January 25, 2017

The U.S. Senate has locked in a schedule for a vote on confirming the nomination of Elaine L. Chao to be Secretary of Transportation. The vote will be held at 12:20 p.m. on Tuesday, January 31.

There will be 20 minutes of debate starting at noon – and if her confirmation hearing was any indication, it will be laudatory indeed – prior to the vote.

The Commerce, Science and Transportation Committee approved Chao’s nomination by voice vote on the morning of January 24, and chairman John Thune (R-SD) went to the Senate floor and propounded the unanimous consent agreement that evening which schedules the Tuesday vote.

It had been hoped that the Chao nomination would be approved by the Senate as early as Inauguration Day itself, but her nomination fell victim to a general hardening of partisan lines on the overall nomination process by Democrats and the need by the Majority Leader to prioritize national security nominations over other departments like transportation (even though Chao is the Leader’s wife).

The Senate is voting on Monday evening on a motion to invoke cloture and limit debate on the nomination of Rex Tillerson to be Secretary of State, and if the Leader can get 60 votes in favor of that, there then follows a 30-hour period during which no other business is supposed to take place. But Thune’s agreement specifically disregards the cloture rule, so Chao’s vote will take place at mid-day Tuesday and allow her to be sworn in and take up the job as early as Tuesday afternoon.

Until then, the Acting Secretary of Transportation is Federal Aviation Administration head Michael Huerta.

The top two persons in the order of succession for the Office of the Secretary are listed in 49 U.S.C. §102, and the rest of the list is set in 49 C.F.R. §1.17, which was last amended by a rulemaking in April 2016. It is also consistent with Executive Order 13485, signed by President George W. Bush on January 9, 2009.

Readers may notice that way, way down the list is the Administrator of the Research and Innovative Technology Administration. RITA no longer exists – it was abolished by sec. 6012 of the FAST Act of 2015 and its functions were transferred over to a new officer created by sec. 6011 of the FAST Act, the Assistant Secretary for Research and Technology. DOT at some point needs to amend the succession order to reflect that.

However, EO 13485 also says that “No individual who is serving in an office listed [in the succession order] in an acting capacity, by virtue of so serving, shall act as Secretary pursuant to this section.” So that automatically moves the order of succession all the way past all the acting General Counsel and acting Assistant Secretaries down to Huerta, the 10^th in line, being the most senior person at a job on the list who is not currently serving in an acting capacity. The FAA Administrator serves a fixed five-year term, and Huerta’s term does not expire until January 2018.

(Ed. Note: If Huerta had also resigned, then under the order, the Acting Secretary would be Dennis Roberts, the head of the FAA’s regional office in Atlanta. After that, it’s John Cater in the FHWA Lakewood, Colorado office, and finally, K.C. Yanamura in the FAA’s Renton, Washington office.)

The ability of persons to serve in an acting capacity in jobs that require Senate confirmation is governed by the Vacancies Reform Act of 1998, which is a rather complicated read but is easily explained by this Congressional Research Service report.

At the various DOT offices, the senior career staff are temporarily in charge.

In places where the Deputy is a career (non-political) appointment, the Deputy serves as the Acting Administrator or Acting Assistant Secretary etc. But at most modal Administrations, both the Administrator and the Deputy are political posts, so the chief non-political person, the Executive Director, slides over to serve as Acting Deputy and thus also as Acting Administrator.

Meanwhile, Presidential appointees that do not require Senate confirmation – either in the Senior Executive Service or “Schedule C” pay grades – have already started to work at USDOT, but the official actions they can take are limited until Sec. Chao is sworn in. By law, all the power is vested in the Secretary – or, in some instances, a particular modal Administrator – and as we have seen, the new SES and Schedule C’s can’t really give many official orders in the name of a Secretary-to-be who has not yet been confirmed.

However, when dealing with purely administrative and internal matters, in cases where it is pretty clear that the new political appointees are giving orders on behalf of the White House and with the approval of the incoming Secretary, most career agency personnel usually figure it’s best to get with the program, where it does not conflict with statutes.

According to media reports, Michael Britt, a former lobbyist and former staffer for House Highways and Transit Subcommittee chairman Sam Graves (R-MO), will be chief of staff for Secretary Chao.