Thursday, June 11, 2020

Interior move keeping controversial acting leaders in office faces legal scrutiny

By Rebecca Beitsch and Rachel Frazin - 06/09/20 06:00 AM EDT

A new Interior Department move to leave controversial temporary leaders in place indefinitely may violate laws on filling vacancies, legal experts say, and skirts requirements for Senate confirmation.

In a statement provided to The Hill on Friday, Interior said leaders for the Bureau of Land Management (BLM) and the National Park Service (NPS) will continue to serve in their roles pursuant to “updated succession orders.”

However, Interior refused to provide a copy of the new orders, leaving unclear the breadth of the directive leaving acting BLM head William Perry Pendley and acting NPS director David Vela in place.


Watchdog group Public Employees for Environmental Responsibility sued in April, arguing the orders violated the Federal Vacancies Reform Act by keeping the men in their posts beyond 210 days.

The orders “falsely asserted that the need for the ‘temporary’ re-delegations is due to the ‘Presidential transition,’ which now is long past more than three and one quarter years post-inauguration,” the group wrote in its suit.


Nina Mendelson, a law professor at the University of Michigan, said the legality of the order depends on just how much authority is being given to the two men. Assigning very limited duties might withstand muster, while a wholesale handing over of the role could be problematic.

“The issue is we don't know what’s in the succession order. If it changes one little function maybe we'd have fewer concerns about it, but if it’s transferring a significant number of functions from one office to another office or a particular person, it is potentially illegal,” she said.


The Trump administration has lost other cases when acting leaders' authority was challenged. In March, a federal judge threw out immigration policies implemented by acting Department of Homeland Security head Ken Cuccinelli.

"The actions taken by these people are void and don't have force of law," said Mort Rosenberg, an expert on vacancies law, adding that Pendley's and Vela's policies could be thrown out in court.

"This administration is consistently trying to find ways to avoid the confirmation power of the Senate."

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