Acting Officials Can Govern for Years. They Deserve Scrutiny.

02/22/2021 12:00am

The American Prospect

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A lot has changed since Joe Biden assumed the presidency last month, but the federal government’s position in a case on the Voting Rights Act is apparently not one of them. It seems that Biden’s Department of Justice “does not disagree with the conclusion[s]” underlying Trump appointees’ argument before the Supreme Court that Arizona should be allowed to discard ballots. The person appointed by Biden to make this call, acting Solicitor General Elizabeth Prelogar, recused herself for undisclosed reasons and advised the Supreme Court that the DOJ “does not seek to make a further substantive submission” to defend the Voting Rights Act. Her decision effectively let the anti-democratic Trump briefs stand as the position of the United States government.

Political onlookers usually pay attention to high-level presidential appointments. Cabinet nominees naturally garner the most scrutiny, while fewer headlines are written as appointments are made further down the chain of the federal bureaucracy. The least attention is paid to acting officials, who hold jobs temporarily while permanent appointees go through lengthy confirmation processes. However, Prelogar’s choice to allow further erosion of the Voting Rights Act after less than a month on the job shows the remarkable power these officials have to determine federal policy. The same scrutiny given to high-profile nominees, including bans for anyone with corporate, BigLaw, and revolving-door connections, must be applied to acting officials across government.

Acting officials are not merely placeholders. The Federal Vacancies Reform Act allows actings to serve for up to 720 days—almost two years—or sometimes even more, depending on the timing of nominations and Senate action. That’s almost half of a president’s term, with the same powers as a Senate-confirmed nominee. The president also has extraordinary leeway in choosing actings. By default, the second-highest official in an agency becomes the head if there is a vacancy, but the president can override this rule to install any senior agency official or other Senate-confirmed individual as acting head. Considerable powers can also be delegated to political officials installed as “principal deputy,” such as Prelogar.

As it stands, former Trump officials scattered across the government have been elevated, thanks to the default order of succession. We know, for example, that outgoing Treasury Secretary Steven Mnuchin’s choice for acting comptroller of the currency is still leading that office. And the team leading the Biden Justice Department’s antitrust enforcement all got their current gigs under Trump.

The Revolving Door Project has repeatedly called on Biden to fire all Trump appointees. This is necessary, but not enough. The acting officials who step into these newly vacant roles must be ready and willing to use them to advance the public interest as long as they serve. This does not appear likely for many of the administration’s choices at the Department of Justice. Merrick Garland, Biden’s nominee for attorney general, has not yet taken office, but he has already placed his stamp on it through a series of high-level acting appointments. The actings are typically BigLaw corporate lawyers who, despite their Democratic bona fides clerking for Democratic Supreme Court justices and Garland himself, had no quarrels working at anti-union firms that defend white-collar criminals and service big-business interests.

Prelogar is a multiple-time revolver who moved between government and BigLaw firm work; for example, defending Puerto Rican debt vampires like Ambac. The current acting deputy attorney general, the second-most powerful position across the whole DOJ, is John Carlin, who just spent four years at BigLaw firm Morrison & Foerster. As acting head of the Civil Division, Brian Boynton pitted Biden’s DOJ against struggling student loan debtors by coming to the defense of Trump’s education secretary, Betsy DeVos, in a class action suit against her department’s predatory loan practices. Unsurprisingly, Boynton is an alum of the notoriously anti-union WilmerHale, a firm which should be watched particularly closely given Merrick Garland’s close personal relationship with Amazon board member and WilmerHale partner Jamie Gorelick.

People who spent years dodging, undermining, and overriding antitrust and white-collar criminal statutes for powerful interests have warped enforcement priorities. This is doubly true for the many appointees who view their work in government more as opportunities to gain inside knowledge for future corporate defense jobs than opportunities to carry out the mission of vital public agencies. Sherrilyn Ifill in The New York Times showed that legal work is not neutral: Elite “lawyers were centrally involved in perpetrating some of [the Trump administration’s] most repugnant excesses.” And if a firm or its partners worked with Trump, as many BigLaw firms like WilmerHale, O’Melveny & Meyers, and Kirkland & Ellis did, how can their partners be considered by a Democratic administration?

And honestly, even appointees who mostly view elite government jobs as career capstones to generate prestige are problematic. Government work is an opportunity to make “equal justice under the law” a reality, rather than a systematically violated civic creed. This country has a limited window to tilt the moral arc of the universe to justice, and people who spend most of their careers focused on recruiting clients capable of funding billable hours will lack the urgency of attorneys committed to the public interest.

The influence of actings will continue to be felt across government. Prelogar will soon need to decide whether or not the DOJ defends Trump’s border wall in Trump v. Sierra Club, or supports Medicaid work requirements in Azar v. Gresham. The Senate does not seem poised to quickly confirm the thousands of nominations Biden will eventually make, even if they abandoned arcane parliamentary rules that slow the process. In these circumstances, the same standards of scrutiny must be ruthlessly applied to every acting official, especially considering the total discretion Biden has to appoint and replace them. This means no Trump holdovers, no high-level BigLaw alums, no lobbyists or representatives of corporate America. If we wouldn’t be happy with them permanently in the job, we shouldn’t accept them in the first place.

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