Federal Vacancies Guide

One of the most important roles of a presidential transition team is to identify and fill agency leadership positions, with over 1,200 requiring Senate confirmation. Getting a leadership team in place as quickly as possible is essential for a new or second-term administration to govern effectively from day one.

However, the Center for Presidential Transition’s® data shows that each new presidential administration faces longer confirmation delays and gets fewer nominees confirmed than its predecessor, resulting in prolonged vacancies. Federal agencies need consistent leaders in place to best carry out an administration’s agenda and provide guidance and strategic direction to the agency’s workforce. Having leadership positions regularly filled also improves the ability of Congress to conduct oversight.

While it is preferable that positions be filled permanently by Senate-confirmed individuals, presidents often must rely on acting officials and officials performing the duties of vacant Senate-confirmed positions while identifying capable nominees and waiting for the Senate to act upon them. Therefore, planning for vacancies and anticipating who will serve in acting roles is a key part of transition planning and ongoing management of federal agencies.

This resource aims to help both transition planning teams and federal leaders address the challenges of filling key leadership positions under the current appointments process. It outlines the avenues presidents may use to fill vacant positions under the Federal Vacancies Reform Act1 and other statutory and regulatory provisions. It also highlights the options presidents can consider within the time limits of the Vacancies Act, beyond the time limits of the Vacancies Act and under other legal provisions.

In the appendix, our data demonstrates that major agencies2 must increasingly rely on acting officials to fill leadership positions and understand the rules and risks of doing so. Consider the following trends from the past four administrations:

In major agencies, less than 50% of positions that require Senate confirmation get filled within the president’s first year. President Joe Biden filled 49% of such positions in the first year of his administration. President Donald Trump had even less, with only 39% of such positions filled by the end of his first year. Furthermore, through the third year of his administration, it took Biden nearly three times as long as President George H.W. Bush to fill Senate-confirmed positions in major agencies.

In modern two-term administrations, most Senate-confirmed officials at major agencies leave their positions during the transition between a first and second term. The largest amount of turnover occurs in year five, with 33% of Senate-confirmed positions becoming vacant. An additional 18% of positions become vacant in year six.

Filling positions with appointees not subject to Senate confirmation, such as noncareer members of the Senior Executive Service and Schedule C appointees, enables an administration to rely on acting officials more frequently when desired. For example, 34% of the acting officials who served within major agencies during the first year of the Biden administration were politically appointed. For President Trump, that number was 24%. This difference underscores the Biden administration’s effective use of non-Senate-confirmed appointees to fill more than 1,000 critical leadership positions on the first day of his administration.

Making the appointments process work better

Our nation’s founders envisioned a system by which the president and the Senate share responsibility for ensuring that capable and qualified appointees serve the public.

However, the system is badly broken. The process to search for, select, nominate and confirm appointees takes longer and fewer nominees get confirmed with each successive president. As a result, many of the most essential leadership positions across the federal government sit vacant for too long.

The Senate confirmation process is in desperate need of reform. The top priority to address the current crisis should be to reduce the number of Senate-confirmed positions, last accomplished in 2012. The unnecessarily high number of these positions creates a backlog for both presidents and the Senate to process.

As a result, presidents increasingly rely on officials to fill vacant positions in an interim capacity. These acting officials are often experienced and highly regarded professionals who perform their job responsibilities with capability and dedication. But their attention may be divided because they perform multiple roles at once, and they may also lack the perceived authority that comes with being confirmed by the Senate. More significantly, the use of temporary officials can invite legal challenges to government action.

A sense of impermanent leadership can also hurt employee morale and strategic planning; even the most seasoned acting official might avoid embarking on a long-term strategy if they are unsure whether they have weeks or months to implement it.

