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Wonkology: The Vacancies Act

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February 6, 2018

The law that allows government employees who were not appointed to a federal position requiring the advice and consent of the Senate to perform the functions of that office on a temporary - or "acting" - basis.

Now or Never

The Appointments Clause requires certain offices to be filled by presidential nomination followed by the advice and consent of the Senate (i.e., confirmation). Although the Supreme Court and cabinet-level appointments generate the most press, they are but a small fraction of the Executive and Judicial Branch positions that the President must fill. In the Executive Branch alone, the President must appoint more than 1,000 officials who require Senate confirmation. Appointment to these posts can be a lengthy process and can often leave a position vacant, thus requiring a temporary appointment. To protect its constitutional power in the confirmation process, Congress restricts how long temporary appointees may serve without confirmation.

Despacito

Unlike the lifelong appointments of federal judges, Executive Branch appointees serve at the pleasure of the President. Senate-confirmed positions are typically those that exercise "significant authority" and include assistant secretaries and under secretaries, ambassadors, general counsel, and inspectors general. Each agency is governed by a different statute with different procedures for appointing acting officers; while some roles are filled automatically, others require the President to designate the temporary appointee.

The Federal Vacancies Reform Act of 1998 updated the law to further limit the time an acting official can serve. The law generally limits service in an acting role to no more than 210 days, with an additional 90 days afforded to a change in the presidential administration. In addition, the acting official may serve indefinitely if a nominee for the role has been submitted to the Senate. If a position remains unfilled after the expiration of the time limit, the position should be declared vacant. At that point, the agency head must take responsibility for performing duties assigned to the position, and all non-essential duties must be delegated to other staff.

Sorry Not Sorry

The Partnership for Public Service tracks the status of 635 "key positions" requiring Senate confirmation. Of these, President Trump has nominated nearly 400 as of February 1, and the Senate has confirmed just 246. The cause of the delay is multi-faceted: President Trump has been slow to submit nominations to the Senate, the President has said he is unlikely to fill all positions, and the Senate has been slow to confirm nominees. Many officials serving in an acting capacity hit their 300-day limit on November 16. But the Vacancies Act provides no mechanism for these officials to be removed from office. As a result, many important posts that should have been declared vacant still have an acting official in place, but their involvement in official business could be challenged in court. As the Trump Administration continues to unveil more policy initiatives, and a plethora of acting officials are still serving without a replacement, the Vacancies Act could be used as a tool to challenge the legality of agency actions. During the Obama Administration, a federal appeals court ruled that the Vacancies Act limited an agency’s authority due to the continued service of a long-acting official, and that decision was later used to question the authority of other agency decisions.