Acting Officials Gave Trump ‘Flexibility.’ Now They Could Sink His Terrible Policies.
After a slew of cabinet exits during his first two years in office, President Donald Trump pursued a controversial - and, courts have noted, sometimes illegal - strategy to protect the agency's chiefs from scrutiny of Senate confirmation: delaying formal nominations and officials set up "acting" roles.
"I'm in no hurry," Trump told reporters in January 2019. "I like 'acting'. It gives me more flexibility, you understand?"
This approach is now failing on a large scale. So far this year, three federal judges have separately found that William Perry Pendley, head of the Bureau of Land Management, and Ken Cuccinelli and Chad Wolf, two senior officials with the Department of Homeland Security, are in their de facto positions in violation of federal law on the reform of vacancies. The 1998 Act lays down rules for the temporary filling of vacancies in the executive branch and limits the time officials can serve in an acting role to 210 days.
In March, about nine months after Cuccinelli was appointed acting director of the United States Citizenship and Immigration Services, a U.S. district judge in Washington, DC ruled that Cuccinelli was never an option for the position, and consequently ruled that two guidelines, for whom he has restricted legal representation, asylum seekers must be made invalid.
Cuccinelli was also appointed Deputy Secretary for Homeland Security in late 2019. The Government Accountability Office found in August that Cuccinelli and Wolf, his boss as acting secretary for homeland security, were illegally in these de facto positions. A US district judge in Maryland agreed in a Sept. 11 ruling that Wolf “likely” violated inheritance law. The judge temporarily banned the Trump administration from enforcing new employment restrictions on asylum seekers that Wolf was involved in issuing. But both men remain in their positions.
Perhaps the biggest blow to the government came late last month when U.S. District Judge Brian Morris in Montana ousted Pendley, an anti-federal land extremist, as head of the state office and ruled that he had illegally served as acting director for 424 days . This decision was made in response to a lawsuit filed by Steve Bullock (D), Governor of Montana.
Monitoring groups are also questioning the legality of Margaret Everson's appointment as acting director of the National Park Service. Both the federal state and national park agencies sit in the Ministry of the Interior.
In the 1990s, William Perry Pendley published anti-environmental articles in a marginal magazine by conspiracy theorist and convicted fraudster Lyndon LaRouche. (Photo: AP Photo / Matthew Brown)
Scrap everything, say critics
Morris' decision could have wider implications than simply relieving Pendley of his duties to monitor 245 million acres of public land. It opens the door to legal challenges targeting every decision, policy and order of the Bureau of Land Management since he was appointed acting director in July 2019.
"The Court recognizes that any" function or duty "of the BLM director performed by Pendley would have no power or effect and should be set aside as arbitrary and capricious," wrote Morris in his statement. The judge gave the Home Office and Bullock 10 days to submit information about which of Pendley's orders should be voided.
Bullock has since asked the court to block three land use plans Pendley approved to open large swaths of federal government-controlled land in Montana to fossil fuel development. Bullock told The Associated Press that he was only questioning decisions made in Montana and would leave it to others to review Pendley's actions elsewhere.
Environmental and public land advocacy groups quickly put together their own lists. In a letter to Interior Minister David Bernhardt earlier this week, a coalition of 60 conservation organizations described dozens of measures, plans and regulations that they believed should be annulled. The list includes dozens of resource management plans, oil and gas leases, and environmental statements, as well as the move of BLM headquarters from Washington, DC to Grand Junction, Colorado.
"What a jumble they've woven," said Tracy Stone-Manning, Bullock's former chief of staff and current vice president of public land at the National Wildlife Federation, one of the groups that organized the letter. “All they had to do was appoint and approve someone, and they decided to bypass the constitution and the law. And there will be consequences. "
Steve Bullock, governor of Montana, filed a federal lawsuit against Pendley's tenure at the head of the Federal Bureau of Land Management in August. A judge ruled last month that Pendley had served illegally in the acting director's position for more than 400 days. (Photo: William Campbell via Getty Images)
Meanwhile, the Trump administration, which had done a surprising amount to defend the president's toxic BLM stance, responded to the judge's request by suggesting that Pendley had done nothing significant in his role and that nothing needed to be reversed will. "Careful examination shows that no relevant action was taken by Mr. Pendley - and not by any other Bureau of Land Management officials - let alone by the exclusive authority of the director," the Home Office said in its court letter.
The Home Office, which argues Pendley is an unimportant official kept on a short leash, is an exceptional departure from its comments last year.
When Trump announced his intention to officially nominate Pendley for the job of BLM director this summer - a nomination he withdrew less than two months later after it became clear that his candidate was unlikely to be confirmed - Secretary Bernhardt applauded Pendley as "Leader" "Do a great job." And when the entire Senate Democratic caucus signaled that he would vote against the nomination, a White House spokesman came to Pendley's defense, calling him "a true son of the West" and an "accomplished civil servant" and applauding "his careful leadership." BLM headquarters on its move to Colorado.
Pendley, a former property rights attorney, was appointed to a senior position at BLM in July 2019 and was quickly promoted to acting director. He remained in that role through a number of controversial temporary reappointments, even drawing up and signing a succession warrant to remain at the helm of the office indefinitely.
Critics in the conservation community saw Pendley's appointment as a prime example of Trump using a fox to guard the chicken coop, and he has been the subject of constant negative headlines since joining the administration. As a private attorney, he had sued the federal government several times, often railed against environmental "terrorists" and "eco-fascists", compared the climate crisis to a "unicorn" because "both of them do not exist", and above all argued the federal states, for which Trump is responsible shouldn't be held by the government.
President Donald Trump listens as Home Secretary David Bernhardt speaks during an environmental event at the White House in July 2019. (Photo: AP Photo / Evan Vucci)
"You can't even shoot straight ahead"
The appointment of the self-proclaimed "mugwort rebel" through the back door now threatens to significantly undermine Trump's state agenda. And the Home Office, which is trying to distance Pendley from all BLM decisions, appears to be a desperate attempt to prevent the courts from unraveling the government's pro-industry efforts in BLM countries.
Carl Tobias, a professor in the University of Richmond Law School who closely follows the presidential nominations, noted that a government posing as an advocate of the law has proven time and again that "they can't even shoot directly." .
"This could be revolutionary in a sense," said Tobias of Morris' decision. "It could reverse a lot of the perverted activity the government has been involved in. The stakes are pretty high and this could just rip things off."
The rainfall could last for months or even years. Environmental groups are likely to file multiple requests for public records to determine the extent of Pendley's involvement in BLM activities, and these documents could ultimately become the basis for future legal challenges.
The Interior Ministry has announced that it will comply with the court order but has promised to appeal. Pendley's title on the BLM website no longer includes the words "Exercising the Director's Authority," and The Hill reported that Bernhardt has taken over the running of the office.
Even if the administration has made an effort to protect BLM measures over the past year, it insists that nothing will really change. In an interview with Colorado Politics last week, Bernhardt condemned environmental groups as "completely detached from the reality of the legal process".
"I know there are stakeholders who have hypothesized how things will happen," he said. "What I would tell you is that your hopes and dreams will soon be destroyed."
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Public land will play a big role in 2020 elections in the west
Trump is desperate to improve his pre-election record
Federal judge ousts Trump's head of the Bureau of Land Management
This article originally appeared on HuffPost and has been updated.
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