This morning the Senate Homeland Security and Governmental Affairs Committee held a hearing titled “Examining the Senate Confirmation Process and Federal Vacancies.” I submitted a written statement, which is based on my recent Vacancies Act Briefing Paper. In the statement, I explain how presidents of both parties have increasingly exploited a loophole in the Vacancies Act to turn temporary acting officers into de facto permanent officers.
The Vacancies Act places limits on both who can serve as an acting officer and how long they can serve. These limits are the core limitations that the Vacancies Act places on the executive branch. Without such limits, the executive branch would have little incentive to nominate people for Senate confirmation rather than using the Vacancies Act.
In 1998, in an attempt to give real teeth to the Vacancies Act’s limitations, Congress created an enforcement mechanism that invalidates an illegal acting officer’s work. The intention was that if a purported acting officer stayed in office past the Vacancies Act’s deadline or lacked the required qualifications, that officer’s actions could be challenged in court and invalidated.
But this enforcement mechanism has not incentivized compliance as intended. That is because only actions that qualify as the performance of a “function or duty” of an office can be invalidated, and the Vacancies Act adopts an exceedingly narrow definition of “function or duty.” Essentially, only exclusive and nondelegable duties have been held to fall under the act’s definition of a “function or duty.” And since courts have held that all federal duties are presumptively subdelegable in the absence of specific evidence to the contrary, all federal duties are also presumptively exempt from the Vacancies Act’s limitations.
In the hearing this morning, Stanford Law School Professor Anne Joseph O’Connell described the reality for many agencies today when the time limits of the Vacancies Act run out: “You have delegations of authority downward for the nonexclusive functions, and basically most of the functions are nonexclusive in federal agencies. … Under these delegations there are no time limits. And so you can have those positions carried out for years, for entire presidential terms, without ever putting forward a nominee.” Although Prof. O’Connell and I may disagree on the details for the best statutory solution, we agree that this is not an ideal system. In my view, as explained in my statement, Congress can and should put a stop to this maneuver by eliminating the Vacancies Act’s exemption for delegable duties.
In the hearing this morning, there was unanimity among all three witnesses that federal law currently mandates Senate confirmation for too many positions. I agree: the Constitution leaves it up to Congress’s policy judgment to determine whether each “inferior officer” in the federal government should be appointed with or without Senate consent. Congress should take that responsibility seriously, weighing the relative values of accountability and efficiency for each position. In my view, the determinative factor should be the power an official has over the day‐to‐day lives of Americans. Officials with final authority to issue binding rules and policies are the ones who should be vetted by the Senate. Requiring Senate confirmation for other officials without such power may actually distract the Senate from those positions where vetting is most necessary.
I’m hopeful that in the wake of this hearing, Congress will show a new momentum toward fixing the federal appointments process. Reducing the number of positions requiring Senate consent and reforming the Vacancies Act are complementary parts of a complete solution. The Senate should focus on those positions where scrutiny is most important, and the executive branch should no longer be able to evade Senate scrutiny for officials performing the duties of those key positions.
