112. Acting Officers and the Appointments Clause

Federal law gives the President remarkable latitude to temporarily fill executive branch offices. But there are two ways in which the Supreme Court has suggested the Constitution imposes constraints

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I’ve now written a pair of posts about the Supreme Court and the maneuvering we might see, come January 20, with respect to President Trump’s ability to fill executive branch offices—one about recess appointments; one about the President’s power to involuntarily adjourn Congress. But there’s another important power that presidents possess to fill, at least temporarily, executive branch vacancies—the power to appoint “acting” officeholders, whether under an agency-specific vacancies statute or the more general Federal Vacancies Reform Act of 1998 (FVRA).

As I explain below, the FVRA depends upon a less-than-obvious (and old) body of Supreme Court cases about the relationship between temporary appointments and Article II’s Appointments Clause. And although President Trump stretched the statutory authorities to their limits during his first term, the courts never had a chance to resolve the two major constitutional questions that such appointments raise: How long they can last for, and how related the acting officer’s permanent job must be to their temporary one? There’s undeniably a lot of room for presidents to cause serious mischief before running into these constraints. But there’s also reason to believe, as I explain below, that these constraints might still matter if and when they are tested.

But first, the news.

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On the Docket

Last week was a somewhat busy one at the Court—with the biggest headlines undoubtedly coming out of Wednesday’s oral argument in Skrmetti. The Court also (1) refused to block Missouri’s execution of Christopher Collings; (2) appointed an amicus to defend the Ninth Circuit’s ruling in an immigration case in which the government now agrees with the petitioner; and (3) agreed to take up three new cases on Friday (two of which are consolidated), including an important but technical post-conviction procedure dispute from the Fifth Circuit; and a pair of cases about whether Congress could extend the power of U.S. courts to hear lawsuits against the Palestinian Authority and the PLO. The grant in the Fifth Circuit case means that the New Orleans-based court of appeals is now responsible for 25.5% of the Court’s merits docket this term (14/55 cases). Those cases should be argued either in March or April. And the Court announced, rather belatedly, that Justice Gorsuch is recusing from a case scheduled for argument tomorrow—in which, apparently, a close personal friend of the justice has a significant interest.

This week will also be busy. In addition to the second week of the December argument calendar (the highlight of which is tomorrow’s argument, from which Justice Gorsuch is now recused, in a major case about the National Environmental Policy Act), the justices are also set to release a full Order List this morning at 9:30 ET, and one or more opinions in argued cases tomorrow (Tuesday) starting at 10:00 ET. It’s possible that, like the ruling in the Facebook case, the Court will just hand down a “DIG” (a summary dismissal of certiorari as “improvidently granted”). But it also wouldn’t be beyond the pale to get the first full opinion in a case argued this term.

Finally, the media outlet “Law & Crime” tried to make hay out of what happened with an emergency application filed by John Stockton (yes, that John Stockton) in a case about Washington State imposing discipline on doctors who purveyed COVID-related misinformation (one of the lawyers on the application is, believe it or not, RFK, Jr.). The application had initially been filed with Justice Kagan in her capacity as Circuit Justice for the Ninth Circuit, and Kagan had summarily denied it. The lawyers then asked the Clerk to re-submit the application to Justice Thomas—a move that, as I’ve explained before, the rules technically allow but never actually works. On Wednesday, Thomas referred the application to the full Court—and it was publicly scheduled for the justices’ January 10 Conference. This led Law & Crime to claim that Thomas had “overruled” Kagan and had done something “very unusual.” In fact, this is the exact procedure that the Court follows whenever a litigant asks a second justice for emergency relief that the Circuit Justice denied. Indeed, one of the reasons why I write this newsletter is to help folks understand when these kinds of moves from the Court are unusual, and when they’re … not. (It didn’t help the story that the only person it quoted for the proposition that Thomas’s move was “very unusual” was the lawyer who had precipitated it.)

Sigh.

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The One First “Long Read”:
The Acting Officer Labyrinth

For obvious reasons, there’s been lots of discussion about the President’s ability to appoint officers to senior executive branch positions without the Senate’s consent—including by recess appointments either because the Senate voluntarily adjourns or because the President finds a way to adjourn it involuntarily.

But as folks like Harvard law professor (and former senior DOJ lawyer) Jack Goldsmith have noted, there’s another really significant way in which presidents can fill executive branch positions—and that’s the complex array of authorities to name an individual as the “acting” holder of an office, even an office that would require Senate confirmation to be held on a permanent basis. Before getting to the constitutional issues that could arise in such cases, I thought that a breakdown of how this actually works might be useful.

Filling Executive Branch Vacancies, a Quick and Dirty Overview

Folks with longer memories will recall that there were a number of controversial episodes involving efforts to utilize acting officers during the first Trump administration. My favorite was when DHS Secretary Kirstjen Nielsen had to un-resign for a few days because her (forced?) resignation had accidentally elevated to Acting DHS Secretary someone other than President Trump’s pick. The real takeaway from almost all of those flashpoints was that the current statutory regime is remarkably capacious when it comes to the President’s power to fill most vacancies (including vacancies he creates) on a temporary basis. And although there were lots of allegations that President Trump transgressed these limits during his first term, the reality is that, with rare exceptions, his behavior really only underscored how broad the President’s statutory power already is.

