White House’s Missed Deadline on CDC Pick Constrains Acting Role

Without a new nominee for the Centers for Disease Control and Prevention by Wednesday’s deadline, acting director and current head of the NIH Jay Bhattacharya is poised to stay a top the agency with new constraints on his duties.

The CDC has been under temporary leadership since Aug. 27, when former Director Susan Monarez was ousted a few weeks after being sworn into office. Acting officials for Senate-confirmed positions are time-limited to serve for 210 days after a role becomes vacant.

Filling the role has presented a challenge for President Donald Trump, looking to balance pushback to US Health Secretary Robert F. Kennedy Jr.'s skeptical approach to vaccinations and the “Make America Healthy Again” movement. Sen. Bill Cassidy (R-La.), whose committee holds jurisdiction over the nomination, has split with Kennedy over his aggressive moves to tighten federal vaccine recommendations.

With the deadline for a new nominee passed, the White House may technically delegate the duties of the position to a senior official, with the title of “official performing the duties of,” according to Jake Andrejat, press secretary for Partnership for Public Service, a nonpartisan nonprofit focused on the workings of the federal government.

The Department of Health and Human Services on Wednesday confirmed Bhattacharya would stay atop the CDC for now.

“Dr. Bhattacharya will continue to oversee the CDC by performing the delegable duties of the CDC director,” HHS spokesman Andrew Nixon said in an email. “Secretary Kennedy and Chris Klomp are working with the White House on the CDC director search by evaluating candidates that can further the Trump administration’s objective of restoring the CDC to its original mission of fighting infectious disease.”

The title change, however, complicates what tasks fall under Bhattacharya’s jurisdiction.

“Under the Vacancies Act, when you are doing the job through delegating as opposed to the acting title you can only perform what are known as nonexclusive or delegable functions of the job,” said Anne Joseph O’Connell, a professor at Stanford Law School who specializes in administrative law and the federal bureaucracy.

Approving vaccine recommendations from the Advisory Committee on Immunization Practices, for example, is an exclusive duty to the CDC head.

O’Connell said if an acting director is no longer in place, that task cannot be delegated to another senior official and can only go up to Kennedy, who is over the CDC as the head of the HHS.

Nominating a new CDC director will pause the clock for Senate consideration, and an acting official can continue to serve in the role. But if the nominee is rejected, returned or withdrawn, then the acting official has another 210 days for the president to nominate someone else.

If two consecutive nominees both do not move forward, then no acting official may serve in the position until the next administration. Monarez was not Trump’s first nominee for CDC chief: former congressman Dave Weldon withdrew amid opposition from senators last year. However, because Monarez was confirmed, this would restart.

The role of CDC director only recently became a Senate-confirmed position, and Monarez is the only former director to go through this process.

Legal Challenges

Passing the 210-day deadline could invite a legal challenge to actions taken by the acting official.

“It’s important that the administration be aware that in the past courts have struck down the actions of officials who were found to not be lawfully serving,” said Michael Thorning, director of the structural democracy project for the Bipartisan Policy Center.

In January, the US Court of Appeals for the Third Circuit held in USA v. Giraud that the administration could not delegate all of the nonexclusive functions of a role to one person, a US attorney, as that violates the Vacancies Act.

“I think the Third Circuit came to the wrong conclusion about the Vacancies Act and delegation, but I do think the Third Circuit serves as a beacon for potential litigants to what seems to be coming at the CDC,” O’Connell said.

Earlier this month, a federal judge ruled in favor of Voice of America staffers who had challenged Kari Lake’s authority as head of the US Agency for Global Media, citing concerns over the Federal Vacancies Reform Act and the Constitution’s appointments clause.

During former President Barack Obama‘s administration, the Supreme Court’s ruling in NLRB v. SW General, Inc. made it harder for the administration to attempt to sidestep Senate confirmation of the president’s nominees.

Delegation of Work

Other open positions do not face the same time crunch as the CDC director.

There is no official acting surgeon general, while the Senate continues deliberating Casey Means’ nomination. HHS Chief of Staff and Senior Adviser Stephanie Haridopolos has been performing some of those duties in the interim.

The appointments clause grants the president the discretion to fill roles within the administration, subject to Senate approval. Trump has not nominated anyone to serve in eight empty HHS roles, many of which would be eliminated under a proposed department-wide restructuring being litigated.

HHS has proposed consolidating several agencies and moving some of their functions under the MAHA-inspired Administration for a Healthy America.

The president has not nominated anyone for the positions of the assistant secretary for aging and administrator of the Administration for Community Living, the assistant secretary for planning and evaluation, the assistant secretary for preparedness and response, the assistant secretary for mental health and substance use, and the commissioner for the Administration for Children, Youth and Families, according to the Partnership for Public Service’s Political Appointee Tracker.

Those functions would be most affected by a restructure, and their duties have been delegated.