votes on his nomination, prompting supporters to allege religious bias.

Top Senate Republicans in July threatened to hold up a handful of Treasury nominations indefinitely over demands for the White House to undo a deal allowing the completion of the Germany-Russia Nord Stream 2 project.

Scholars agree that politics are the problem—but they also attribute the backlog to competing priorities in the upper chamber and the mammoth amount of candidates the Senate must approve.

The number of federal positions requiring Senate approval has ballooned in recent years to about 1,200, from the top jobs such as Cabinet secretaries to lesser-known posts such as top attorney at the Education Department. The Senate must devote time to considering all of them.

Under Senate Majority Leader Chuck Schumer (D-N.Y.), the Senate is working to even out Trump’s selections for the federal bench with Biden nominees, and advance Biden’s wide-reaching economic agenda. Negotiations over infrastructure, climate change, and social policy legislation have dragged on for months, draining the upper chamber’s capacity to consider nominees, said Heather Ba, a University of Missouri political science professor.

“It’s all one inter-connected mess,” Ba said.

—With assistance from Jennifer Hijazi and Stephen Lee.

To contact the reporter on this story: Courtney Rozen in Washington at crozen@bgov.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergindustry.com

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