The broad use of acting officials also limits the Senate’s ability to exercise its advice-and-consent role and conduct oversight. The law that governs the president’s authority to fill vacant positions, the Federal Vacancies Reform Act of 1998, or the Vacancies Act, places generous time limits on acting officials if the president has nominated someone to fill an empty Senate-confirmed position. However, the sheer number of these positions plus the dysfunction of the nomination process make it impossible for presidents to put forth those nominations on a timely basis.

Furthermore, the current law has ambiguities and loopholes that need to be resolved. Reform should seek to maintain the original intent and spirit of the Vacancies Act and preserve the Senate’s oversight, while enabling presidents to effectively fill vacancies.

Operating in the current system

Federal leaders must continue to govern under the current system and the laws that structure it. Our recommendations aim to ensure that presidents get their personnel in place and that persistent vacancies do not stymy agency work. We outline the options available to federal leaders while continuing to seek improvements to the system. We also suggest several circumstances where a career official would possess the skills and institutional knowledge to serve capably in an acting capacity.

The Vacancies Act and its relationship to agency-specific statutes create many nuances that may seem daunting to new appointees who are not familiar with the law. Federal leaders should consult with the Presidential Personnel Office, agency general counsels, chief human capital officers and offices of legislative affairs before making any decisions about using an acting official or other types of interim leaders.

The Vacancies Act places time constraints on presidents to appoint acting officials to Senate-confirmed positions. Generally, those constraints are as follows:

• For most of a president’s term, non-Senate-confirmed acting officials may serve in a vacant Senate-confirmed position for 210 days if the president has not nominated someone for the position.
• For first-term presidents, acting officials may serve 300 days in positions that are vacant during the 60-day period beginning on Inauguration Day.
• The time clock for acting service is indefinitely paused while the Senate considers a first nominee to the vacant position. If the nominee is returned, rejected or withdrawn, a new 210-day time clock begins on the return date. If the president makes a second nomination, the time clock is again paused while the Senate considers the second nominee. If the second nominee is returned, rejected or withdrawn, a final 210-day time clock begins on the return date.
  • Presidents should be aware that they may face scrutiny from the Government Accountability Office for placing an acting official in a position that was persistently vacant and had nominees that failed to be confirmed in the previous administration. The Government Accountability Office states that the rule above should apply to all nominations, regardless of which president made them. The Office of Legal Counsel states that the rule above only applies to the nominations of the current president.
  • See the below section, “Outside of the time period allowed by the Vacancies Act,” for options on selecting interim leadership beyond the time period allowed by the Vacancies Act.

When a vacancy arises in a Senate-confirmed position, presidents may designate three categories of individuals as an acting official:

• By default, the “first assistant” to the vacant position (generally interpreted to mean the top deputy to the position) will serve as the acting official unless the president (and only the president) selects an individual from the two categories below as an alternative

• • A person who serves in an office requiring Senate confirmation.

• • An official at the GS-15 level or above who has been with the agency at least 90 days during the year preceding the vacancy.

Presidents also face additional legal constraints when seeking to fill positions under the Vacancies Act. For example, some positions have statutory succession provisions. In these instances, administrations have maintained that presidents may either use the Vacancies Act or the statutory provision to fill the vacancy.3

For example, the Justice Department’s Office of Legal Counsel found that it was permissible for Trump to have selected Office of Management and Budget Director Mick Mulvaney, previously a Senate-confirmed official, to be the acting director of the Consumer Financial Protection Bureau—even though the agency-specific statue identified the deputy director as the bureau’s default acting official.

Following the agency-specific statue has some possible advantages over following Vacancies Act guidelines. For example, there is an open legal question about whether the time limits imposed by the Vacancies Act still apply when the agency-specific statute is followed, therefore making it unclear how long an acting official can serve. In fact, it is possible to interpret agency-specific statutes as allowing the acting official to serve indefinitely. Also, agency-specific statutes do not limit the acting official’s ability to also be the nominee to a position.

Presidents can use different strategies for filling positions with acting officials depending on when the vacancy occurs.

