This is not the system that the Framers envisioned. The Constitution’s “Appointments Clause” requires, as a default rule, that officers of the United States be nominated by the president and confirmed by the Senate. In Federalist 76, Alexander Hamilton predicted that the Senate’s confirmation power “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.” Hamilton warned against the danger of unilateral presidential appointments, arguing that “a man who had himself the sole disposition of offices would be governed much more by his private inclinations and interests than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body.”
The Supreme Court has repeatedly reaffirmed the value and importance of Senate advice and consent. In Edmond v. United States (1997), the Court proclaimed that the Appointments Clause “is more than a matter of ‘etiquette or protocol’; it is among the significant structural safeguards of the constitutional scheme.” In Ryder v. United States (1995), the Court explained that the Senate’s duty to vet nominees “is a bulwark against one branch aggrandizing its power at the expense of another branch.”
Thus, as the Court put it in Freytag v. Commissioner (1991), “the principle of separation of powers is embedded in the Appointments Clause.” If the president evades the Senate, it is ultimately the people who suffer. As the Court added in Freytag, the “structural interests protected by the Appointments Clause are not those of any one branch of Government, but of the entire Republic.”
Unfortunately, presidents of both parties have exploited several loopholes in the Vacancies Act to frequently bypass Senate consent with impunity, filling important offices for years at a time with officials who are making final decisions affecting millions of citizens while lacking the democratic accountability that Senate confirmation provides. Hamilton warned that presidents would be tempted to appoint based on “family connection” or “personal attachment,” and Trump has shown this prediction to be accurate. Senate confirmation ensures that senators must take accountability if they approve such picks and must explain those choices to their own voters.
In his first term, Trump pushed the limits of the Vacancies Act further than any president before him. To give just one example, Professor Anne Joseph O’Connell found that one deputy administrator position (likely representative of most positions at a similar level) was filled by acting officers 15% of the time during the George W. Bush administration, 40% of the time during the Barack Obama administration, and 65% of the time during the Trump administration.
But there are ways for both Congress and the courts to push back against this trend. Congress can and should take several steps to tighten the Vacancies Act, by closing the law’s loopholes, clarifying its limits, and addressing constitutional concerns. This includes eliminating the “delegable duties” loophole, preventing those without Senate confirmation from serving as acting cabinet members, and mandating that acting officers must have relevant prior government experience.
Even if Congress is unwilling to protect its institutional prerogatives by strengthening the Vacancies Act (or if Trump vetoes any attempt at reform), there are also crucial steps that the courts can and should take. Acting cabinet members who serve without Senate confirmation are unconstitutional, and the courts should say so. An important restriction in the Vacancies Act has been misinterpreted to be nearly a dead letter, and the courts should fix that interpretation.
So let’s see how the Vacancies Act can be fireproofed against abuse.
What Congress Can Do
Fix the “Delegable Duties” Loophole
The Vacancies Act places limits on both who can serve and how long they can serve as acting officers. If it did not place such limits, the president would have little incentive to nominate anyone for Senate confirmation. The president could simply use indefinite unconfirmed acting officers to fill every position, avoiding the system that the Framers designed.
In 1998, Congress recognized the importance of the Vacancies Act’s limits and added a new enforcement mechanism to it that mandates that actions taken by invalid acting officers “shall have no force or effect.” The intention was that if a purported acting officer stayed in office past the deadline or lacked the required qualifications, that officer’s actions could be challenged in court and invalidated.
Unfortunately, this enforcement mechanism has not encouraged compliance as effectively as its drafters expected. That is because only actions that qualify as the performance of a “function or duty” of an office can be invalidated, and the Act adopts an exceedingly narrow definition of “function or duty.”
Under the Act, an action only qualifies as a “function or duty” if it is an action required “to be performed by the applicable officer (and only that officer).” Crucially, courts have interpreted the parenthetical term “and only that officer” to mean that if a duty is delegable, it doesn’t qualify as a “function or duty.”
In 2004, the D.C. Circuit held that when a statute sets out an officer’s authorities, “subdelegation to a subordinate federal officer … is presumptively permissible absent affirmative evidence of a contrary congressional intent.” Relying on this presumption, the executive branch has consistently argued in court that nearly every power held by nearly every federal official is subdelegable and thus exempt from the Vacancies Act. And when a power of a vacant office is exempt from the Act, that power can be performed by anyone for any length of time via a delegation of authority, without fear of invalidation.