Let’s start with the most important constitutional point: There are a number of executive branch offices (think Cabinet Secretaries and other agency heads) that are headed by “principal” officers—who, under Article II of the Constitution (as interpreted by the Supreme Court for nearly a century) must be nominated by the President and confirmed by the Senate. But the Court has held for even longer (since 1898) that someone who holds a principal office on a temporary basis is actually an “inferior” officer—meaning that Congress can provide for their (temporary) selection without requiring Senate confirmation. Thus, when the President wants to have a principal office occupied by someone who either can’t be confirmed by the Senate, or who can’t immediately be confirmed by the Senate, the Constitution gives Congress the ability to provide for a stopgap.

Complicating things, Congress has provided a mix of overlapping (and, at times, inconsistent) statutory authorities for how to temporarily fill vacancies—and who succeeds whom when vacancies occur. A handful of agencies have exclusive, agency-specific succession statutes. When a vacancy arises in one of the positions covered by those statutes, the President can follow only that statute. (This is why, for instance, Nielsen had to un-resign; DHS’s statute appears to be exclusive.) But most agencies either have non-exclusive succession statutes or no statute at all. And in those cases, the President can rely upon the Federal Vacancies Reform Act of 1998.

That statute identifies three pools of individuals on whom the President can draw when naming an “acting” holder of a vacant executive branch office. First, the President can name the “first assistant” to the permanent position (who usually, by default, becomes the acting officeholder). Some agency statutes specify which job is the “first assistant” (like Deputy Attorney General), which necessarily limits this pool to those currently holding that position or those who the President can lawfully put in that position. So where the “first assistant” position also requires Senate confirmation, this is a less viable way for the President to get whoever he wants.

But some agency statutes don’t designate the “first assistant,” or they do, but don’t require Senate confirmation for those permanently holding that job. This can lead to mischief. For example, when President Trump wanted to put Ken Cuccinelli in charge of the Bureau of Citizenship and Immigration Services, he had the Acting DHS Secretary, Chad Wolf, purport to create a new “principal deputy director” position at the Bureau, dub it the “first assistant” to the Director, and appoint Cuccinelli to the new the principal deputy position (through which Cuccinelli became the Acting Director). So the mischief possibilities in this pool are a bit position-specific.

The second pool is anyone currently serving in a position for which they were confirmed by the Senate. There are still a handful of first-term Trump appointees out there in the world, but, obviously, this is a limited pool, too. (Indeed, as noted below, the Constitution might be the source of the most significant limits in this category.)

The third pool is where things can get especially messy. In a nutshell, this category covers everyone at the same agency as the vacant position who (1) is at a GS-15 pay scale or higher; and (2) has been at that agency for at least 90 of the 365 days preceding the vacancy (my thanks to Anne Joseph O’Connell for this correction). This provision isn’t especially useful at the beginning of an administration—because of the 90-day-pre-vacancy service requirement. But it means that, as soon as one year into a presidency (assuming the vacancy arises on Day 1), the President can take folks who he placed in senior positions for at least 90 days of that year and elevate them to acting positions anywhere in their agency (for agencies without exclusive succession statutes). In other words, the way the FVRA is structured, the most opportunities for mischief come later in a President’s term—and not right at the beginning.

There are a bunch of caveats and exceptions to these rules. What I’ve laid out above, it should be stressed, involves a series of generalizations.¹ But the caveat that matters the most is the time limit the FVRA also imposes: those named acting officers under the FVRA are usually limited to serving in that role for 210 days—unless a nomination for the position is submitted during that period, in which case it can be extended.²

The brilliant Stanford law professor Anne Joseph O’Connell has written about all of this in far more detail—including the way in which, even at the end of that time period, the same individuals can attempt to wield comparable authority as they did while serving in an “acting” capacity, just without the title of “Acting Secretary,” “Acting Director,” etc. (Wait until you learn about a “Senior Official Performing the Duties of the [Office].”) But the upshot for present purposes is that the power to use and abuse “acting” officers is actually less of an issue right at the outset of a new administration—because of how the pools of potential acting appointees are limited. It could become a much bigger deal as soon as 91 days after a new President takes office—depending upon how aggressively the administration places folks in senior-but-not-Senate-confirmable positions..

Two Potential Appointments Clause Constraints

As the above discussion ought to suggest, Congress has given presidents far more power than they need when it comes to appointing “acting” officeholders. There are countless proposals out there for how to close some of the most troubling loopholes—without hamstringing the President’s power to fill vacancies, even on a temporary basis. I wrote one of them. Congress, in its wisdom, has thus far ignored them.

But there’s actually been surprisingly little litigation about constitutional limits on acting appointments. The Supreme Court has blessed the practice in the abstract—albeit 126 years ago. But this Court is a heck of a lot more formal when it comes to the Appointments Clause than any of its predecessors, especially when it comes to where and how it draws the line between principal and inferior officers. It’s therefore worth considering two contexts in which this Supreme Court may well push back if a future president goes too far in abusing the FVRA: the length of an acting appointment, and the requirement that the acting officeholder’s permanent job have at least something to do with their temporary one.

