Chao Resigns From DOT in Protest

Chao Resigns From DOT in Protest

January 08, 2021  | Jeff Davis

Transportation Secretary Elaine Chao was the first Cabinet-level Trump official to resign in protest of President Trump’s role in inciting the mob that attacked the Capitol Building on January 6. Her announcement was rumored that night but not confirmed until mid-day on the 7th.

Her message to USDOT employees read as follows:

(She also just posted a farewell video.)

Per the official succession regulation at 49 CFR §1.17, the Deputy Secretary is next in line to be Acting Secretary, but the Deputy job has been vacant since Jeff Rosen left in May 2019. Then the Deputy Secretary is in line, but that job has been vacant since Derek Kan left in July 2019. That leaves General Counsel Steven Bradbury, who would seem to be set to be Acting Secretary for the last nine days of the Trump Administration.

However, the President has wide latitude to go outside the normal line of succession and name someone else as Acting Secretary, per the extremely confusing Vacancies Reform Act of 1998. Trump could name anyone who has been confirmed by the Senate to any Presidentially appointed position, at any agency, and make them Acting Secretary of Transportation. Or he could name any USDOT employee as Acting Secretary, so long as that employee has already been on the job for at least 90 days and gets paid at a rate of GS-15 or higher. President Trump has used this vacancy power to deviate from the normal succession order at several other departments (Justice, Homeland Security).

As to what happens after noon on January 20, the White House yesterday finally notified all political appointees throughout the government that they need to hand in their resignations by that point, which is customary so that the new President does not have to waste time in his opening days tracking down and firing almost all of them. So it appears that, starting at noon on the 20th, Federal Aviation Administrator Stephen Dickson, who serves a fixed five-year term that commenced in August 2019, will become Acting Secretary until the Senate confirms Pete Buttigieg for the Secretary job.

Meanwhile, most of the senior political appointees at the FAA below Dickson also quit their jobs in protest yesterday, including the Acting Deputy Administrator (who is also the Chief Counsel), the Assistant Administrator for Policy, the Assistant Administrator for Airports, and the Assistant Administrator for Communications. All will leave on Monday the 11th, along with Secretary Chao. Maritime Administrator Mark Buzby tendered his protest resignation this morning. More protest resignations by senior DOT staff are possible, but we are also getting to the point where those people would have to be resigning anyway on January 20.

Chao sent a resignation letter yesterday to President Trump that was clearly written much earlier and was clearly intended as a valediction to take effect on January 20 – it is a two-page list of Trump Administration transportation accomplishments, with this bit pasted at the end: “Lastly, I had planned on serving through to the end of your term of office. But after yesterday’s events at the U.S. Capitol, I will resign as U.S. Secretary of Transportation, effective Monday, January 11, 2021 to provide a short period of transition.”

The USDOT accomplishments cited in Chao’s letter include:

  • Full deployment of positive train control (PTC) technology over 57,000 rail route-miles.
  • Distributing $35 billion of CARES Act funding.
  • Prioritizing infrastructure in rural areas (and they certainly did that).
  • Licensing the first commercial space transportation for live passengers.
  • Establishing the NETT Council to promote transportation innovation.
  • Regulatory reform (her word), including the CAFE rule, the LNG-by-rail rule, and the trucker hours-of-service rule.

(What follows is opinion, not news coverage per se.) In the end, Chao may be best remembered as a Secretary who made USDOT an island of relative normalcy in an Administration that grew more erratic with each passing year. When she was selected, she had a resume (former maritime official, former Deputy Secretary of Transportation, former Labor Secretary) qualifying her for the job, and no one would have been surprised if, had Jeb Bush, Marco Rubio, Mike Huckabee, John Kasich, or any of the other non-Trump Republicans that ran for President in 2016 won, they had named her to be their SecDOT. She was among the most conventional of Trump’s Cabinet picks.

And once she was confirmed as Secretary, she had a form of job security afforded to no other Cabinet secretary. While Chao was an established transportation figure before she ever met her husband (she had already chaired the Federal Maritime Commission and served as Deputy Secretary of Transportation before they met), that fact that she is married to the Senate Majority Leader, of the President’s party, made her uniquely un-fireable, because President Trump needed Mitch McConnell, on most days, more than McConnell needed Trump.

It should not be surprising that Secretary Chao resigned shortly after the President incited a riot that threatened the safety of McConnell and others as they were trying to carry out their duties. But, given how firm an anti-Trump line McConnell took on the proper counting of electoral votes, in a blistering speech just before the riot, it would not have been surprising if Trump had fired Chao, either, even if no riot had taken place at the Capitol.

The worst transportation crisis of her tenure, the Boeing 737 Max fiasco, didn’t really reflect on Secretary Chao. Even though the Federal Aviation Administration is, by far, the biggest employer within DOT, back when Congress wrote the law creating DOT in 1966, there were concerns about political interference from a Secretary affecting aviation safety. So the law, still in effect today, vests safety regulatory functions with the FAA Administrator, not the Secretary, and the Secretary only has very limited power to overrule the FAA Administrator on safety decisions.

It would have been nice to see the proposed surface transportation reauthorization bill that the Department put together under Chao’s leadership, but the White House Office of Management and Budget never approved the proposal for submission, so the Trump Administration will go down in history as the only post-WWII Administration never to have submitted a highway reauthorization bill to Congress.

In the end, was being a sane, conventional, normal Cabinet Secretary enough? Maybe, maybe not. But amidst the chaos that plagued so many other parts of the federal government over the last four years, Secretary Chao kept all the essential functions of the Department going (even giving out mass transit discretionary grants, after taking a year off in 2017) and made a few policy innovations on the tech side while taking the same regulatory approach that most other Republican Administrations would have taken. And that is a significant accomplishment.

The opinions expressed above are those of the author and do not necessarily reflect the views of the Eno Center for Transportation.

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