Federal Vacancies Reform Act of 1998

Based on Wikipedia: Federal Vacancies Reform Act of 1998

The Law That Lets Presidents Staff the Government Without Asking Permission

Here's a question that sounds simple but turns out to be surprisingly complicated: What happens when someone running a federal agency quits, dies, or gets fired, and there's no replacement ready?

You might assume the President just appoints someone new. But that's not how it works. The Constitution requires that major federal officials—cabinet secretaries, agency heads, and hundreds of other positions—be confirmed by the Senate. And Senate confirmation can take months. Sometimes years. Sometimes it never happens at all because of political opposition.

So in the meantime, who's actually running the Department of Justice? The Environmental Protection Agency? The Centers for Disease Control?

The answer involves a 1998 law called the Federal Vacancies Reform Act, and understanding it has become essential to understanding how modern presidential power actually works.

The Basic Idea: Temporary Placeholders

The Federal Vacancies Reform Act creates a system for filling empty positions with "acting" officers—temporary placeholders who can run an agency while everyone waits for the permanent appointee to be confirmed.

The law gives presidents three options for who can serve as an acting official.

The first option happens automatically: the "first assistant" to the vacant position steps up. If the Attorney General resigns, the Deputy Attorney General takes over. If the Secretary of Defense leaves, the Deputy Secretary fills in. This is the default. No presidential action required.

The second option is more interesting. The President can reach into the government and pull someone who already holds a different Senate-confirmed position to temporarily run the vacant agency. So the confirmed Secretary of Commerce could, in theory, serve as acting Secretary of State. Already confirmed once, so the logic goes—no need for another confirmation.

The third option is the most controversial. The President can select any senior career employee of the same agency—anyone at the equivalent of a GS-15 pay grade or above on the federal pay scale, which is roughly the threshold for senior management positions—as long as that person worked in the agency for at least 90 days during the year before the vacancy opened up.

This third option doesn't require Senate confirmation. It doesn't even require that the person has ever been confirmed for anything. It just requires them to be a senior employee.

The Time Limits (And How to Get Around Them)

The law sets time limits on how long someone can serve in an acting capacity. The basic rule is 210 days—about seven months. After that, the position is supposed to remain officially vacant until someone is actually confirmed.

But there are extensions. If the President nominates someone and that nomination is pending before the Senate, the clock stops. The acting official can keep serving. If the Senate rejects or the President withdraws that nomination, a new 210-day clock starts. And this can happen twice—first and second nominations each get their own 210-day extension.

New presidents get even more time. When a president first takes office, they have 300 days—a full ten months—to work with acting officials while they assemble their team. This is supposed to account for the chaos of transition.

And here's where it gets clever. The law says that after all these time limits expire, the position must remain vacant. But there's what lawyers call a "loophole." The President can still assign the "nonexclusive duties" of that position to someone—they just can't be called "acting." So you might see someone described as "performing the duties of" Secretary of Whatever, or "exercising the authority of" some position. Different words, similar effect.

Constitutional Questions Nobody Has Fully Resolved

The Constitution's Appointments Clause is pretty clear about major positions: the President nominates, the Senate confirms. That's the deal. The Founders wanted to prevent exactly what the Vacancies Act seems to allow—presidents stacking the government with loyalists who never face Senate scrutiny.

Some legal scholars argue that using the "senior employee" option to install acting cabinet secretaries is unconstitutional. Their argument is straightforward: if a position is important enough to require Senate confirmation, then any person exercising the full powers of that position should also require confirmation. You can't end-run the Constitution just by calling someone "acting."

This isn't a fringe position. Neal Katyal, who served as Acting Solicitor General under President Obama, has argued this view. So have conservative legal thinkers like George Conway and John Yoo. Even Supreme Court Justice Clarence Thomas has suggested in his writings that he's sympathetic to this interpretation.

On the other side, lawyers in the Office of Legal Counsel—the Justice Department office that provides legal advice to the executive branch—have concluded that all acting officers are constitutionally "inferior officers" who don't need Senate confirmation. This interpretation is obviously convenient for whoever happens to be president at the time.

No court has definitively resolved this question. The constitutional uncertainty just hovers there, occasionally flaring up when a particularly controversial acting appointment happens.

The Nomination Catch-22

There's a clever provision in the law meant to prevent an obvious abuse. You might think a president could nominate someone for a position, have them serve as "acting" while the nomination is pending, and then just never push for actual confirmation. The acting official gets to run the agency indefinitely, and the Senate never gets its say.

The Vacancies Act tries to block this. It says that a person nominated for a position generally cannot serve as the acting officer for that same position. You can't be both the nominee and the placeholder.

