The Government Accountability Office (GAO) has determined that three Biden administration officials are serving in their positions unlawfully, having exceeded the time that officials can have the “acting” title.
According to their letters, the acting controller at the Office of Management and Budget, the acting director of the Department of Justice’s Office of Violence Against Women, and the acting general counsel at the Federal Labor Relations Authority, have all had acting directors for longer than the allowed period since all three have been serving since November 2021. The GAO letters that were issued state this violation and were sent to both President Biden and Congress.
The GAO’s decision is based on the 1998 law, the Federal Vacancies Reform Act, which claims that the maximum number of days that an official can hold an acting role is 210 days following the office being vacant, or 300 after the presidential inauguration. The only way for the acting role to be prolonged is if there is a permanent nomination pending, or if a nomination was withdrawn or rejected.
While this is a violation, there are limited consequences. The GAO also pointed out that the acting director of Immigration and Customs Enforcement (ICE) and the acting assistant administrator of the Bureau of Asia at the U.S. Agency for International Development were in violation, but a Government Executive noted that as both of those titles were recently changed there was no violation. The head of ICE, Tae Johnson, was previously the “acting director” but is now a “senior official performing the duties of director.”