The Basics of the Federal Vacancies Reform Act for New Administrations 

One of the most important roles of a presidential transition team is to identify and fill agency leadership positions, with over 1,300 requiring Senate confirmation. Getting a leadership team in place as quickly as possible is essential for a new administration to govern effectively from day one. 

While it is preferable that positions be filled permanently by Senate-confirmed individuals, presidents often must rely on acting officials while identifying capable nominees and waiting for the Senate to act. This is particularly true at the beginning of a new administration as transition teams and later White House personnel teams process thousands of candidates, work to get nominees through the pre-nomination vetting and ethics process, and assist those nominees through the confirmation process. 

This blog focuses on the core questions regarding the Federal Vacancies Reform Act  and the president’s use of acting officials, particularly at the beginning of a new administration.  

Who may serve as an acting official under the Federal Vacancies Reform Act?  

When a vacancy arises for a Senate-confirmed position, presidents may designate three categories of individuals to serve 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 selects an individual from the two categories below as an alternative. 

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

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

Who commonly serves as acting officials at the beginning of an administration? 

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

• The first assistant to the vacant position. At the start of an administration, this person likely will 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—likely to be career officials. 

How long can acting officials serve? 

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

• For incoming presidents, acting officials may serve 300 days in positions that are vacant or become vacant during the 60-day period beginning on Inauguration Day. 

• The time clock for acting service is indefinitely paused while the Senate considers the 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 may face scrutiny from the Government Accountability Office for placing an acting official in a position that was persistently vacant and had nominees who failed to be confirmed in the previous administration. The GAO states that the rule above should apply to all nominations, regardless of which president made them. By contrast, the Justice Department’s Office of Legal Counsel states that the rule above only applies to the nominations of the current president. 

How does the vacancies law interact with agency specific statutes? 

Some positions have statutory succession provisions. In these instances, administrations have maintained that presidents may either use the vacancies law or the statutory provision to fill the vacancy. Congressional overseers and courts, though, may take a different view.  

Following the agency-specific statue has some possible advantages over following the vacancies law. For example, there is an open legal question about whether the time limits imposed by the law 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 for a position. 

Conclusion 

Recent presidents have had to rely on acting officials across key leadership positions for much of their first years in office. While President-elect Donald Trump continues to announce nominations for top positions in the government, career civil servants and non-Senate confirmed personnel are likely to serve in acting roles as the new administration gets underway.  

For more information about the vacancies law, trends in vacancies and the use of acting officials across administrations, check out the Center for Presidential Transition’s Federal Vacancies Guide.