President-elect Donald Trump is gearing up to start his second term in the White House soon, and he has hinted at using recess appointments to bypass Senate confirmation and swiftly place his chosen individuals in key roles within the federal government. This move has sparked backlash from some Republicans, but there is another avenue through which Trump could place his loyalists in high-ranking positions without Senate approval, albeit temporarily: the Federal Vacancies Reform Act of 1998, also known as the Vacancies Act.
The Vacancies Act sets guidelines for presidents to appoint acting officials to fill vacant positions that require Senate confirmation. It restricts which government employees can temporarily fill around 1,300 federal offices that necessitate nomination by the president and approval by the Senate. This tactic wouldn’t be new to Trump, as he utilized “acting” leaders in various federal agencies during his first term, such as the Departments of Defense and Interior, as well as the Environmental Protection Agency.
Some of the individuals Trump plans to nominate may encounter obstacles in the Senate, like Pete Hegseth for the Pentagon and Tulsi Gabbard for director of national intelligence. In such cases, the Vacancies Act could serve as a crucial tool for Trump to ensure that agencies are staffed with individuals who align with his vision and priorities.
Thomas Berry, a legal scholar at the Cato Institute, highlighted the policy choice by Congress to have approximately 1,300 positions requiring Senate consent. However, a significant portion of these positions is filled by individuals not confirmed by the Senate due to the flexibility provided by the Vacancies Act. Acting officials or sub-delegates can essentially act in the same capacity as Senate-confirmed appointees for extended periods.
The Vacancies Act outlines three categories of federal workers who can temporarily assume positions covered by the law: the “first assistant” or deputy to the vacant office, another administration official with Senate confirmation, and an agency employee who has worked there for at least 90 days in the year preceding the vacancy and is at the highest level of the civil service pay scale. The Act also imposes time limits on how long an acting official can serve, permitting them to hold the position for 300 days at the start of a new administration. If the appointment occurs after the commencement of a term, the individual can serve for 210 days, with the possibility of extension if a nomination is pending in the Senate.
During his initial term, Trump appointed noncontroversial, long-serving civil servants to act in various roles while awaiting confirmation. He might opt for a similar approach in the early days or weeks of his second term. Berry noted that the landscape would evolve as Trump’s tenure progresses, with Senate-confirmed officials in lower-level positions becoming available for acting roles.
Research by Anne Joseph O’Connell, a law professor at Stanford University, indicated that Trump employed more temporary leaders than confirmed appointees during his first term, with 30 acting secretaries. The extent to which Trump utilizes the Vacancies Act in his second term’s early stages could hinge on his legislative priorities, particularly with a Republican-controlled Congress focusing on issues like tax reform and border security.
The Vacancies Act could offer an alternative pathway for filling lower-level agency positions if Senate confirmation is delayed. Trump has announced several personnel picks since winning the election, ranging from Cabinet nominees to ambassadors and senior White House staff. Notably, former Rep. Matt Gaetz of Florida withdrew from consideration for attorney general amidst allegations of misconduct and drug use.
While attention is often on senior appointments in the administration, the Vacancies Act could also be employed to fill subagency leadership roles or delegate duties to subordinates. Berry emphasized the significance of this strategy for influential positions just below the secretary level.
As Trump gears up for his second term, the utilization of the Vacancies Act could play a crucial role in shaping the composition of his administration. The interplay between Senate confirmation, legislative priorities, and the appointment process will influence how Trump navigates the complexities of staffing federal agencies with individuals who align with his agenda.