Beginning of an administration

At the beginning of their term, presidents can choose to rely on the following categories of officials to serve in an acting capacity:

• The first assistant to the position. At the start of an administration, this person will likely be a career employee. But in some situations, an administration can bring in a political appointee as a first assistant and then designate that person as the acting official.
• Holdover Senate-confirmed officials from the previous administration.
• High-level officials who have been with the agency at least 90 days during the year preceding the vacancy—again, likely to be career officials.

As this list suggests, presidents, particularly at the beginning of their administrations, may rely on capable career officials to serve on an interim basis. Many of these high-level career officials have served in leadership roles across administrations.

One of many such examples is David Huizenga, a career civil servant in the Department of Energy selected by Biden as acting secretary of Energy at the beginning of his administration. Trump previously selected Huizenga as acting deputy administrator for defense nuclear nonproliferation in the National Nuclear Security Administration and, before that, he had served for more than 20 years in the DOE, with stints in several high-level positions. For his work at the NNSA, Huizenga was a finalist for the Samuel J. Heyman Service to America Medal by the Partnership for Public Service. 4

Presidents may also appoint individuals to non-Senate-confirmed principal deputy or first assistant positions on day one of their administration and simultaneously place those officials in an acting role by default. This strategy skirts the requirement that officials serve in the agency for at least 90 days in the year preceding the vacancy to qualify for acting service.

Biden relied heavily on this strategy at the beginning of his term. For example, he appointed Stephanie Pollack to be the deputy administrator of the Federal Highway Administration. Pollack, who had served as the Massachusetts secretary of Transportation for the previous six years, simultaneously became the acting administrator of the FHWA. This maneuver enabled Biden to place a qualified appointee in charge of the FHWA early in his presidency. He did not have a Senate-confirmed administrator in this position until the end of his second year in office.

We recommend that incoming transition teams do the following:

	Review agency succession plans for each noncareer position provided by the incumbent administration, statutorily required by Sept. 15 of an election year.5 These plans help transition teams identify senior career officials to either serve in acting capacities by default or be selected to serve on an interim basis while the new administration gets its people in place.
	Identify the existing non-Senate-confirmed positions that are first assistants to Senate-confirmed roles that could be filled immediately (e.g., positions not filled by career Senior Executive Service members, who are protected at the beginning of an administration from reassignment).6
	Create a separate vetting group within the personnel team of the transition to prioritize hiring those non-Senate-confirmed appointees.

The Biden-Harris Transition Team used this strategy, creating two different personnel groups—one for non-confirmed appointments and one for Senate-confirmed positions—to appoint a record 1,100 appointees on Inauguration Day. Some of these appointees were placed in senior roles as first assistants. Having non-confirmed first assistants in place was a highly effective strategy that enabled political appointees to step into senior acting roles from day one of the Biden administration.

Middle of an administration

Presidents in the middle of their terms have a greater range of options to fill vacancies.

To begin with, presidents in this situation have a greater pool of their own Senate-confirmed and non-Senate-confirmed appointees who are eligible to serve as acting officials. Senate-confirmed officials are often relied on to serve as acting officials when the most senior Senate-confirmed positions become vacant. For example, Trump had Patrick Shanahan, confirmed as deputy secretary of Defense, and Mark Esper, confirmed as secretary of the Army, serve in two separate stints as the acting secretary of Defense after the resignation of James Mattis.

Presidents can also select senior career officials or senior non-Senate-confirmed appointees who have been with the agency for at least 90 days in the year preceding the vacancy to serve as acting officials. For example, Trump selected Norman Sharpless to serve as the acting commissioner of the Food and Drug Administration after the permanent commissioner, Scott Gottlieb, resigned. Sharpless had served in the Department of Health and Human Services for over a year as the director of the National Cancer Institute, a non-Senate-confirmed appointed role.

