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GAO finds 3 Biden administration officials are in their ‘acting’ positions unlawfully

The Hill logo The Hill 2/8/2023 Alex Gangitano
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Three officials of the Biden administration are serving in their positions unlawfully because they have exceeded the amount of time officials can use the “acting” title, the Government Accountability Office (GAO) determined on Wednesday.

The positions — 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 had acting directors for too long, Government Executive first reported on Wednesday. 

The GAO determined the three officials have been serving since November 2021 and therefore have exceeded the limit. The office issued letters spelling out the violations to President Biden and Congress.

The GAO’s decision was based on a 1998 law, the Federal Vacancies Reform Act, that says presidents can name officials to an acting role for 210 days after the role becomes vacant or 300 after the presidential inauguration. The acting role can continue for longer while a permanent nomination is pending or if a nomination is withdrawn or rejected, Government Executive explains. The consequences though are limited for violating this law.

GAO also flagged for the president 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.

In both those instances, according to Government Executive, the officials’ titles were recently changed and they are no longer in violation. The head of ICE, Tae Johnson, was “acting director” and now is “senior official performing the duties of director.” ICE has also not had a confirmed director since 2013 and has had eight acting directors since.

The White House did not immediately respond to The Hill’s request for comment.

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