As the countdown to President-elect Donald Trump's second term inauguration ticks away, he has hinted at the possibility of utilizing recess appointments to bypass the Senate confirmation process.
This move would expedite the installation of his chosen candidates into key roles throughout the federal government.
According to CBS News, Trump's proposal has been met with resistance from some Republicans. However, there is an alternative method for Trump to appoint his loyalists to high-ranking positions without Senate approval, albeit temporarily. This method involves a federal law that has been in place for a quarter of a century, which outlines the rules for presidents to appoint acting officials to fill vacant positions that require Senate confirmation.
The Federal Vacancies Reform Act, or the Vacancies Act, was enacted in 1998. It restricts which government employees can temporarily fill approximately 1,300 federal offices that require nomination by the president and approval by the Senate. This strategy is not unfamiliar to Trump, who appointed "acting" leaders to various federal agencies and subagencies during his first term, including the Departments of Defense and Interior and the Environmental Protection Agency.
Some of Trump's nominees are expected to encounter opposition in the GOP-led Senate, such as Pete Hegseth, his choice for Pentagon leadership, and Tulsi Gabbard, his prospective nominee for director of national intelligence. The Vacancies Act could prove to be a crucial instrument for Trump to ensure that these agencies are staffed with individuals who are loyal to him and his agenda.
"Congress has made the policy choice to have about 1,300 positions still require Senate consent," stated Thomas Berry, a legal scholar at the Cato Institute. "But what we have now is that any given time, half or more than half of those are filled not by Senate-confirmed people, not because Congress made that policy choice, but because the Vacancies Act can be pushed to the limit and maybe even beyond its limits, and it's so easy to have acting officers or sub-delegates essentially act in exactly the same way they would if they were Senate confirmed for years at a time."
The Vacancies Act stipulates three categories of federal workers who can temporarily fill a position covered by the law. It also sets a time limit for how long an acting official can serve, allowing them to fill the position for 300 days when installed at the beginning of a new administration. Temporary leaders elevated after the start of a term can remain in their role for 210 days, but that cap can be extended if a nomination is pending in the Senate. If a nomination is rejected, returned or withdrawn, the president gets another 210 days.
When Trump first took office in January 2017, he appointed noncontroversial, longtime civil servants to serve in acting roles while the confirmation process played out, Berry said. He could do the same again for the first days or weeks after he returns to the White House on Jan. 20.
However, Berry anticipates that the landscape will change as Trump's second term progresses. Eventually, there will be Senate-confirmed officials in lower-level positions and those at the highest pay grade who have served in their agencies for more than 90 days. Those officials could then be tapped for acting positions.
"The vacancies people should be more concerned about, the vacancies where Trump has a lot more flexibility, are the ones that occur in the middle of the term, not right on day one," he said.
Presidents from both parties have installed acting officials in high-ranking positions in their administrations. However, Trump used more temporary leaders than those who were confirmed during his first four years in the White House, according to research from Anne Joseph O'Connell, a law professor at Stanford University who has extensively studied the Vacancies Act.
How much Trump relies on the 1998 law in the early months of his second term could depend on his legislative priorities. With a Republican-controlled Congress, Trump and GOP lawmakers have said they plan to focus on extending Trump's signature tax reform law, portions of which are set to expire next year, as well as border security. If a Supreme Court member retires, filling that seat would also be a significant priority while Republicans have a Senate majority.
"I assume, given the threat to use the recess appointments clause, that the Senate party leadership is going to work closely with the White House to get the Cabinet or most confirmed quickly through the traditional process, so then the question is, what else will the Senate make a priority?" O'Connell said. "The Vacancies Act offers a second-best pathway for filling agency positions."
Since his November victory, Trump has announced a series of personnel picks, ranging from those who will serve in his Cabinet if nominated and confirmed by the Senate to candidates for ambassadorships to senior White House staff who do not require Senate approval. One of those candidates, former Rep. Matt Gaetz of Florida, whom the president-elect selected for attorney general, withdrew his name from consideration after he came under renewed scrutiny for alleged sexual misconduct and illicit drug use, which he denied.
While much of the focus is on Trump's picks for the most senior roles in his new administration, the leaders of subagencies could be filled through the Vacancies Act or through a delegation of duties to subordinates.
"That strategy can be done at these very influential positions that are just below the secretary level, and that's why you more often see pushing the boundaries of the Vacancies Act at that level," Berry said. This strategy could prove to be a key tool in Trump's arsenal as he navigates the challenges of his second term.
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