Duration and Inferiority

Taking the duration question first, as noted above, the FVRA expressly allows an individual who is appointed an acting officer under that statute to exercise the duties of that office for at least 210 days. And if you manipulate the statute enough, that can be stretched to cover multiple years. But Justice Thomas—who almost certainly has multiple friends on this point—has publicly expressed doubts about the constitutionality of such length for acting appointments. In a concurring opinion in 2017, Thomas argued in a revealing footnote that, the longer such a “temporary” appointment lasts, the less the Court’s old precedents treating acting principal officers as inferior officers can be sustained. In other words, at some point, the Senate has to have the power to confirm a temporary officeholder or else acting appointments could and would effectively undermine the Appointments Clause.

To be sure, in that case, NLRB v. SW General, Inc., the acting appointment had lasted for more than three years. But there are compelling arguments out there that exercising the duties of a position for much more than six months is effectively holding the office on a permanent basis. That’s not an issue where the permanent office doesn’t require Senate confirmation. But it could be decisive for those offices that do. If, for instance, Kash Patel somehow ends up as the Acting FBI Director for more than a year, at some point, the Supreme Court might well have something to say about the Appointments Clause implications.

Germaneness and Second Appointments

The other place where the Court has identified potential constitutional limits on temporary appointments is with regard to what the Court has called, also in an old precedent, “germaneness.” In a nutshell, the idea is that it would be an end-run around the Appointments Clause if Congress could provide for additional duties for a permanent officeholder that (1) were not germane to the office to which they were initially confirmed; and (2) did not require re-confirmation by the Senate. Applied in the vacancies context, the argument would be that the President could not rely upon someone’s permanent position as the statutory basis for giving them a higher acting office if the duties of the permanent job were not “germane” to the duties of the acting job.

In the few cases in which it has come up, the Court has construed “germaneness” generously. So this likely wouldn’t be a viable argument where, for instance, the President elevated someone from inside the same agency. But recall that the second pool of potential acting officers under the FVRA are those who have been confirmed by the Senate to any other position in the executive branch. It’s not hard to imagine this Court having a serious problem with the President being able to name, for instance, the Senate-confirmed Director of the National Oceanic and Atmospheric Administration to also serve as the Acting Attorney General solely because the Senate had confirmed that person to a different and unrelated office.

I don’t mean to overstate these points; there’s no question that, especially as the third FVRA pool expands after the President has been in office for more than three months, the FVRA would allow the President an enormous (and, to me, unjustifiable) amount of leeway in installing on a “temporary” basis officers he couldn’t get through even a Senate controlled by his own party. And some of those individuals might be able to wreak quite a bit of havoc in their positions long before their appointments run into constitutional trouble.

But this is a Court that has been repeatedly invested in ramping up the limits that the Appointments Clause imposes on both Congress and the President—entirely because of the view that the formal structure of the Appointments Clause imposes critical accountability constraints on the President. If President Trump or any future President were to try to completely sideline the Senate through an aggressive and limitless use of the FVRA, it’s not hard to imagine that even this Court would be in no hurry to let him.

After all, as Alexander Hamilton presciently warned in Federalist No. 76, allowing the President to pick and choose whoever he wants for executive branch positions without having to go through the Senate could lead to the “the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

As usual, he was right.

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SCOTUS Trivia: Temporary Assignments, Germaneness, and the Chief Justice

This may not count as “trivia,” but given the discussion of germaneness above, it’s an excuse to talk about one of the most significant quiet powers that the Chief Justice has—the power to “assign,” on a temporary basis, current Article III judges to other Article III courts. Indeed, Chief Justice Roberts has received at least some criticism for how he has assigned judges to, e.g., the Foreign Intelligence Surveillance Court—with some wondering why the Chief Justice, and not the President, has the power to fill those seats in the first place.

The answer dovetails with the temporariness and germaneness discussions above: Congress has provided a number of statutory authorities by which judges with existing Article III commissions to one court may temporarily exercise the duties of other courts—whether in individual cases, for entire sittings, or for fixed terms. And the person who “assigns” the judges with extant commissions to “temporarily” exercise the duties of other courts is the Chief Justice of the United States.

There is quite a lot that can and should be said about whether it makes sense for the Chief Justice to have quite so much power. One of my favorite academic explorations of this topic is a 2006 essay by Penn law professor (and former dean) Ted Ruger. But thanks to the jurisprudence described above, this is, for almost all intents and purposes, a policy debate. Congress’s constitutional power to let the Chief Justice control these assignments is, at least for the time being, settled by precedent—both because the judges are merely exercising the duties of these other courts, not holding a second commission; and because they’re doing so on a non-permanent basis.

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1. To take just one example, the FVRA doesn’t apply to a handful of specific federal offices, as set out in 5 U.S.C. § 3349c.

2. There are also special rules, under 5 U.S.C. § 3345(b), governing what happens if the person nominated is the one already serving as the acting officeholder—including when they can continue to serve as the acting officeholder, and when they can’t.