Paralysis in the Pentagon

Hamas’s surprise attacks on Israel over the weekend have launched a new round of violence that, beyond the current crisis, underscores the danger of escalation in any number of regional conflicts. The United States’ military forces in the Middle East are supposed to be able to respond if the need arises—but right now, politics at home are complicating the Pentagon’s long-term contingency planning. For months, the nominations of several top U.S. military officers slated to take command over forces in the Middle East have been left in limbo. President Joe Biden’s choices for the next deputy commander of U.S. Central Command (which oversees U.S. military operations in the region) and the next commander of the U.S. Navy’s Fifth Fleet (which is responsible for the Persian Gulf, Red Sea, and the North Arabian Sea) have been stalled in the U.S. Senate because of a standoff between the administration and a lone Republican senator, Tommy Tuberville.

Since February, the Alabama senator has imposed a blanket hold on Senate consideration of senior Defense Department nominations in protest of a Pentagon policy that covers leave and travel costs for service members seeking reproductive health care outside of states where they are stationed. The standoff has halted more than 300 military promotions and civilian nominations, creating vacancies throughout the Department of Defense. The U.S. Navy and Air Force currently lack Senate-confirmed service chiefs, leaving a quarter of Joint Chiefs of Staff positions in the hands of acting officers. Secretary of Defense Lloyd Austin has described Tuberville’s hold as “unprecedented in its scale and scope” and warned in May that it could stall up to 650 Senate confirmations by the end of the year.

The Senate can bypass Tuberville’s hold on a case-by-case basis, as it did last month by holding individual votes to confirm the new chairman of the Joint Chiefs of Staff and the top military leaders of the army and Marine Corps. But this process requires granting valuable floor time to military promotions that are usually confirmed in large batches. And although filling a handful of top positions was a welcome development for U.S. national security, it does not change the fact that hundreds of other nominations remain stalled. Nor does it address the outsize power of a single senator to block routine promotions.

Senators from both parties have tried to break the impasse, but they have failed to persuade Tuberville to back down. He claims that his hold does not compromise military readiness because the unconfirmed positions “are being fulfilled by acting officials.” This argument misses the point. It minimizes the ramifications of politicizing military promotions and of relying on acting officials to shoulder critical national security responsibilities. The deputies who step into these vacancies often lack the rank or qualifications required to fill the roles permanently. Some of them are effectively forced to do two jobs at once. And in cases where deputies have in fact been nominated for the more senior position, they often end up assuming the duties of the higher office before they are confirmed, which undermines the Senate’s power of advice and consent.

These holdups would disrupt any government agency, but they are especially pernicious at the Pentagon. A growing reliance on acting officials erodes civilian control of the military, and delays in the confirmation process put the futures of uniformed officers at the mercy of partisan agendas. Defense officials who lack the imprimatur of Senate confirmation find the legitimacy of their actions questioned by colleagues, lawmakers, and foreign counterparts. As temporary custodians of vacant offices, they may be reluctant to initiate the kinds of reform programs that would enhance U.S. national security. And in the absence of firmly installed civilian leaders who can speak with authority on security policy, active generals may be pressured to wade more deeply into the realm of politics.

Congress can prevent these prolonged interregnums during periods of personnel turnover. It can start by amending laws on how federal vacancies are filled and revising Senate procedures to limit individual lawmakers’ capacity for obstructionism. Reforming the way the Congress confirms presidential appointees and fills temporary vacancies will bolster confidence in the Pentagon’s civilian leadership and help insulate the military promotions process from partisan politics. It will preserve the United States’ effectiveness on the battlefield and secure the vital democratic principle of civilian control of the military.

EMPTY CHAIRS

Across the U.S. government, elected leaders exercise their legal prerogative to fill federal vacancies. The principal legislation guiding this process today is the Federal Vacancies Reform Act, which Congress passed in 1998 to give presidents some flexibility in designating acting officials to fill vacant offices temporarily. The purpose of the law was to provide an interim fix to ensure continuity of government during presidential transitions, national emergencies, and routine personnel turnover. But protracted vacancies have become increasingly common—and Congress and the president are both to blame. According to the Partnership for Public Service, a nonprofit organization, the average Senate confirmation process today takes twice as long as it did in the 1980s. Lengthy confirmation battles leave critical functions to be performed by acting officials, sometimes for years at a time.

Presidents, for their part, confronted with a drawn-out confirmation process, have strategically used acting officials to impose the administration’s political priorities on executive departments and agencies without the consent usually conferred by Congress. Sometimes, presidents have intentionally left offices vacant, seemingly to weaken the authority of a particular department. Barack Obama and Donald Trump both dragged their feet in nominating replacements for the six members of the Federal Election Commission, for example. The commission was unable to meet during part of the 2020 election cycle because three of its seats remained vacant.

