Bernhardt Surrounded by Illegitimate Acting Officials

Washington, DC March 18, 2019 – The current nominee for Secretary of the Interior, David Bernhardt, has repeatedly violated the Federal Vacancies Reform Act by illegally delegating authority to multiple officials, according to a report issued today by Public Employees for Environmental Responsibility (PEER) under the title “Bernhardt’s Bad Actors.”  It charges Bernhardt with undermining the constitutional advice and consent power of the U.S. Senate even as he prepares to undergo that same process in coming weeks.

The Department of the Interior (DOI) now has eight improperly-designated quasi-acting officials in charge of most of its major bureaus. These unconfirmed political appointees manage more than 450 million acres of the public’s frequently-visited national parks, wildlife refuges, monuments, and rangelands, covering almost one-fifth of the nation’s land area.

Advertisement

The eight DOI political appointees occupy positions in violation of the Federal Vacancies Reform Act (FVRA), which allows for acting officials, but only under limited conditions, generally for a maximum of 210 days.  These eight either never qualified under the FVRA or, even if once were qualified were not appointed by the President, or now have exceeded the time that they could stay if properly appointed. The upshot is a big detour around the requirement of Senate advice and consent before filling those positions.

The DOI is tied for the lowest rate among all federal agencies of actual Senate confirmation for those positions that require it – a paltry 41% (as of February 2019). For most of the open DOI bureau leadership positions (Directors of U.S. Fish and Wildlife Service, Bureau of Land Management, and Office of Surface Mining and Reclamation and Enforcement, for example) there is no current presidential nominee.

“These noncompliant officials are essentially deputies to nobody,” stated PEER Senior Counsel Peter Jenkins who prepared the report. “Since Bernhardt has short-circuited the Senate confirmation process for those eight positions and made himself the only official with legal signature authority, he has centralized Interior’s decision-making authority to an unprecedented degree.”

The report focuses on Bernhardt signing a “Temporary Redelegations of Authority” memo on January 29, 2019, as Acting Secretary, to allow those lesser political appointees to occupy higher jobs, yet –

  • Only the President has the authority to name acting appointees;
  • The Redelegations are called “temporary” to serve the “Presidential transition,” but they have gone on for more than one year and four months now; and
  • The central legal authority Bernhardt cites is “Section 2 of the Reorganization Plan No. 3 of 1950,” the post-war DOI organization act signed by President Truman and which confers no delegation authority that would override the FVRA, enacted by Congress in 1998.

PEER has recently also called out Bernhardt’s actions to erode Congress’ power of the purse during the most recent shutdown, to suppress release of scientific assessments, and to impede Freedom of Information Act compliance.

“As an acting Secretary appointing other acting directors, David Bernhardt is a lead actor in circumventing constitutional checks and balances,” added Jenkins, who is submitting confirmation questions on Bernhardt’s actions. “His confirmation hearings will test whether the U.S. Senate will defend its institutional prerogatives during this administration.”

Read PEER “Bernhardt’s Bad Actors” report

Look at the legal cloud over illegal Interior appointees

See the order Bernhardt signed

Examine Bernhardt gaming the shutdown

View latest instance of Interior’s suppression of science