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.  

By Jaqlyn Alderete

The Senate now takes 115 days on average to confirm presidential appointees, twice as long as during the Reagan administration.[1] Given the length of time it can take to get nominees confirmed, a new administration or second-term administration must prepare to face the reality of having vacant positions and identify their options for filling those roles.

In the beginning of a new administration, it is common for most presidentially appointed Senate-confirmed positions to be filled by acting officials while the nomination and confirmation process plays out. Second-term administrations typically experience significant turnover in critical leadership roles following re-election. According to the Center for Presidential Transition’s report on turnover during the previous three administrations, 43% of key leadership positions were left vacant within six months of the start of a president’s second term, either by personal choice or because the president wanted a change and fresh ideas. Given the high turnover rate, second-term administrations must plan for how they will fill these roles while waiting for the Senate confirmation process to play out.

The Federal Vacancies Reform Act outlines limitations to who can serve in acting roles and for how long. Under the Vacancies Act, there are three types of officials who may carry out the duties of the vacant position in an acting capacity without Senate confirmation.

1. The “first assistant,” interpreted to be the top deputy position, becomes the acting officer unless the president designates another individual from the other two eligible classes of officials. The Vacancies Act does not specifically define “first assistant.”
2. The president may designate an individual who serves in another presidentially appointed, Senate-confirmed position elsewhere in the federal government as the acting official.
3. The president may designate a senior employee of the same agency as the acting official if that person has served in the agency for at least 90 days during the year preceding the vacancy and is paid at a rate equivalent to at least a GS-15.

The Vacancies Act limits an individual serving in an acting role for 210 days. However, this period is lengthened to 300 days if a vacancy exists on the new president’s inauguration day or occurs within 60 days after the inauguration.

While these all are helpful ways to manage vacancies, they are temporary placeholders for long-standing leadership positions, as acting officials lack the authority that comes with a presidential appointment and Senate confirmation process. It is imperative that administrations develop efficient procedures for sending nominees to the Hill and that they prepare to manage vacancies within the limits of the Vacancies Act.

[1] Center for Presidential Transition, “Senate Confirmations Process Slows to a Crawl,” Jan. 2020. Available at https://presidentialtransition.org/publications/senate-confirmation-process-slows-to-a-crawl/