Abuses of the Vacancies Act
Vacancies Act abuses allow the president to circumvent the Senate
(Photos: Getty Images; Illustration: Leslie Garvey / POGO)
There are between 1,200 and 1,400 presidentially nominated, Senate-confirmed positions across the federal government (also known as “advice-and-consent” or “PAS” positions). When a new presidential administration begins, or when an official retires or can no longer perform their duties, it’s important those roles be filled with qualified people as soon as possible.
Article II, Section 2, Clause 2 of the Constitution charges the president to seek advice and obtain the consent of the Senate before their nominees assume office. The public relies on their senators to thoroughly vet the president’s nominations to ensure they are qualified and fit for office. The confirmation process also allows nominees to identify and resolve potential conflicts of interest and senators to explore nominees’ policy positions and extract commitments.
Because this confirmation process can take a long time, presidents use “acting” officials to hold these positions and keep agencies working efficiently until permanent replacements are confirmed. While their work is critical to keeping our government working, acting officials often lack the authority and independence of their Senate-confirmed counterparts. This poses particular challenges when they’re leading agencies. They may hold multiple positions at the same time or be reluctant to make big or lasting decisions.
“Both Democratic and Republican presidents have abused the Vacancies Act to serve their own interests.”
In 1998, Congress passed the Federal Vacancies Reform Act (Vacancies Act), setting out rules detailing who is allowed to perform the functions and duties of a vacant office as an “acting” official and how long they can perform them. The law was intended to ensure stability and continuity in government, and to some degree it has been successful. But its limitations, ambiguities, and enforcement challenges have allowed presidents of both parties to circumvent the Senate’s power of “advice and consent.” Skirting the Congress in this way prevents our federal agencies from working as they should, and it makes life harder for Americans who rely on those agencies.
Both Democratic and Republican presidents have abused the Vacancies Act to serve their own interests. Under President Barack Obama, Vanita Gupta served as acting assistant attorney general for the Civil Rights Division beyond the length of time prescribed by the law. During the Biden administration, the Government Accountability Office — tasked by Congress to track Vacancies Act violations — found several acting officials serving in violation of the act, such as the assistant secretary for civil rights in the Department of Agriculture.
President Donald Trump has publicly embraced the possibility of avoiding Senate confirmation for appointees. He made widespread use of acting officials in his first term, and after his 2024 reelection, he suggested that Congress adjourn so he can make appointments during recess, skipping the confirmation process altogether. Should the Senate agree, it would be a major dereliction of their constitutional duty.
There are a number of proposals Congress should consider to close the loopholes and remove the ambiguities from the Vacancies Act, such as passing the Accountability for Acting Officials Act or similar legislation. It must not let the executive branch circumvent this foundational power. We need an empowered Congress ready to examine presidential nominations to determine whether they are qualified to serve in positions that impact all of our lives.
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Faith Williams Faith Williams
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