There's an exception, though. If you were already serving as the first assistant—if you were already the Deputy and stepped up automatically when your boss left—then you can continue serving while your nomination is pending. But even this has limits: you must have been in that first assistant position for at least 90 days, or you must have been confirmed by the Senate for that position.

The goal is to prevent presidents from creating their own line of succession by installing loyalists as deputies specifically so they can later become acting officials.

When Other Laws Override

The Vacancies Act isn't the only law governing succession at federal agencies. Congress has sometimes passed specific statutes that create different rules for particular positions, and these can override the general Vacancies Act framework.

The Department of Homeland Security is a good example. After the September 11th attacks, Congress decided that the line of succession for the Secretary of Homeland Security needed to be crystal clear and different from the default rules. So the Homeland Security Act, as amended, specifically puts the Under Secretary for Management third in line, regardless of what the Vacancies Act might otherwise say. The Secretary can also establish their own succession order that departs from the Vacancies Act's normal rules.

Similarly, the Intelligence Reform and Terrorism Prevention Act of 2004 specifies that the Principal Deputy Director of National Intelligence is first in line when the Director's position becomes vacant. Congress decided this was too important to leave to the general rules.

The Department of Labor operates under yet another regime—one that has no time limit at all on how long an acting secretary can serve.

These exceptions create a patchwork. Different agencies have different rules. What's allowed at one department might be prohibited at another. If you want to know who can legally run a particular agency, you might need to check both the Vacancies Act and whatever agency-specific laws Congress has passed.

A Brief History: Why 1998?

The Vacancies Act wasn't invented in 1998. It was revised. The original law dated back to 1868—right after the Civil War, when Congress was deeply worried about President Andrew Johnson appointing officials without Senate approval.

For over a century, that original law worked reasonably well. But after the Watergate scandal in the 1970s, administrations discovered they could get around the strict Vacancies Act rules by using other laws. Various statutes allowed agency heads to "delegate" their functions to subordinates. Instead of formally appointing someone as acting secretary, you could just delegate all the secretary's powers to a deputy. Same effect, different legal mechanism.

By the late 1990s, this workaround had become common. A 1998 report found that about 20 percent of the roughly 320 positions requiring Senate confirmation were filled by people who had never been confirmed. The Vacancies Act had become a dead letter.

Senator Fred Thompson of Tennessee—then chairman of the Senate Governmental Affairs Committee—pushed for reform. His bill wasn't popular with everyone. It broke along partisan lines, with Republicans generally supporting stricter rules and Democrats opposing them. Democrats filibustered, preventing a direct vote. The cloture vote to end debate failed 53-38, with Senator Robert Byrd of West Virginia as the only Democrat voting to proceed.

Thompson's bill might have died there, but it was attached to an enormous omnibus spending bill that had to pass or the government would shut down. President Clinton signed it into law on October 21, 1998.

The Reporting Requirements Nobody Followed

The 1998 law included something that sounds sensible: reporting requirements. Agencies were supposed to notify Congress and the Government Accountability Office whenever they installed a temporary acting officer. The Comptroller General—who heads the Government Accountability Office—was supposed to alert Congress whenever an acting official served longer than legally permitted.

There was also a requirement that agencies create formal lines of succession for disasters and emergencies. This seemed like an obvious thing to do.

But many agencies simply ignored these requirements. It wasn't until after September 11, 2001, that the succession planning provision was finally taken seriously. Within months of the attacks, President George W. Bush signed executive orders establishing formal succession lines for seven key departments.

These agency succession plans, it should be noted, are entirely separate from the Presidential line of succession—the familiar list that goes Vice President, Speaker of the House, President Pro Tempore of the Senate, and then through the cabinet. That line is governed by the Constitution and the Presidential Succession Act, not the Vacancies Reform Act.

Constitutional Critiques

In 2001, a law student named Joshua Stayn published an article in the Duke Law Journal arguing that the Vacancies Reform Act had at least four constitutional problems.

First, the law allows the Senate to effectively reject people the President never formally nominated. When a president sends a "notice of intent to nominate," the Senate can start its clock running even before an actual nomination arrives. Stayn argued this confused the distinct constitutional steps of nomination and confirmation.

Second, the law interferes with the President's recess appointment power—the constitutional provision allowing presidents to temporarily fill positions when the Senate isn't in session.

Third, the law requires agencies to report vacancies directly to Congress without presidential clearance. Stayn argued this undermined the President's control over the executive branch.

Fourth and most provocatively, Stayn argued that giving incoming presidents 300 days of acting appointments was actually too much power. The Constitution's confirmation requirement exists specifically to prevent presidents from filling the government with unvetted cronies. Letting a new president run the entire executive branch for ten months without any Senate confirmations undermines that check.

