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An NPR article published July 12, 2019 notes that, in addition to the Department of Labor:

Many other key agencies are also led by acting officials, including the Federal Aviation Administration, the Food and Drug Administration — even the president's chief of staff Mick Mulvaney is in an acting role.

The article goes on to note that:

The number of acting officials also means a dminished role for Congress, because various departments and agencies are being led by officials who were not confirmed for their jobs by the Senate.

Most recently, Trump has announced that Rep. John Ratcliffe is his pick to be the new Director of National Intelligence, which has prompted some to question whether

Ratcliffe [would] be so much of a loyalist that he would tell Trump only what he wanted to hear — and Congress and the public what Trump wanted them to hear


If Trump never formally nominates Ratcliffe to his position, what recourse might Congress have if they don't approve of him? Can someone in an acting role be impeached, for example? Would it be possible for Congress to interpret Trump's tweet announcing Ratcliffe's nomination as necessitating a formal confirmation?

I am pleased to announce that highly respected Congressman John Ratcliffe of Texas will be nominated by me to be the Director of National Intelligence. A former U.S. Attorney, John will lead and inspire greatness for the Country he loves. Dan Coats, the current Director, will be leaving office on August 15th. I would like to thank Dan for his great service to our Country. The Acting Director will be named shortly.


As noted by BobE, the Federal Vacancies Reform Act of 1998 will likely play a role here, as it dictates (1) who can be an acting official; and (2) how long an acting official can serve. So the question might need to be more narrowly defined: During the normal term of an acting official, what steps can Congress take? I would think impeachment is also an option. However, it seems that Congress may also be able to introduce new legislation to deal with the issue.

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    So these are roles that would usually have the holder need to be confirmed by Congress, but because the Administration is not "officially" appointing them, only putting them in place as "acting" they're avoiding scrutiny and confirmation processes? – Jontia Jul 30 at 14:11
  • @Jontia: I would say yes. – Zack Jul 30 at 14:16
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    might want to include in Q, "Under the Vacancies Act, an acting secretary can serve 210 days from when the position was made vacant (or 300 days if it's the administration's first year). If the nomination of a permanent official fails, the acting secretary can serve an additional 210 days." – BobE Jul 30 at 14:18
  • @BobE: Thanks for that reference. I was unaware of that law. – Zack Jul 30 at 14:21
  • According to Wikipedia Obama had a few officials in acting positions during his presidency, including Commerce for a year and OMB for 15 months. en.wikipedia.org/wiki/Confirmations_of_Barack_Obama%27s_Cabinet – Jontia Jul 30 at 14:30
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Firstly, it should be noted that one of the points in this question has been rendered moot, since Trump has now (as of August 2) announced he will not nominate John Ratcliffe as his intelligence chief. One of the proposed reasons for the withdrawal is that:

He got a very cool reception from Senate Republicans. Most of their statements praised the outgoing Director of National Intelligence Dan Coats, but some of them didn't even mention Ratcliffe.

NPR

So, in reference to my original question, one could argue that, besides any actual legislative power, Congress can affect acting officials solely by how they react to potential nominees (even before any formal hearings are held).

As alluded to in my original question and some comments, Congress also has various legislative powers related to presidential nominations and appointments (and officials in acting roles).

The Federal Vacancies Reform Act of 1998 places limits on who can serve in an acting role for officers of the executive branch, and how long they can serve. Interestingly, the bill was passed in 1998, while Clinton was president, and was passed along largely partisan lines (supported by Republicans). So presumably, Congress could always introduce new legislation related to Trump's use of acting officials if it so desired (although that seems unlikely given that the Senate seems largely content in the current state of affairs).

As with any other federal official, Congress can also use impeachment to remove acting officials.

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Per request, regarding my comment that Trump is not using the vacancies as some form of nefarious strategy to get around congress. While I'm not sure this exactly answers the question that was asked, it does address the issue as to whether the implied unscrupulous motivations suggested by the referenced article are reasonable or just politically driven spin.

“The last thing I heard [is] it would take up to 32 years if we continue the current pace and get every one of the Trump nominees completed,” said Sen. Tim Scott (R-S.C.). “You’re forcing the government to work in a dysfunctional way and we don’t need any assistance in that.” - Politico


In April republicans pushed through rule changes limiting debate on nominees to 2 hours instead of 30. It's a change that Democrats had also previously made to Senate procedure in 2013. - Summarized from Vox

Previously, if lawmakers voted to limit debate on a nominee, that back-and-forth would still be able to continue for 30 hours before lawmakers would actually be able to vote to confirm the candidate. Practically speaking, because there is only so much time the Senate is in session, this meant that there were a finite number of nominees that Republicans could get through — and that’s something they wanted to change - Vox


Regarding the 2013 Democrats rule changes....A little over three years ago, Senator Mitch McConnell stood on the Senate floor and issued a warning to the Democrats who then controlled the majority. “I say to my friends on the other side of the aisle, you’ll regret this,” McConnell, then the minority leader, told them. “And you may regret it a lot sooner than you think.” At the urging of Majority Leader Harry Reid, Democrats had just voted along strict party lines to change the rules of the Senate, deploying what had become known in Washington as “the nuclear option.” - The Atlantic


While it could have taken up to four days to get nominees through the two Senate votes they previously faced, it now takes at least a day less. -Vox

That's still a minimum of 3 days per nominee.


The Senate minority uses a variety of procedural tricks to keep the Trump administration and the federal courts short staffed. Extreme slow walking and privileged “holds” have become standard practice. In early January, Democrats demanded that pending nominees be returned to the White House at the end of a 115th Congress – thus restarting the entire nomination/confirmation process. - The Hill


Almost a week of Senate floor time is wasted for each confirmation vote. - The Hill

(This quote is from prior to the recent rule change)


As of May 31, 2018, the average time between nomination for all Trump nominees—including Cabinet secretaries, deputy and assistant Cabinet secretaries, chief financial officers, general counsels, heads of agencies, ambassadors, and other leadership positions—was 86 days - Partnership for Public Service


On February 28, 2017, Trump announced he did not intend on filling many of the numerous governmental positions that were still vacant, as he considered them unnecessary - Fox News


At best, one could claim that this last quote is a Trump strategy to work around congress. He'd much rather the senate spend 3 or 4 days confirming positions he feels are more important instead of nominating administrative positions which he doesn't believe are as important. However, it shouldn't be ignored that Trump planned on shrinking government admin positions while campaigning which was before he realized how slowly getting his nominees approved would be. So I think this strategy was just a common sense adaptation to what was happening.

  • Could you add links for your referenced sources? Also, while this answer gives a possible interpretation for why there are so many acting officials (overlooking the fact that Trump's unusually high turnover has certainly exacerbated his position), it doesn't address what Congress can do to limit presidential use of acting officials (if it so desired). – Zack Aug 13 at 13:29
  • @Zack - I stated in my response that this doesn't directly address the question that was asked, but addresses the implied 'nefarious tactics' being used by Trump that seems to have initiated the question. I only wrote an answer because it was requested. Indirectly, this does answer the question, if congress wants more control over acting officials then speed up the confirmation process so there is no longer a need for 'acting officials'. – Dunk Aug 13 at 15:30
  • "Nefarious" is certainly a subjective word; I certainly didn't have that word in mind when asking the question. Again, could you please add links to your cited sources? – Zack Aug 13 at 16:30
  • You didn't use nefarious but some of the wording does imply it: "The number of acting officials also means a dminished role for Congress" and "If Trump never formally nominates Ratcliffe to his position, what recourse might Congress have if they don't approve of him" – Dunk Aug 15 at 0:17

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