In some cases, presidents may also consider selecting an acting official to also serve as their nominee to a vacant position. Generally, the Supreme Court has said that the Vacancies Act does not allow the nominee to concurrently serve as the acting official. However, the act allows individuals to serve in an acting role and also be nominated for the position if they had been the first assistant to the position for at least 90 days during the year preceding the vacancy or if they are a Senate-confirmed first assistant to the position.

Biden took advantage of this rule when he nominated Shalanda Young as director of the Office of Management and Budget while she served as the agency’s acting director. Since Young was the “first assistant” to the director and met both the service length and Senate-confirmation requirements, she continued as the acting director while she was nominated.

Presidents can also change agency succession orders or the determination of “first assistants” to alter who becomes an acting official by default—unless the order of succession is laid out in statute.

When there is not a statutory provision for succession planning for a Senate-confirmed position, agencies generally specify one via regulation. However, presidents can alter them through executive or secretarial order.

Along these lines, presidents may also create new appointed noncareer SES or Schedule C positions and designate them as the “first assistant” to a Senate-confirmed position. This strategy enables presidents to select an official in the newly designated or created “first assistant” position in an acting capacity, regardless of whether the individual has been with the agency at least 90 days prior to the vacancy.

Presidents have been using this strategy given their preference to place political leaders in priority areas. But the Partnership for Public Service and other good government organizations recommend that presidents carefully consider whether a career official or political appointee is the best choice for the first assistant role. Not only are career civil servants likely to have relevant experience to serve capably, but the absence of a political appointee acting in the role encourages the administration to make a formal nomination to fill the position permanently.

The creation of a new first assistant position—especially if a nominee is not forthcoming—risks irritating Congress because it may give the appearance that the White House and the agency are intentionally skirting the Senate’s advice-and-consent role. The nomination process, while long and uncertain, is the only way to break the acting cycle and get permanent political leaders into leadership roles.

However, there may be limitations on the president or agency head’s ability to change succession orders or create new “first assistant positions” if the vacancy has already occurred.

For example, there were legal challenges to the status of the acting secretary of Homeland Security in 2020 because agency leadership made amendments to the succession order after the Senate-confirmed secretary resigned. The Government Accountability Office found that the Department of Homeland Security could not legally change the order of succession for the secretary position because the individual who assumed the role as acting secretary did not do so according to the existing succession order and, therefore, could not approve the changes.7

We recommend that federal leaders managing personnel do the following:

	Identify whether Senate-confirmed positions have an existing succession order and designated first assistant position. For key positions without a designated first assistant position, create or designate a first assistant position prior to vacancies occurring.
	Work with departing Senate-confirmed officials to identify existing appointed or career personnel who can step into an acting role.

Outside of the time period allowed by the Vacancies Act

According to the Vacancies Act, when the time limits to select an acting official end, all the duties and functions of vacant positions specifically assigned by statue or regulation may only be performed by the head of the agency.

Many observers note, however, that once these time limits end, an acting official’s title may switch from “acting” to something along the lines of “performing the duties of.” This switch is possible because, in practice, there are very few statutorily limited duties and functions for most Senate-confirmed positions. Therefore, individuals “performing the duties” of a vacant position often have the same legal authority of an acting official without the acting title.

Due to the difficult and often delayed Senate confirmation process, it has become more common to see officials “performing the duties of” vacant positions. In effect, this means that vacant positions can stay vacant well beyond the time limits set by the Vacancies Act.

For example, Patrick J. Lechleitner, the deputy director of Immigration and Customs Enforcement, started performing the duties of the director position in June 2023. Lechleitner has continued to perform the duties of the vacant position indefinitely, despite Biden withdrawing his last nominee to the position in July 2022.

This strategy can appear to be a clear circumvention of the time limits imposed by the Vacancies Act—an issue untested in federal court. So while using these types of titles is potentially legal, they nevertheless raise friction with Congress and confuse the public.

