The Trump administration’s method of keeping the controversial acting head of the Bureau of Land Management (BLM) in power even after his nomination is withdrawn is likely not legal, according to experts who have reviewed the orders.
But Pendley is still running the agency because of succession orders dictating that the acting chief will lead the department if the director role remains unfilled.
Legal experts say the succession orders are dubious because the officials whose tenure has been questioned are the ones assigning themselves their new positions. The order was written and signed by Pendley, essentially giving himself the authority to act as director.
That runs afoul of the Federal Vacancies Reform Act and allegedly the Appointments Clause of the Constitution. This law limits temporary appointments to 210 days. Not mentioned in this article is the consequence of such an illegal appointment, which is – (Congressional Research Report, citing 5 U.S.C. § 3348(d)):
Unless an acting officer is serving in compliance with the Vacancies Act, any attempt to perform the functions and duties of that office will have no force or effect.
The most direct means to enforce the Vacancies Act is through private suits in which courts may nullify noncompliant agency actions… The Vacancies Act renders noncompliant actions “void ab initio,” meaning that they were “null from the beginning,” by providing that such actions have “no force or effect.”
Do you suppose anyone might sue to void any of Pendley’s illegal political decisions?