R44997 — The Vacancies Act: A Legal Overview

The Federal Vacancies Reform Act of 1998 (Vacancies Act or Act, 5 U.S.C. §§ 3345–3349e) generally provides the exclusive means for a government employee to perform temporarily the functions and duties of a vacant presidentially appointed, Senate-confirmed position in an executive agency, also known as an advice-and-consent position. The Vacancies Act both authorizes and limits acting service in two primary ways. First, the Vacancies Act provides that three classes of people may serve temporarily in an advice-and-consent position. As a default rule, the first assistant to a position automatically becomes the acting officer. Alternatively, the President may direct either certain senior officials of the agency or any Senate-confirmed official to serve as the acting officer. Second, the Vacancies Act governs the length of time a person may serve as acting officer: a person may serve (1) for a limited time period running from the date that the vacancy occurred; and (2) during the pendency of a first or second nomination to that office, with extensions if the nomination is rejected, withdrawn, or returned. The Vacancies Act stipulates that unless a covered acting officer is serving in compliance with the law, any attempt to perform the functions and duties of that office will have no force or effect. Noncompliant actions are void and may not be ratified. The Vacancies Act is primarily enforced when a person injured by an agency action brings a lawsuit arguing that an acting official violated the Act and therefore that the action is void. While the Vacancies Act states that it is generally the exclusive means to authorize acting service, courts have interpreted the law to allow at least two other means of temporary service. First, on its face, the Vacancies Act is exclusive unless another statute expressly authorizes acting service. An agency-specific statute governing acting service may render the Vacancies Act nonexclusive, or possibly even inapplicable. Second, some courts have interpreted the Vacancies Act only to govern the performance of the functions and duties of an office that are nondelegable. E.g., Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1337 (Fed. Cir. 2022). Unless a statute or regulation expressly specifies that a duty must be performed by the absent officer, that duty may likely be delegated to another government employee. Under this interpretation, an agency may delegate many, if not all, of the duties of a vacant office to another official without violating the Vacancies Act. At the same time, some courts have invalidated delegations that they view as an end-run around the Vacancies Act, holding that the Act prohibits using general vesting-and-delegation statutes to delegate all of a vacant office’s functions in a way that is indistinguishable from acting service. E.g., United States v. Giraud, 160 F.4th 390, 403 (3d Cir. 2025). The Appointments Clause of the U.S. Constitution may also limit acting service in some circumstances. The Appointments Clause requires “Officers of the United States” to be appointed through specific processes. U.S. Const. art. II, § 2, cl. 2. In particular, so-called “principal officers” such as the heads of departments may be appointed only through Senate confirmation, and inferior officers must be appointed by Senate confirmation, the President, a department head, or a court. Acting service may raise constitutional concerns if it allows an official to perform the duties of an “Officer of the United States” absent a proper appointment. While the Supreme Court approved of certain acting service “under special and temporary conditions” in United States v. Eaton, 169 U.S. 331, 343 (1898), open questions remain about the constitutionality of service under the modern Vacancies Act.

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• HR 6972 — Securing Chain of Command Continuity Act · 118th Cong