Presidents can mitigate these difficulties if they put forth nominations for vacant positions. As described above, doing so would pause the time limit on an official serving in an acting capacity.

We recommend that administrations carefully consider whether a career official or political appointee would best “perform the duties of” vacant positions. We also recommend that presidential personnel teams do the following:

	Track the acting time limits allowed under the Vacancies Act.
	Ensure that individuals previously serving as acting officials cease to use the “acting” title when the time limits run out.
	Examine any nondelegable duties of vacant Senate-confirmed positions that must be performed by the head of the agency.

Additional considerations for the selection of interim officials

The types of individuals called upon to be acting officials varies depending on the type of vacant position.

As noted above, the most senior leadership positions, such as Cabinet secretaries, are typically filled by political appointees when vacant (except at the beginning of an administration when an incoming president works to get senior political appointees in place). These individuals are perceived as having greater backing from the president—and by the Senate when they are a Senate-confirmed official.

However, positions such as assistant secretaries, directors, commissioners and administrators may be more easily filled by career officials serving in deputy roles. Using career officials helps the president fill positions with capable and experienced individuals and limit the search costs for the Presidential Personnel Office. For example, Biden has relied on Troy A. Miller to perform the duties of the commissioner for U.S. Customs and Border Protection for much of the current term. Miller previously served as the deputy commissioner, the agency’s senior career official. Before that, he served in a series of career leadership roles.

Additionally, it may be better for presidents to rely on career officials in vacant mission-support positions. It is particularly important to fill these positions with individuals with institutional knowledge and the necessary skills and expertise. Senior career officials offer stability while the president finds a capable nominee and waits for them to successfully navigate the Senate confirmation process.

For example, Denise Carter has served as the acting assistant secretary of Finance and Operations and the chief financial officer at the Department of Education under Biden. She has also been the Department of Education’s career principal deputy assistant secretary of finance and operations since 2013.

The data below focuses on the Senate-confirmed positions within major agencies that are not ambassadors, U.S. attorneys, U.S. marshals, or board or commission roles.8

In short, the appointee data from modern administrations reveals three main staffing trends across these agencies:

The Senate confirmation process moves slowly.

• By the end of their first years in office, Trump had filled 39% of his Senate-confirmed positions, while Biden had filled 49% of his Senate-confirmed positions.

 
Agencies experience high turnover between a first and second term.

• Modern two-term presidents have seen 67% of the positions in major agencies experience a departure between years three and six.

 
Placing political appointees in a “first assistant” position early enables them to step into acting roles more quickly.

• Because his transition team prioritized placing political appointees in positions just below Senate-confirmed roles, Biden was able to rely on political acting officials more often than Trump, who relied more heavily on career officials in acting positions during the first year of his administration.

Difficulties filling positions at the beginning of a new administration9

The reality facing modern presidents is that most of their Senate-confirmed appointee team will not be confirmed within their first year in office. Even when presidents prioritize making nominations, the delays in the confirmation process make it difficult to get much more than a handful of positions filled in each Cabinet department.

The figures below suggest that presidents need to fill most Senate-confirmed positions with acting officials for much of the first year in office and beyond. Consider the following:

• Within the first three months of their administrations, Trump only filled 6% of Senate-confirmed positions, while Biden only filled 9% of such positions.
• Within the first six months of their administrations, Trump had only filled 3% more positions and Biden had filled 11% more positions.

Importantly, Trump nominated someone for 65% of the major agency positions that were vacant on Inauguration Day within his first year, while Biden nominated someone for 80% of such positions within his first year.

However, by the end of their first years in office, Trump had only filled 39% of these positions, while Biden had only filled 49% of these positions. These figures suggest that vacancies within major agencies over the past two administrations were largely due to Senate confirmation delays, rather than presidential delays in making nominations.

Difficulties keeping positions filled between a first and second term10

Vacancy problems extend well beyond the president’s first year in office. Presidents face high levels of turnover between their first and second terms, making it difficult to refill many Senate-confirmed positions.

