Earlier this month, Interior Secretary David Bernhardt extended William Pendley’s appointment as the Acting Director of the Bureau of Land Management (BLM) for another three months. The BLM has not had a Senate-confirmed permanent director at any point during the Trump administration.
It is pretty clear why Mr. Pendley has not been formally nominated for the Director’s position—his extreme, ultra-conservative views and deep conflicts of interest would not win him confirmation in the Senate. Indeed, many groups are opposed to his appointment because of his record of opposition to the very mission of the agency he is leading.
Apparently, to the Trump administration, that’s a good reason to leave him in place in an acting capacity. But that is not what the law requires. The Constitution (Article 2) doesn’t say that if a nominee can’t be confirmed, don’t worry about it. It says appointments will be made by and with the advice and consent of the Senate. Clearly, a nominee who can’t be confirmed should not be appointed.
Too often, this administration has not bothered to go through the legally required process of nominating senior officials for consideration and confirmation by the Senate. In consequence, acting officials, who may not really have the authority to lead the agency to meet its mission, are left in charge. What’s more, an acting official is much less likely to challenge political directions from others in the administration, including the president, that don’t comply with the law or mission of their agency.
Pendley’s appointment for yet another acting term makes a mockery of the process of Senate advice and consent. He is making substantial changes at the Bureau, including accelerating leasing of public lands to the oil and gas industry. But, without Senate confirmation, his authority to do so is questionable. The administration should remove him from heading the agency, and nominate an actual, viable candidate to lead the bureau for consideration by the Senate. In the meantime, a senior career official can serve in an acting capacity to keep the agency on track. Such a career official will know the agency thoroughly and can adequately fill the job without an irrevocable commitment to new direction or use of public resources until an acceptable nominee can be confirmed. That’s how the process should work.