Time Is Running Out on Acting Officials’ Authority Under Vacancies Act

Nov. 16 looms large for government leaders paying attention to the 1998 Federal Vacancies Reform Act. The law stipulates that 300 days after a president is sworn in, officials who have been serving in an acting capacity since that time lose much of their authority. With the pace of Trump administration nominations lagging far behind that of previous administrations—hundreds of senior government positions remain unfilled—the White House and agency officials will soon find themselves improvising.

The impact on federal operations is potentially significant. Of 610 key agency positions tracked by the nonprofit Partnership for Public Service and the Washington Post, the White House has won Senate confirmation of 173. The White House has submitted another 169 nominations to the Senate and announced seven others that await official nominations. But Trump has offered no nomination for 261 positions.

A separate tally compiled by the academic-run White House Transition Project, which uses a different selection of key jobs (980 appointed positions and 221 critical leadership slots), confirms the unusually high number of vacancies. “Overall, President Trump’s performance continues to trail previous administrations by exactly three months,” said its analysis, updated as of Oct. 27. “Despite special Senate efforts to confirm large numbers of nominees, President Trump has the fewest nominations and fewest confirmations in 40 years. Senate pace on vetting confirmations continues to take more than twice as long than for the past three administrations.”

Some of these omissions are intentional, as the president on Nov. 2 reiterated in an interview with Fox News’s Laura Ingraham, saying his business background tells him “where you don’t need to fill the jobs, don’t fill ‘em.” His press secretary, Sarah Huckabee Sanders, on Oct. 10 told reporters that “the president came to Washington to drain the swamp and get rid of a lot of duplication and make government more efficient. And so if we can have one person do a job instead of six, then we certainly want to do that and save taxpayer dollars.”

The slow-walk by Trump and the Senate has forced agencies to fall back on career staff, who, however knowledgeable in their field, may be reluctant to take political risks usually born by presidential appointees.

The scope of the problem for federal agencies is difficult to assess because the time limit for an acting officer is suspended if the president nominates someone to fill the position. But for those acting officials serving in positions for whom no nominee has been named, their authority could soon be sharply curtailed.

The problem recently prompted examinations of agency options by the Congressional Research Service and the Partnership for Public Service on how to handle Vacancies Act requirements, which determine both who may serve as an acting officer and the time for which they may serve.

After 300 days without a nominee “the office would be designated vacant, for purposes of the Vacancies Act, and only the head of the agency would be able to perform the functions and duties of that vacant office,” wrote CRS legal analyst Valerie Brannon in a legal advisory obtained by Federation of American Scientists secrecy blogger Steven Aftergood. “If an office designated vacant under this provision is that of the agency head, it appears that no one can temporarily perform the functions and duties of that office under the Vacancies Act,” it said. “If the acting officer remains in office and attempts to perform a non-delegable function or duty—one that a statute or regulation expressly assigns to that office—that action will ‘have no force or effect.’ ”

Enforcement against agencies that fail to abide by the Vacancies Act is unclear, Brannon wrote in a broad overview of the law. “The text of the Vacancies Act does not contemplate a means of removing any noncompliant acting officers.”

But such situations do open up the possibility of litigation, the CRS overview continued. “Third parties injured by the decisions of an acting officer might challenge those agency actions in court. If a court agrees that the challenged action violated the Vacancies Act, then it would likely vacate that agency action. But the judicial process is slow and depends on a person with standing actually bringing a lawsuit,” she writes. “The limited amount of case law examining the Vacancies Act suggests that such cases are relatively rare.”

The legal and managerial damage looming for agencies was brought home in February 2016, when the inspector general for the Office of Personnel Management determined that then-acting OPM Director Beth Cobert was not actually eligible for the job. Based on a reading of an August 2015 Supreme Court ruling in SW General Inc. v. National Labor Relations Board, Cobert’s decisions at OPM were null and subject to court challenge.

It falls to the Comptroller General, as head of the Government Accountability Office, to receive mandatory agency reports and to alert Congress to any vacancies that have neared their expiration date. This official also notifies the president and OPM. “In the past, Congress has asked GAO to issue opinions on whether particular officials serving in acting capacities served in violation of the Vacancies Act,” noted an explainer released last week by the partnership. Its researchers “found 20 GAO opinions on potential Vacancies Act violations. In all but one of those cases, GAO found that the acting official’s service violated the Vacancies Act’s provisions.”

A handful of positions are exempt from the Vacancies Act, according to the partnership, including presidentially appointed members of boards or commissions; commissioners of the Federal Energy Regulatory Commission or Surface Transportation Board; Senate-confirmed judges; the general counsels of the National Labor Relations Board and the Federal Labor Relations Board; inspectors general and chief financial officers confirmed by the Senate; and holders of any office in which a statutory provision prohibits the agency head from performing its duties.

The partnership noted that “there has historically been some disagreement between the legislative and executive branches over which executive branch positions are affected by the Vacancies Act cap.”