For some offices, such as those at the Department of Homeland Security, the president’s latitude to designate acting officials under the Vacancies Act has been circumscribed by additional statutes and regulations. The resulting ambiguity of acting officials’ authority can make it possible for courts to strike down their policies. In November 2020, for instance, a federal judge invalidated a memorandum issued by Acting Homeland Security Secretary Chad Wolf that imposed limits on the Deferred Action for Childhood Arrivals program for young undocumented immigrants. The court concluded that Wolf had not been serving legally as acting secretary according to department regulations.

Protracted vacancies have become increasingly common—and Congress and the president are both to blame.

Even when the legality of acting officials’ status is undisputed, the staff of the departments and agencies they lead may question the legitimacy of their authority. Researchers at the Partnership for Public Service have likened acting officials to substitute teachers, who may have plenty to offer students but are not seen as having much influence over those students’ long-term progress. “To effectively lead an agency, you need as much authority and gravitas as you can muster,” Robert Bonner, the former head of the Drug Enforcement Administration, told The Wall Street Journal in 2019. “If you’re not a confirmed head of an agency, you’re not going to be able to command as much respect and attention from your own people and from other agencies.”

The problem of lengthy vacancies was particularly acute under Trump. The Defense Department was hit particularly hard, operating without a Senate-confirmed secretary for more than six months in 2019. Other high-level positions in the Pentagon cycled through temporary officeholders. The offices of the undersecretary of defense for policy and the comptroller, for example, were each open for almost two years in total. The office of the undersecretary of defense for personnel and readiness sat vacant for nearly three years. And acting officials performed the duties of the army, navy, and air force service secretaries for months at a time.

Trump went so far as to reshuffle officials from other parts of the government in an effort to stack top posts with White House loyalists. In the waning days of his administration, he purged the Pentagon of much of its Senate-confirmed civilian leadership, starting with Secretary of Defense Mark Esper. Then, he used authorities consistent with the Vacancies Act to bypass the Defense Department’s order of succession, installing political allies over the sitting deputy secretary of defense and other Senate-confirmed Pentagon officials. This tumultuous turnover raised doubts about the reliability of the Pentagon leadership and contributed to a breakdown in standard operating procedures. “There was a feeling of unsteadiness in the building for a period of time because of all these moves,” then Chairman of the Joint Chiefs of Staff Mark Milley recalled in 2021, referring to the staffing changes. “My phone was burning up. I was getting calls from not only overseas but all kinds of senators and congressmen about the steadiness of the building, the Pentagon.”

Gutting the Pentagon’s civilian leadership had the uncomfortable effect of casting the chairman of the Joint Chiefs and other military leaders as rare symbols of stability amid a turbulent presidential transition, which culminated in the violent assault on the U.S. Capitol on January 6, 2021. The contrast between military leaders’ steadfastness and newly elevated civilian officials’ perceived fecklessness in the midst of chaos strained democratic civil-military norms, which emphasize a responsible, accountable civilian leadership to oversee the armed forces. “You’ve got a series of guys in the Department of Defense, which is the biggest bureaucracy in the nation . . . with incredibly powerful capabilities that stretch all over the world, and everybody’s acting,” Milley recalled about this period. “None of them are Senate-confirmed. That should cause people pause right off the bat.”

THE DAMAGE TO DEFENSE

Now, Tuberville’s hold is introducing a similar kind of precarity to the military. To fulfill its advice-and-consent role as outlined in the U.S. Constitution, the Senate confirms the promotion of every commissioned officer to ranks above captain and its equivalent grades in the regular and reserve forces. Before these cases are put before the Senate, military selection boards subject all officers up for promotion to competitive, merit-based evaluations. This screening allows the Senate to approve hundreds of promotions at once as long as all senators present give unanimous consent. But a single objection turns this streamlined process into a time-consuming task. If promotions cannot be approved by unanimous consent, senators are forced to debate and vote on each promotion individually.

Because Senate floor time is a limited resource, Tuberville’s objections effectively impose a blanket hold on pending senior military promotions. The Pentagon has had no choice but to keep some officers in their current positions until their designated successors can assume their jobs, delaying deployments, reassignments, and retirements in ways that have cascading, long-term consequences across the armed forces. In cases where military leaders have reached statutory time limits in their current assignments, deputies or first assistants are called on to perform the duties of vacant offices alongside their current responsibilities.

Top military posts that are critical to U.S. national security have remained vacant or have been filled by acting officers standing in for higher-ranked generals and admirals. The office of the U.S. military representative to NATO has been empty since May, for example, even as the war in Ukraine rages. A protracted vacancy in such an important role impedes Washington’s ability to carry out its foreign policy objectives. When foreign officials are forced to engage with acting officers whose authority is limited and who may not even hold a sufficiently senior rank, their confidence in their American interlocutors diminishes, damaging long-term relations. As one U.S. Marine official told CNN, it is not “a good look for a key ally to be meeting with a one-star.”

