The Appointments Clause of the Constitution mandates that high-ranking federal officials cannot serve without the advice and consent of the Senate. The Clause was added to the Constitution by the Founders to ensure that the highest offices in the land would be filled those who are competent to serve and owe their loyalty to the American people and the Constitution, not only to the President. The Federal Vacancies Reform Act (FVRA) of 1998 was enacted to provide a process for filling vacancies on a temporary basis. Congress enacted the FVRA under the assumption that the President and Congress would be substantially aligned in wanting to fill vacant executive branch positions that require Senate confirmation, while understanding that the natural process would take time. The FVRA, then, specifies who is eligible to serve in an acting capacity for a limited period of time before a new official is confirmed.
Because presidents have sought ways to circumvent or have outright ignored the FVRA and the Appointments Clause, a core check that Congress has on executive agencies has been severely weakened. For Congress to fulfill its role as a co-equal branch, it must reassert its authority over the appointments process. To do this, Congress must:
- Limit the powers of Acting officials over personnel;
- Limit the amount of time that a position can be filled under the FVRA;
- Clarify that the FVRA is not available when the President fires a Senate-confirmed official;
- Require a public statement by the President to fill a position under the FVRA; and
- Reconcile agency-specific succession statutes to address current ambiguities.
The FVRA establishes the procedure for the President to temporarily fill certain vacancies within the executive branch while the President pursues a permanent appointment through the advice-and-consent process with the Senate. But the FVRA also includes limits on how long an acting official may serve in such a position. Thus, the FVRA was designed to bridge reasonable gaps in the appointment process, not to supplant the Senate confirmation process entirely.
Presidents of both parties have evaded the letter and spirit of the FVRA, but there have been unprecedented abuses under President Trump’s administration.
We are working to reassert the FVRA in the following cases that have arisen during this period, and have also proposed reforms to strengthen Congress’s capacity to fulfill its Constitutional role.Related Cases
Our Reform Work
Bypassing the Senate with acting positions. During the Obama administration, the Senate and President were unable to agree on nominees to fill a variety of vacancies from the FEC, NLRB, DOJ, and Treasury. The Senate wanted to leave some positions vacant. In a number of cases, the President tried to bypass Congress to fill open slots, including at NLRB, DOJ, and Treasury, in addition to Inspector General roles across the government. Prof. Anne O’Connell has noted that the Obama administration shifted to using acting positions in its second term, even after Congress passed the 2012 Presidential Appointment Streamlining Act, which explicitly relinquished Congressional authority over certain positions.
President Trump has bypassed Congress to fill vacancies across a much larger portion of the federal government (albeit for sometimes different reasons). President Trump has used the FVRA to fill positions ranging from U.S. Attorneys to independent commissions and agencies like the SEC and CFPB and the Census Bureau to more senior roles such as the Associate Attorney General. In some cases, acting officials served out the time allowed under the FVRA, only to have another acting official take their place. As of August 2020, 136 Senate-confirmed positions have no nominee.
Lack of enforcement for FVRA. Finally, the Congressional Research Service has identified more technical concerns, where clarifications could be useful. There is currently no enforcement mechanism for the law. Congress often isn’t notified when positions are filled. Some authorizing statutes have succession plans that conflict with the FVRA, creating uncertainty about what discretionary appointment authority the President has in these situations.
Protect Democracy created a policy paper outlining proposed reforms to strengthen Congress’s capacity to fulfill its Constitutional role. Read a summary below and download the full paper as a PDF here.
Limit the amount of time that a position can be filled under the FVRA
- Amend the FVRA to clarify that a position must be filled within 210 days, and once that period comes to an end, the position should only be occupied by a career official in the agency.
- Amend the FVRA to provide that if a nomination fails, the Acting position should be occupied by a career official.
Clarify that the FVRA is not available when the President fires an official
- Amend the FVRA to make explicit that in the event a Senate-confirmed official is fired, a career official should fill the vacancy until a new confirmation.
Require a public statement by the President to fill a position under the FVRA
- Currently, the Comptroller General is required to report to Congress on when positions are filled under the FVRA, and the reports are not up to date. This should be changed to require the President to make a prompt public announcement.
Reconcile agency-specific succession statutes to address current ambiguities
- Congress should add a provision to the FVRA clarifying that, in the event of any conflict, the agency-specific statute would control rather than the FVRA. The FVRA should only be available to the President once agency-specific statute has been exhausted.
Protect Democracy Op-Ed on FVRA
Justin Vail, “Who Runs The Department Of Homeland Security? Thanks To The Trump Administration, It’s Unclear.”, Talking Points Memo (November 20, 2019)
Letter to Representative Katie Porter
Protect Democracy and a cross-partisan group of good-government organizations sent a letter in strong support of Rep. Katie Porter’s (CA-45) Accountability for Acting Officials Act. The bill would close loopholes which have allowed an excessive number of acting officials to serve in leadership roles — skipping the required Senate confirmation process.
Protect Democracy’s Justin Vail explains, “The COVID-19 pandemic has shown why it is so important to have qualified officials in our government’s top jobs, and yet many roles critical to pandemic response are currently filled by temporary “acting” personnel who have essentially skipped their job interview with the Senate. Congresswoman Porter’s Accountability For Acting Officials Act would help restore functional leadership to federal agencies; it would discourage the president from bypassing the constitutionally mandated confirmation process while preserving the president’s ability to temporarily fill vacant positions with qualified individuals. Presidents of both parties have increasingly exploited loopholes or violated the current vacancies law. It’s time for Congress to act on a bipartisan basis to put an end to this abuse of power.”
Click here to view the PDF.
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