When a senior federal official leaves, someone still has to run the office while the president nominates a successor and the Senate considers the nomination. Federal law lets certain officials step in temporarily, but which rules apply can depend on how the vacancy arose.
In his 2019 Harvard Journal on Legislation note, “Boundaries of the Federal Vacancies Reform Act,” Ben Miller-Gootnick focuses on vacancies created when a president removes a Senate-confirmed official. He argues that the Act does not authorize an acting appointment in that circumstance.
How the Federal Vacancies Reform Act Works
Many senior executive branch positions are filled through presidential nomination and Senate confirmation. When one of these offices becomes vacant, the Federal Vacancies Reform Act allows someone else to perform its duties temporarily.
The default acting officer is the office’s “first assistant,” usually its top deputy. The president may instead choose any other Senate-confirmed official or a senior employee of the same agency who meets the Act’s requirements. An acting officer can generally serve for 210 days, and longer while a nomination is pending. The Act also allows extra time at the start of a new administration when many offices may be vacant at once.
The statute applies when a covered officer “dies, resigns, or is otherwise unable to perform” the office’s duties. It also specifies that the expiration of a term counts as an inability to perform those duties. Presidential removal is not expressly listed.
Some offices also have their own succession statutes. The Deputy Attorney General, for example, can act as Attorney General in the event of a vacancy. Whether an acting official can serve after a removal may therefore depend on both the office and the law invoked to fill it.
Ben Miller-Gootnick’s Reading of the Statute
Ben Miller-Gootnick analyzed the catchall phrase “otherwise unable to perform” in light of the two words that precede it, “dies” and “resigns.” On that reading, the phrase does not reach every way an office can become vacant.
That analysis is an application of the interpretive canon ejusdem generis, under which a general phrase that follows a list of specific terms covers things of the same kind. What death and resignation have in common, he argues, is that neither results from a president’s decision to dismiss the officeholder. A removal, by definition, does.
The note also draws on the Act’s structure, earlier vacancies legislation, and the language Congress has used in succession statutes for individual agencies. Some of those agency statutes referred broadly to any vacancy, while the Vacancies Act retained its list of specific triggering events. And if “otherwise unable to perform” covered every vacancy, Miller-Gootnick points out, Congress would not have needed a separate provision for expired terms.
Ben Miller-Gootnick also reviews the legislative history and how the Justice Department and the courts have interpreted the Act. The Department’s Office of Legal Counsel has taken the position that the Act can apply after a firing. The note disagrees, concluding that the text and historical context support a narrower reading of the Federal Vacancies Reform Act.
Why Removals Are Different
An acting official can carry out the duties of an office for months while a nominee awaits confirmation, and those months may include consequential decisions on rules, enforcement, and personnel.
For Miller-Gootnick, the trouble comes when a president fires a confirmed official and then picks a temporary replacement under the Act. The president would then have both created the vacancy and chosen who fills it, which Miller-Gootnick says cannot be what Congress intended.
That is especially clear when the acting official holds no Senate-confirmed office at all. Allowing an official without Senate confirmation to temporarily exercise authority that belonged to an officer the Senate had confirmed could in fact present constitutional concerns.
Ben Miller-Gootnick therefore reads the statute not to authorize the president to temporarily fill vacancies created by firing the prior officeholder. But he also acknowledges the cost of his reading. Under it, the Act would offer no way to install an acting official after a firing, even when an agency needs leadership quickly. An office-specific succession statute may fill the gap, but such a statute will not always be available. That, he observes, is a real policy problem.
A Proposed Change to the Law
To close that gap, the note proposes an amendment that would expressly extend the Act to removals while limiting the president’s choice of acting official in most such cases. The goal is to keep agencies properly staffed after a firing without letting the president handpick the fired official’s replacement with no Senate consent.
When a president removes an official more than 90 days after the beginning of a presidential term, the first assistant would be the only person eligible to serve as an acting officer under the Act’s temporary appointment provisions. During the first 90 days of a term, the president could still choose anyone who otherwise qualifies under the Act to serve.
Ben Miller-Gootnick considered the possibility that officials from an outgoing administration might decline to resign, leaving an incoming president unable to install temporary replacements. The 90-day-window provision would thus give the incoming president greater flexibility during that transition period.
One practical issue in Ben Miller-Gootnick’s Federal Vacancies Reform Act scholarship is the selection of deputies who may become acting officers. He suggests that presidents and the Senate could consider the possibility that a principal deputy could serve as acting when selecting and confirming officials to those roles.
About Ben Miller-Gootnick
Ben Miller-Gootnick is a Washington, D.C.-based public law attorney. He earned his undergraduate degree from Brown University and his J.D. magna cum laude from Harvard Law School, where he served as an Executive Editor of the Harvard Law Review.
His experience includes federal appellate litigation, congressional investigations, and counsel work on the U.S. House Committee on the Judiciary. His scholarship has received recognition from the American Bar Association and the American Constitution Society. Readers can learn more about Ben Miller-Gootnick on his personal website.