The current standoff also threatens to politicize the military promotion process.

Beyond the damage to the United States’ image and effectiveness abroad, Tuberville’s blanket hold also undermines long-standing political norms at home. Because of the paralysis in the confirmation process, some presidential appointees began serving in the positions to which they were nominated before being confirmed. Biden’s nominees to lead the army, navy, air force, and Marine Corps have all been forced to assume the roles of acting service chiefs while awaiting Senate confirmation; in fact, two of these deputies are still performing the duties of the top jobs while their nominations are pending. This reverse sequencing—an extremely rare occurrence before this year—risks rendering the Senate’s advice-and-consent role obsolete. It sends a clear message that confirmation is not a prerequisite for performing the duties of high office.

The current standoff also threatens to politicize the military promotion process in ways that could erode professional military norms and weaken democratic civilian control over the armed forces. Although senators from both parties have blocked promotions in the past, few efforts have been as sweeping or protracted. Tuberville’s hold sets a dangerous precedent. As the months drag on, delaying deployments, pay raises, and retirements, military officers have waded deeper into political advocacy on behalf of their personnel. In July, for instance, the deputy commanding general of U.S. Army Europe and Africa pleaded with a group of visiting senators to break Tuberville’s hold, later calling the impasse “reprehensible, irresponsible, and dangerous.” Democratic civil-military norms generally discourage active-duty officers from making such politically charged statements.

Perhaps just as dangerous is the potential for division within the armed services as military brass are pitted against the rank and file. Tuberville has argued that his hold affects only a small number of high-level officers whose ranks, in his view, are already inflated, whereas “the people who actually fight are not affected at all.” The Senate has indeed continued to promote officers to positions below one-star ranks. But this rank-based cutoff and the ill will it generates only reinforce artificial divisions within the officer corps. And contrary to Tuberville’s claims, many officers whose promotions he obstructs have served on multiple combat tours over the last two decades. By echoing disparaging comments made by other Republican politicians about the senior officer corps, Tuberville may also exacerbate partisan divisions over support for the military among lawmakers and the general public.

BREAKING THE BLOCKADE

To reduce real and perceived risks to democratic civil-military norms and military readiness, Congress should reform federal vacancies laws and eliminate blanket holds on military promotions and civilian nominations. In their current form, vacancies laws are too easy for lawmakers to exploit, creating tempting pathways for elected officials to obstruct the appointments process without suffering the political fallout that a more comprehensive disruption of government functions would bring. Instead, departments muddle through with disempowered acting officials at the helm.

Straightforward changes to the Vacancies Act can ensure steadiness in the Pentagon while nominees for top posts await Senate confirmation. First, Congress should narrow the pool of candidates eligible to become acting officials in top Defense Department jobs. Rather than allow the president to designate Senate-confirmed appointees from any federal agency to serve in this capacity, the choices should be limited to Senate-confirmed deputies and first assistants who already work in the Pentagon. If those offices are also vacant, the president should be required to follow the Defense Department’s order of succession and elevate the next-highest-ranking Senate-confirmed official to the post. Only after exhausting this list should the president be permitted to bring in an acting official from another part of the government. With these rules in place, temporary civilian leaders will possess Senate endorsement to serve in the Pentagon, reinforcing their authority over the uniformed services during periods of leadership transition.

This reform will also improve compliance with other laws Congress has put in place to bolster civilian control of the military. To be confirmed as secretary of defense, a nominee with previous military service must be either seven or ten years removed from active duty, at a minimum, depending on the rank at which they retired. A seven-year “cooling off” period also applies to the deputy secretary of defense, the secretaries of military service departments, and the six undersecretaries of defense. This requirement helps ensure that civilian officials are fully extricated from the military hierarchy and service cultures before assuming oversight roles. To provide the same assurance during leadership transitions, Congress should explicitly require that all acting civilian officials also be at least seven years removed from military service.

Furthermore, Congress should prohibit individual senators from placing blanket holds on military promotions and civilian nominations in the Department of Defense. Lawmakers will no doubt be concerned about the consequences of removing this source of procedural leverage currently available to the Senate’s minority party. But senators would still have the opportunity to vote against nominations and object to individual military promotions on a case-by-case basis. For example, Senator Claire McCaskill, a Democrat from Missouri, used such a mechanism in 2013 to block the promotion of an air force lieutenant general who had granted clemency to a subordinate convicted of sexual assault. Ending blanket holds would keep the Senate’s constitutional authority intact while minimizing disruption to the routine functions of U.S. national defense.

Allowing Pentagon appointments to languish has a corrosive effect on civil-military relations. By implementing reforms, Congress will preserve the military’s nonpartisan ethos and restrain lawmakers from misusing federal vacancies laws. It will safeguard its own advice-and-consent role in confirming presidential appointments. And it will ensure that qualified leaders are properly in place to exercise effective civilian control over the armed forces that serve the United States.