What the New Vacancies Act Ruling Means for the Trump Administration

March 28, 2019

The 6-2 decision in National Labor Relations Board v. SW General, Inc. overturned the interpretation of Federal Vacancies Reform Act of 1998 that has been used more than 100 times by past administrations of both parties.

The decision could adversely affect President Trump, who has been slow to nominate individuals for key positions below Cabinet secretaries, leaving those jobs in the hands of career executives or other temporary appointees. The Supreme Court’s decision is yet another reminder of the importance of the timely consideration of nominations – a shared responsibility of the president and the Senate.

The Federal Vacancies Reform Act provides that three classes of government officials who may serve in vacant positions without the advice and consent of the Senate. Those who can fill in on a temporary basis are the first assistant to the official, a senior official of the agency, or another Senate-confirmed official.

The law provides a strong incentive for a president to submit nominations by providing that any action taken by an official not properly serving under the Vacancies Act will have “no force or effect.”

The court’s decision is a stark reminder to agencies to pay close attention to the details of the Vacancies Act, particularly the time limits for officials serving in an acting capacity.

In general, an acting official may serve for 210 days, although the time limit is tolled when a nomination is pending for the position before the Senate (or during the process for a second nominee, if the first nomination fails). Also, recognizing that new presidents face vacancies in almost all politically appointed positions at the outset of an administration, the Vacancies Act provides an additional 90 days that an acting official may serve.

It is also important to remember that some positions are subject to statutes other than the Vacancies Act, and there are numerous exceptions within the Vacancies Act itself. Agencies leaders need to be aware of these distinctions and to pay close attention to their particular circumstances.