These arguments have never been definitively tested in court. They remain theoretical critiques of a law that continues to operate.

When Things Get Litigated

The Vacancies Act remained relatively obscure—a subject for administrative law specialists—until recent years, when aggressive use of acting appointments thrust it into public debate.

In November 2018, President Trump appointed Matthew Whitaker as Acting Attorney General after Jeff Sessions resigned. Whitaker had been Sessions's chief of staff—a senior employee of the Justice Department, but not someone the Senate had ever confirmed for anything. Legal scholars, including Neal Katyal, argued this was unconstitutional. The position of Attorney General was too important, too much a "principal officer" under the Constitution, to be filled by someone who had never faced Senate confirmation.

The Trump administration defended the appointment, and Whitaker served until William Barr was confirmed as the permanent Attorney General a few months later. No court ever ruled on whether Whitaker's appointment was valid.

In 2019, the administration found an even more creative approach. Ken Cuccinelli was installed as acting director of U.S. Citizenship and Immigration Services, and Mark Morgan as acting director of Immigration and Customs Enforcement. But neither was simply promoted from an existing position. Instead, the administration created new "principal deputy director" positions—jobs that hadn't existed before—and appointed Cuccinelli and Morgan to those positions first. Then, as "first assistants," they automatically became acting directors.

Critics called this a manipulation of the law's structure. The whole point of the "first assistant" default was that someone already in the agency's chain of command would step up. Creating a new position specifically to install someone as the automatic successor seemed to circumvent the law's intent.

This one did get litigated. In March 2020, a federal judge ruled that Cuccinelli's appointment was invalid. The judge found that the newly created "principal deputy director" position didn't count as a "first assistant" under the law because Cuccinelli had never actually served under any other official at the agency. The role was invented specifically to make him the automatic successor. That wasn't what the law contemplated.

Ongoing Enforcement Problems

In February 2023, the Government Accountability Office reported that three acting heads of executive departments were serving in violation of the Vacancies Act. The time limits had expired. The positions should have been officially vacant. But the acting officials remained in place.

What happens when an acting official serves longer than the law allows? The Vacancies Act says that any action taken by someone serving in violation of its requirements "shall have no force or effect." In theory, this means regulations issued, orders signed, and decisions made by illegal acting officials are void.

In practice, this creates a mess. It's often unclear which actions are invalid. It's expensive and time-consuming to litigate. And by the time any court rules, the acting official may have been replaced by a permanent appointee anyway. The threat of invalidation exists, but it's rarely enforced.

A 2025 Case Adds New Limits

The law continues to evolve through litigation. In August 2025, a federal judge addressed another question: when exactly can a "first assistant" step into an acting role?

The case involved Alina Habba, appointed as Acting United States Attorney for the District of New Jersey. The judge ruled that a first assistant can only become an acting official at the moment the vacancy occurs. If you become the first assistant after the position is already vacant, you don't automatically step into the acting role. You missed your window.

This ruling, if it stands, closes another potential loophole. It prevents administrations from installing loyalists as first assistants during a vacancy and claiming they automatically become acting officials.

The Larger Problem

The Federal Vacancies Reform Act represents an uneasy compromise between two competing values.

On one hand, the government needs to function. Agencies can't simply stop operating whenever their leader leaves. Someone needs to be in charge, making decisions, keeping the machinery running.

On the other hand, the Constitution contemplates that important positions will be filled by people the Senate has vetted. The confirmation process exists precisely because the Founders worried about presidents concentrating power in unaccountable officials.

The Vacancies Act tries to serve both values by allowing temporary acting officials but imposing time limits and reporting requirements. But the time limits can be extended, the reporting requirements are often ignored, and creative lawyering continually finds new ways to install officials without Senate approval.

Some observers argue the real problem is that Senate confirmation has become too slow and too contentious. If nominations moved faster, presidents wouldn't need to rely so heavily on acting officials. Others argue that presidents have become too aggressive in using acting appointments to avoid congressional oversight entirely.

What's clear is that the 1998 law, itself a revision of an 1868 law, is unlikely to be the final word. As long as there's tension between the executive branch's need to operate and the Senate's desire to vet nominees, the rules for filling vacancies will remain contested territory.

The next time you read about someone "performing the duties of" a cabinet position, or serving as an "acting" official at a major agency, you'll know: there's a whole legal apparatus behind that title. Whether that apparatus adequately balances presidential power and congressional oversight is a question that's been debated since Reconstruction and shows no signs of being resolved anytime soon.