Trump may rely on acting secretaries if nominees fail to muster GOP support
President-elect Trump may need to rely on acting secretaries to fill out his Cabinet as a number of key nominations draw significant concern from key GOP senators.
When Senate confirmations are in limbo, especially if there is pushback from lawmakers, presidents can slip nominees into acting roles for at least 210 days. Trump did so across more than 20 Cabinet-level jobs in his first term.
Trump’s picks like Pete Hegseth for Defense secretary, Tulsi Gabbard for Director of National Intelligence and Robert F. Kennedy Jr., for Health and Human Services secretary, among others, are sure to face some opposition from Senate Republicans.
Hegseth, Kennedy, and Linda McMahon, the president-elect’s pick for Education secretary, all are expected to field questions from senators over allegations of sexual misconduct or enabling sexual abuse. Trump’s original pick for attorney general, Rep. Matt Gaetz (R-Fla.), dropped out of the confirmation process just over a week after being named amid allegations of having sex with minors, which he has denied.
Senators will question other nominees, like Gabbard, over if they’re qualified for the role or have any conflicts of interests.
By February 2020, acting secretaries under the Trump administration served a total of 2,736 combined days, across 22 Cabinet-level jobs, according to a Washington Post analysis.
During his first four years in office, Trump had acting officials serve more than three times as much as former President Obama had during his eight years in office. Under Obama, there were 2,202 combined days in which acting officials served.
“I could foresee a situation where he definitely does that, given that he has a record of doing it.” one former Trump administration official said. “I mean, Chad Wolf was there for how long?”
The official was referring to Wolf’s extended stint as acting secretary of the Department of Homeland Security, which lasted 14 months. Some lawmakers pointed in his direction as a prime example of why they are worried at the prospect of acting officials taking the helm of some departments and agencies b because Wolf was unable to carry out parts of Trump’s immigration plans.
A federal judge in late 2020 invalidated his decision to limit work permits via the Deferred Action for Childhood Arrivals program for migrants illegally brought to the U.S. when they were children because Wolf did not have the legal authority to make such a move as acting secretary, rather than being confirmed by the Senate.
“Always a concern for that now,” one Senate Republican told The Hill. “Biden had several acting, [and] acting cannot make some decisions.”
The most glaring example of Trump’s penchant for relying on acting heads centered around the Office of Management and Budget where Russell Vought served as acting director for a year and a half before winning full Senate confirmation. He served in that role while then-OMB Director Mick Mulvaney took on the role of acting White House chief of staff.
Trump also relied on acting secretaries for sizable stretches elsewhere in his Cabinet. Patrick Shanahan became the longest-serving acting head of the Pentagon with his six-month tenure.
Some took on big tasks, like Trump’s last acting Defense Secretary Christopher Miller who made a trip to Afghanistan in December 2020 while the Trump administration was working to reduce the U.S. military forces in the country following Trump’s election defeat that year.
Former Environmental Protection Agency Administer Andrew Wheeler eventually won full confirmation to lead the agency, but not before having the acting label attached for eight months.
However, sources are indicating that Trump world and the transition team is more prepared for this go-around and not moving as haphazardly as 2017. Sen. Markwayne Mullin (R-Okla.), a top Trump ally on Capitol Hill, said that the plan currently involves stacking departments and agencies to ensure that those underneath a potential acting secretary can keep them up and running effectively.
“You’re going to see people that may be entering an agency that hasn’t been there before, but the deputy secretary is going to be more experienced [and] more seasoned,” Mullin said. “That’s why you’re going to see it stacked.”
Acting roles fall under the Federal Vacancies Reform Act, which means they are subject to its time limitations and can only run an agency for so long before needing Senate confirmation.
Once a vacancy occurs, an acting official is able to serve for 210 days — or nearly seven months — in the role, with that timeline potentially expanding depending on the fate of a Senate confirmation process. If a nominee is rejected, the acting official may serve in the role for an additional 210 days, with the clock resetting while another nominee is under consideration.
President Biden’s acting labor secretary Julie Su, who was serving as deputy secretary before former Secretary Marty Walsh left the top post, was unable to win full Senate confirmation to succeed Walsh after moderate lawmakers refused to back her nomination, which also garnered universal GOP opposition. This has left her in her current posture throughout the remainder of the Biden administration.
She has been able to serve as acting secretary indefinitely though because she was already confirmed by the Senate for her role as deputy secretary, the Government Accountability Office (GAO) said last year.
Despite his history, some predict Trump won’t rely on acting secretaries, given the GOP-control of the Senate by a three-vote margin.
“Presidents have generally only resorted to recess appointments and acting leaders after their own party has lost control of the Senate and they’re politically stuck,” said Bruce Mehlman, a GOP lobbyist and former official under President George W. Bush. “I suspect president-elect Trump intends to get his nominees confirmed by the GOP Senate.”
On top of that, selecting nominees that are sure to face tough confirmation fights brings their own challenges to the overall administration and can serve as a distraction from other top properties of the incoming president.
A second former administration official during Trump’s first term warned that spending political capital to help controversial nominees puts the Trump agenda at risk.
“This is also related to the apparent bad decision to kick 2025 appropriations until next year with a CR. This will further complicate the confirmation process and take time and energy away from President Trump’s real agenda,” the second ex-official said. “As in combat, conservation of resources should be a top concern.”