June 23, 2020

New law journal article examines the role of acting officials in federal leadership positions

By Paul Hitlin

Temporary leaders – commonly referred to as acting officials – have been used by all recent administrations to fill important positions atop federal agencies. Many questions surround their use and power. How long can acting officials serve? Who is eligible? What happens when the time limit for an acting official runs out? Most of the rules are governed by the Federal Vacancies Reform Act of 1998. However, the law gives presidents a fair amount of flexibility and many details are open to interpretation.  

Little research exists on the subject, but a new scholarly article examines the issue in depth and provides important considerations and recommendations. The piece by Anne Joseph O’Connell of Stanford Law School published in the Columbia Law Review includes data from 1981 through President Trump’s third year in office, and discusses many impacts of temporary leadership.

Among the major findings:

  • President Trump has utilized significantly more acting Cabinet secretaries than prior presidents.
  • Previous presidents relied on temporary leaders, particularly at the start and end of administrations.
  • Without Senate confirmation, temporary officials may lack external buy-in from Congress and the White House.
  • Not all impacts of temporary officials are negative. For example, temporary leaders seeking the permanent job may provide the Senate with an audition.

O’Connell offers recommendations for clarifying the Vacancies Reform Act.

  • Congress should remove ambiguities in the Vacancies Reform Act to “discourage end runs around the normal appointments process.”
  • The law should include agency-specific succession provisions.
  • The law should address presidential firings.
  • The law should specify that for officials to qualify as a first assistant – and thus be eligible to serve as an acting role – they must be named before the vacancy arises.
  • The law should address whether the mandates about qualifications and removal for confirmed officials apply to temporary officials.

O’Connell points out that acting officials have become a fixture of modern presidencies despite receiving little attention, and that Congress has abdicated some of its advise and consent role by accepting increased reliance on interim leadership. To balance concerns over accountability and the need for the government to function, O’Connell argues that it is time for Congress to clarify the rules governing the use of acting officials.