As Professor Nina Mendelson has explained, the executive branch has exploited this loophole and “effectively created a new class of pseudo-acting officials subject to neither time nor qualifications limits.” The government simply delegates all of the functions and duties of a vacant office to these pseudo-acting officials, without giving them the “acting officer” title. Thus, as Professor O’Connell notes: “In the first year of an Administration, one sees a lot of ‘acting’ titles on agency websites. After the Act’s time limits run out, one sees ‘performing the functions of [a particular vacant office]’ language instead.” And in many cases, these delegatees are the very same people whose time limit had just run out as acting officers or who had failed to win Senate consent. For example, William Perry Pendley was delegated all the powers of the Bureau of Land Management director after his own nomination to the position stalled, allowing him to take several controversial actions.
Closing this loophole is more important than any other potential reform to the Vacancies Act’s time limits or qualification requirements. That is because so long as delegation is available as an alternative to the Vacancies Act, the act’s time limits and eligibility requirements can simply be ignored.
The solution is for Congress to amend the definition of a “function or duty” in the Vacancies Act to eliminate the parenthetical “(and only that officer).” A function or duty should instead be defined as simply any function or duty assigned to an office by statute or regulation.
Limit Acting Department Heads to Senate-Confirmed Officers
If the Constitution requires that officers must be confirmed by the Senate, how can unconfirmed acting officers be constitutional? The answer is that some acting officers are constitutionally permissible, due to an exception to the Constitution’s default rule. The Appointments Clause provides that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Thus, it is permissible for a statute (like the Vacancies Act) to exempt particular “inferior officers” from Senate consent.
The Supreme Court defined “inferior officers” in Edmond as those “officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” As the Court explained, this definition makes sense “in the context of a Clause designed to preserve political accountability.” Limiting inferior officers to only those with direct supervision ensures that senators remain accountable for every officer’s performance. It guarantees that even if the Senate did not vet and confirm a particular inferior officer, it at least vetted and confirmed that officer’s supervisor.
But the Vacancies Act likely exceeds the permissible scope of this “inferior officers” exception. The Vacancies Act allows acting officers to serve without Senate consent not only in inferior offices, but also in Cabinet-level positions. These top-level positions have no superior but the president and are indisputably not inferior. And although acting officers have time limits on their service, they otherwise possess all the authority of any other occupant of their office.
Thus far, lower courts have declined to hold that the service of acting Cabinet members is unconstitutional, relying on the Supreme Court case United States v. Eaton (1898). In that thinly reasoned decision, the Supreme Court held that it is permissible to serve as an acting officer without Senate consent in non-inferior (or “principal”) offices, as long as the service is “for a limited time, and under special and temporary conditions.”
Eaton is in major tension with the Supreme Court’s modern approach to the Appointments Clause set out in Edmond, since the duration of an officer’s service has nothing to do with whether that officer is “directed and supervised.” But Congress need not wait for the Supreme Court to reconcile Eaton with Edmond. Congress can and should end this practice itself by amending the Vacancies Act.
Specifically, Congress should limit eligibility to serve as an acting Cabinet-level officer to those who have already been confirmed by the Senate to another position within that same department. This would ensure that the Senate has vetted and approved everyone serving at the top level of government.
Of course, such acting officers would not have been confirmed to the Cabinet-level position itself. But as the Supreme Court explained in Weiss v. United States (1994), the temporary promotion of Senate-confirmed officers to a higher position is constitutionally permissible. And ensuring that all acting Cabinet members have been confirmed by the Senate to some position would go a long way toward preventing the elevation of “unfit characters” that the Appointments Clause was designed to guard against. Or at the very least, it would ensure that the voters can blame those senators who confirmed the officers to their original positions, if in fact they were poor choices to serve in government at all.
This reform would prevent presidents from using the Vacancies Act to appoint unconfirmed, unaccountable political loyalists to lead federal departments. To give a concrete example, it would mean that presidents could no longer do what Trump did in 2018, when he elevated Matthew Whitaker to be acting attorney general. That appointment was widely criticized precisely because Whitaker had not been serving in a Senate-confirmed position at the time, which made it an unusual move when many Senate-confirmed officials within the Department of Justice were available to serve. Whitaker was likely picked for his loyalty to Trump rather than his fitness for the office, demonstrating the danger of allowing non-Senate confirmed officials to serve at the highest levels of government.
Close the “Post Hoc First Assistant” Loophole
The Vacancies Act purposely limits the president’s choice of who may serve as an acting officer to among three categories of government officials. This was intended to limit acting service to those more likely to be qualified as caretakers. It was also intended to incentivize the president to nominate someone for the permanent position, since the president would not be able to pick a preferred acting from outside the government.