The most recent two-term presidents—George W. Bush and Barack Obama—faced high political appointee turnover during this time, resulting in many vacant positions. For these administrations:

• An average of 13% of Senate-confirmed appointees departed the year before the election.
• An average of 3% of Senate-confirmed appointees departed the year of the election.
• An average of 33% of Senate-confirmed appointees departed in the first year of the second term.
• An average of 18% of Senate-confirmed appointees departed in the second year of the second term.

Our last two-term presidents have thus seen 67% of the Senate-confirmed positions across major agencies experience a departure between year three and year six of their administrations.11 This significant level of turnover means that many Senate-confirmed positions sit vacant for extended periods as presidents find capable nominees and as those nominees move through the confirmation process.

These figures make clear that any administration planning for a second term must prepare for significant appointee turnover. Personnel offices should work with Cabinet leaders to learn about political appointees’ career goals and identify potential roles for top performers during a second term. Personnel offices may also want to refresh their vetting tactics for new officials and help prepare plans to use acting officials to fill vacant positions.

How Presidents Biden and Trump have used acting officials12

Given these turnover trends, it is useful to consider how recent presidents have filled vacant positions during the beginning of an administration and in the early phases of a second term.

In the early days of his administration, Biden used a series of non-Senate-confirmed presidential appointments to place individuals in deputy positions beneath many vacant Senate-confirmed positions. Once in place, some of these individuals immediately assumed Senate-confirmed positions in an acting capacity. In total, 34% of acting officials who served in major agencies during the first year of the Biden administration were politically appointed.

Trump put more career officials in acting roles. In total, only 24% of acting officials who served in major agencies during the first year of the Trump administration were politically appointed.

Of course, later in an administration, presidents can fill vacancies using a bigger batch of Senate-confirmed officials—or non-Senate confirmed appointees who have been with the agency at least 90 days. As time passes, the president’s appointees tend to become more familiar with agency career leaders. These leaders may also be relied upon as acting officials.

As described above, the timelines specified in the Vacancies Act demand different strategies at the beginning, middle and end of an administration.

While this guide seeks to help presidents place acting officials in vacant positions quickly and responsibly, it also reveals ambiguities in the Vacancies Act and ongoing areas of uncertainty. These uncertainties demand continued Congressional attention and action so that the placement of acting officials involves less interpretation and effort. Oversight bodies have previously made determinations on some of these issues, and those determinations provide further guidance on how to avoid challenges to agency actions.

In the meantime, agency leaders should continue to work with the Office of Presidential Personnel, White House liaisons, general counsels, human capital offices and offices of legislative affairs to make tailored decisions about how to fill each vacancy quickly and appropriately.

The agency-specific data in the attached appendix summarizes how recent presidents of both parties have approached the problem of filling vacancies. As the examples above suggest, frequent confirmation delays and high rates of appointee turnover leave no doubt that a new president’s teams and agency leaders must plan in advance to identify and place individuals who can act in vacant roles and perform their responsibilities well.

This appendix highlights the urgent need for presidents and agency leaders to plan for vacancies and the use of acting officials throughout an administration—particularly at the beginning of a first term and during the transition to a second. It also shows how the last two administrations used career officials versus politically appointed officials in acting roles during year one in office.

The appendix contains data on all Chief Financial Officer Act agencies13, both as a group and individually. Within each section, four visualizations highlight the following:

1. Trends in nominations and confirmations within the first year of the Trump and Biden administrations
2. Trends in yearly turnover across the last four presidential administrations. The time period covered in the first term is from the beginning of the administration through April 1 of the fourth year
3. The percentage of acting officials who served in the first year of the Trump administration and a breakdown of whether they were career civil servants or political appointees
4. The percentage of acting officials who served in the first year of the Biden administration and a breakdown of whether they were career civil servants or political appointees