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Blog Post | November 5, 2020

Biden Can Still Govern Without the Senate. Here’s How.

2020 Election/TransitionAdministrative Law

This page will continue to be updated. 

Having won more votes than any President in U.S. history, Joe Biden is set to enter the Oval Office with a mandate. However, it looks as though the wave that will have propelled him to the White House may not have been strong enough to break Republican control over the profoundly undemocratic Senate. For at least the next two years, Biden’s legislative agenda will face a formidable breakwater in the form of Senate Majority Leader Mitch McConnell. There is little doubt that McConnell will attempt to extend his stranglehold on action to the executive branch as well, by denying the President many, if not all, Senate confirmations. 

To allow him to do so — especially when the President has so many tools to beat back this assault — would be a profound betrayal of the democratic mandate Joe Biden has been given. 

Below, we answer your burning questions about what those tools are and how they can be used. This is a work in progress and we welcome feedback, corrections, or clarifications at [email protected]


What is the Vacancies Act?

The Federal Vacancies Reform Act (“Vacancies Act”) establishes the primary means by which positions that are filled with the advice and consent of the Senate, may be temporarily filled in the event of a vacancy. The Act designates the classes of people who are eligible to fill vacant seats temporarily and stipulates the permissible length of that temporary service. 

Non-Vacancies Act compliant officials lack the legal authority to perform the functions or duties of their temporary office. Any action taken in a period of non-compliance is subject to being voided. 

Why is it necessary?

With over 1000 positions across the government requiring Senate confirmation, vacancies are an inevitable feature of the modern executive branch. For any number of reasons — illness, sudden resignation, or death — Senate-confirmed officials may step down at a moment’s notice and a new official cannot be confirmed overnight. Selection, vetting, and confirmation all take time. That final hurdle, in particular, has been rising higher and higher in the age of growing polarization.  

As nominees work their way through this process, agency operations cannot simply come to a halt. In recognition of this fact, Congress created the means for a President to make interim appointments and ensure continuity of operations.  

Who can serve as an acting official?

The Vacancies Act allows the President to choose from one of three classes of federal employees to fill a vacant seat. By default, the “first assistant” to the office fills the position in the event of a vacancy. The Act does not define the first assistant but, in some cases, agency statute or regulation designates a specific “first assistant” for each office. Where such designations are absent, who acts as an office’s first assistant may be up to debate. 

While an office’s first assistant will assume a vacancy by default, the President has the option to choose among other officials to fill the vacant seat. The President may:

  • “direct a person who has been confirmed to a different advice-and-consent position to serve as acting officer designate;” or
  • “select a senior ‘officer or employee’ of the same executive agency, if that employee served in that agency for at least 90 days during the year preceding the vacancy and is paid at a rate equivalent to at least a GS-15 on the federal pay scale.”

A handful of limitations apply to a president’s selection among these classes. An official may not fill a role for which they have been nominated unless they are the first assistant to the office and have either served in the first assistant position for 90 days or were confirmed to the first assistant position.

How long can they serve?

Several independent factors dictate the length of time for which a position may be filled in an acting capacity. The first clock begins ticking from the moment the seat is vacated. Absent any additional action, an acting official can fill that seat for the 210 days following the start of the vacancy. At the end of that period, the seat must be vacated unless the President makes a nomination to fill the vacancy on a permanent basis. 

The Vacancies Act extends this initial period for vacancies that exist at time of or occur right after a president’s inauguration. Specifically, “if a vacancy exists on the new President’s inauguration day or occurs within 60 days after the inauguration, then the 210-day period begins either 90 days after inauguration or 90 days after the date that the vacancy occurred, depending on which is later.”

Nomination marks the beginning of a timeline independent from the first. An acting official may serve in the role for the pendency of the nomination. Additionally, an acting official may fill the role for 210 days after the date on which a nomination is rejected, withdrawn, or returned. This process can be repeated for a second nomination but no further nominations. If no official has been confirmed at that time, the seat must remain vacant until such time as someone is confirmed. 

In total, an official serving under the Vacancies could serve for a period of over 720 days (the exact number would depend on the duration of the pendency of nominations and the exact date on which an official steps down following the inauguration). In other words, if necessary, the next President could rely on acting officials in the face of Senate intransigence for almost two years. 

What can they do?

Officials appointed under the Vacancies Act’s procedures and parameters are empowered to perform all of the “functions” or “duties” of that office. To the degree that there are limitations on a duly installed acting official’s authority, they are political and relational, not statutory. Temporary officials may lack the time to familiarize themselves with the agency and launch an agenda and may suffer from lower levels of respect from other agency officers. These are important considerations but, ultimately, do not undercut the necessity of using acting officials, especially when unfilled vacancies are the alternative. 

Does the Act cover all Senate-confirmed officials?

No, the Vacancies Act does not apply to several classes of Senate-confirmed positions. Those are:

  • “officers of ‘the Government Accountability Office;” 
  • members of multimember boards that govern independent agencies and government corporations; and
  • federal judges serving in “a court constituted under article I of the United States Constitution.” 

Courts have ruled that many acting officials under Trump were serving in their roles illegally; will Biden run into the same problem?

The Trump administration has been careless in its use of the Vacancies Act, regularly disregarding its basic parameters. As long as the next administration carefully adheres to the Act’s limitations on the classes of people who may serve and the length of their temporary appointments, it should not face similar legal setbacks

Trump has been criticized for his heavy reliance on acting officials. Would it not be hypocritical for Biden to use them as well?

No, although there will be a strong impulse to brand this strategy hypocritical, it is important to recognize the differing contexts. The Trump administration has made extensive use of the Vacancies Act despite facing a friendly Senate. Further, it has regularly violated the Act, installing officials in an illegal manner.

In contrast, Joe Biden, despite having won a sizable majority, will face an uncooperative Senate majority representing a minority of voters. If properly followed, the Vacancies Act provides a legal, and well-practiced, means to ensure that a President can keep the government working in the event of lengthy vacancies. 

Key Sources:

“The Vacancies Act: A Legal Overview,” Congressional Research Service, May 28, 2020, https://www.everycrsreport.com/files/2020-05-28_R44997_99d3ab12b53e15aef19967132f70df1758eb2f48.pdf

Anne Joseph O’Connell, “Actings,” Columbia Law Review, Vol. 120:613, https://columbialawreview.org/wp-content/uploads/2020/04/OConnell_Actings.pdf

2020 Election/TransitionAdministrative Law

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