However, presidents of both parties have exploited an ambiguity in the Act to get around this restriction. One of the categories available from which to choose acting officers is the “first assistant” to an office. This category was meant to include those who have served as the deputy to a position and thus would naturally be prepared to temporarily act in that position.
The problem is that the Vacancies Act does not explicitly restrict eligibility to those who were serving as the first assistant when the vacancy arose. As a result, presidents have appointed people with no government experience to be the first assistant to an already-vacant office and then instantaneously elevated them to be acting officers. This loophole effectively allows presidents to choose whomever they wish to serve as acting officers, even from outside the government. Trump went so far as to create a first assistant position just to use this maneuver to install Ken Cuccinelli as acting head of Citizenship and Immigration Services. Although a court struck down this appointment as a bridge too far, Congress should close this loophole entirely by clarifying that only those serving as first assistants when a vacancy arose are eligible under this category.
What the Courts Can Do
Overrule or Limit United States v. Eaton
As noted above, the Supreme Court held in Eaton that acting officers may serve in non-inferior (or “principal”) officer positions “for a limited time, and under special and temporary conditions.” Yet neither the Supreme Court nor lower courts have ever placed an upper limit on just how long this “limited time” acting service may last before it becomes unconstitutional, consistently declining to declare a limit. For example, when Matthew Whitaker’s acting service was challenged, courts upheld his tenure as constitutional.
Lower courts cannot overrule Eaton, but they can limit its scope by enforcing a hard time limit on acting service in principal positions and invalidating actions taken by those who remain acting officers beyond that limit. Scholars have proposed several plausible cutoffs, including just under the length of a recess appointment, 120 days plus the pendency of a single nomination, ten days or slightly more, and six months.
Sixth Circuit Judge Amul Thapar has argued in a partial dissent that the two most plausible answers are either six months “with maybe a little more ‘under special and temporary conditions’” or the amount of time left “until the current Senate expires.” It is less important which cutoff lower courts settle on, and more important that they settle on some cutoff to limit the president’s ability to avoid Senate confirmation for those at the highest level of government.
And eventually, the Supreme Court itself should reconsider Eaton, given how out of step that case’s reasoning is when compared to the Court’s modern approach as set out in Edmond. The Supreme Court recently reaffirmed Edmond’s approach in the case United States v. Arthrex (2021), and the Court has enforced the Appointments Clause strictly in other recent cases such as Lucia v. SEC (2018). I am optimistic that the Court would once again rein in the executive branch if presented with the opportunity to consider Eaton anew.
Enforce the “Exclusivity Provision” of the Vacancies Act
The Vacancies Act mandates that no other statute may be used by the executive branch to
temporarily fill a vacancy in an office normally requiring Senate consent, unless that statute includes an express statement making clear that it can indeed be used to designate acting officers. The Act explicitly states that it is the “exclusive means for temporarily authorizing an acting official” absent such an explicit statement. And in case that wasn’t clear enough, the Act emphasizes that any statute “providing general authority … to delegate duties” does not qualify as an authorization to appoint acting officers. In essence, it forbids using delegation statutes as if they were the equivalent of vacancies acts.
Yet as noted above, agencies now routinely subdelegate all the duties of a vacant office to a single person, creating de facto acting officers while ignoring the limitations of the Vacancies Act. Such delegations violate the plain text of the Act’s Exclusivity Provision. But courts have thus far been unwilling to interpret this provision as enforceable. Instead, courts have held that the separate provision (discussed earlier) invalidating the performance of a “function or duty” of a vacant office is the only means by which the Act may be enforced.
This reading is wrong. The text of the Exclusivity Provision is clear, and Congress would not have put significant effort into strengthening its language in 1998 if it had not expected this provision to be enforceable. Courts should hold that subdelegating all the duties of a vacant office to a single person violates the Exclusivity Provision, and courts should invalidate actions taken by such subdelegatees. In particular, if a subdelegatee issues a rule or adjudicates an enforcement action, people harmed by such decisions should challenge the subdelegatee’s authority in federal court. Although the Supreme Court recently turned away one promising challenge, more such cases are likely to arise.
The Appointments Clause and the Vacancies Act may seem like abstruse and formalistic topics. But as we’ve seen with many of President-elect Trump’s early nominations, Senate consent is a crucial check on a president’s potentially impulsive, malicious, or cronyistic appointment decisions. Every weakness in the Vacancies Act (as currently applied) gives the president another opportunity to evade Senate consent. Both Congress and the courts should do everything they can to eliminate these weaknesses and restore the Senate to its proper role.
