The Acting Officials Who Run Agencies Without the Senate's Consent

Somewhere in Washington there is a person with a nameplate that says "Acting," and that person is signing things that bind you. Nobody elected the acting official. The Senate never voted on the acting official. And in some offices the "acting" has lasted so long that it has started to look like a middle name.

Folks, this is not a scandal of one party. It is a habit of both, and habits are the quiet way a republic loses its structure. Let me walk you through the text, the statute, the two cases the Supreme Court has decided on the subject, and why a conservative who cares about the Constitution should be bothered no matter whose President is doing the stretching.

What the Constitution actually says

Start where every honest argument about power starts, with the words. Article II, Section 2, Clause 2 provides that the President

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Read that slowly, because there are three parts to it. First, the default: principal officers are nominated by the President and appointed with the advice and consent of the Senate. Second, the offices are "established by Law," which means Congress creates them, not the executive. Third, a pressure valve: Congress may let the President alone, the courts, or department heads appoint "inferior" officers.

Why did the Framers insist on the Senate's role for the top jobs? Because they had lived under a King who filled every office with his own people. Alexander Hamilton explained the design in Federalist 76 and Federalist 77: the President would nominate, so that responsibility for a choice would rest on one identifiable person, and the Senate would check the choice, so that favoritism and unfit characters would have a harder road. The check does not have to be exercised often to work. Its existence changes whom a President bothers to nominate.

Now the problem the Framers could not leave unsolved. Offices fall vacant. A Secretary resigns, an Administrator dies, a commissioner's term expires. Government cannot stop. Who runs the shop between the departure and the next confirmed officer?

The Constitution answers part of that question in Clause 3 of the same section: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." That is the recess appointment. In 1789 the Senate met for a few months a year, and travel took weeks. A long recess was a real gap, and the clause was a practical fix. It is a temporary commission, and it expires at the end of the Senate's next session. The Framers wanted the Senate's check restored on a schedule, not bypassed forever.

Everything else, the whole modern law of "acting" officials, is statute. And statute is where the stretching happens.

The Vacancies Act, explained like a family would need it

Congress has legislated about temporary officers for more than two centuries. The current law is the Federal Vacancies Reform Act of 1998, codified at 5 U.S.C. sections 3345 to 3349d. Here is how it works, in plain steps.

1. Who qualifies. When an officer whose job requires Senate confirmation (the statute calls these "PAS" positions, for "presidential appointment with Senate confirmation") dies, resigns, or cannot perform the duties, the first assistant to that office automatically becomes the acting officer. That is the default.
2. The President's alternatives. The President may instead designate someone who already holds a different Senate-confirmed position, or a senior employee of the same agency who has served at least 90 days in the preceding year at a pay grade equivalent to GS-15 or higher.
3. The clock. An acting officer may serve for 210 days from the date of the vacancy. For vacancies that arise in the first 60 days after a transition inauguration, the Act delays the start of the 210-day clock by 90 days, which works out to roughly 300 days, since a new President cannot nominate everyone on day one.
4. The clock pauses. While a first or second nomination for the office is pending in the Senate, the acting service continues. If the Senate rejects, the President withdraws, or the nomination is returned, a fresh 210-day period begins. The same is true after a second nomination fails.
5. The penalty. Section 3348 says that an action taken by someone not serving in compliance with the Act has "no force or effect" if the function is one that only the confirmed officer is required by law or regulation to perform, and that such an action cannot be ratified later.

That last provision is the teeth of the statute. Congress wrote the law with an enforcement mechanism: if the President gets around the Senate, the paper he signs is void. Whether that mechanism is applied as vigorously as Congress intended is another matter, and we will get there.

Notice what this structure reveals. The first-assistant rule is not an accident. It is a designed bridge to carry the agency to the next nomination. The time limits are the answer to a question the Framers would recognize: how long can the executive operate on its own say-so before the people's Senate has to weigh in? Two hundred ten days, with extensions tied to real nominations, is Congress's answer. An acting official who has served for years, with no nomination pending, is not the bridge anymore. He is the island.

Why this matters to a family

You may be thinking this is a seminar topic. It is not. An agency head decides which complaints are pursued, which rules are proposed, which permits move and which sit. The person with the authority to sign has, under the Constitution, been chosen in public, questioned in public, and voted on in public. That process produces the one thing a free people should insist on: a name attached to a decision, a person who can be asked questions by an elected body. An acting official who was never vetted is exactly as powerful in your life as a confirmed one, but without the ordeal that makes the power legitimate.

I would put it this way. Confirmation is not a courtesy to the Senate. It is a right of the people, exercised through their representatives, to look the powerful in the eye before the powerful are handed the pen.

Recess appointments and NLRB v. Noel Canning (2014)

For two centuries the recess appointment was the executive's usual workaround. If the Senate would not confirm someone, the President could wait until the Senate left town and install the person alone. Presidents of both parties did it. The Senate responded in the modern era with a tool of its own: holding pro forma sessions, short sessions every few days at which no business is conducted, so that the Senate is never formally in recess long enough for the clause to apply.

The collision came in January 2012. President Obama announced three appointments to the National Labor Relations Board at a time when the Senate was holding pro forma sessions every Tuesday and Friday. The administration took the position that the Senate was effectively in recess anyway, and the appointments were valid. Noel Canning, a Pepsi-Cola distributor that had been ordered by the Board to sign a labor agreement it refused to put in writing, challenged the Board's authority, arguing that the Board lacked a quorum of validly appointed members.

The Supreme Court decided NLRB v. Noel Canning in 2014, and all nine Justices agreed that the appointments were invalid. They disagreed on why, and the majority opinion drew five votes. Justice Breyer wrote for the majority and held three things:

• The phrase "the Recess of the Senate" includes intra-session recesses, those within a session, and not only the break between sessions.
• The phrase "vacancies that may happen" includes vacancies that existed before the recess began, not only ones that arose during it.
• A recess of less than ten days is presumptively too short to trigger the power, and the Senate's pro forma sessions count as sessions, because the Senate says they are and its rules govern its own proceedings.

Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, concurred in the judgment but wrote with the more disciplined constitutional reading: the Clause covers only the recess between sessions and only vacancies that arise during it. His point is the one a constitutionalist will recognize, that a clause written to solve a transportation problem in 1787 should not be stretched to solve a political problem in 2012.

Here is the lesson I draw. Noel Canning did two things. It rejected the use of the recess power to dodge a Senate that was in session, so it preserved the Senate's ability to say "no." And it did so by respecting the Senate's own judgment of when it is in session, which is a structural protection for the legislative branch. That is a good result. But notice what happened next: the practical effect of the case was to push Presidents of both parties away from the Constitution's own emergency valve and toward the statutory workaround, acting officials. When one door closes, the executive finds the next one.

NLRB v. SW General (2017) and the acting officer who was also the nominee

The second case concerns a quieter abuse. The National Labor Relations Board has a General Counsel, a Senate-confirmed officer who decides which unfair-labor-practice complaints to prosecute. When the office went vacant in 2010, the President named Lafe Solomon, a lawyer at the Board, as acting General Counsel, and then in January 2011 nominated him for the permanent job. Solomon, while his own nomination was pending, kept running the office and authorized a complaint against a company called SW General.

The question reached the Supreme Court as NLRB v. SW General, Inc. (2017): may a person serve as acting officer while nominated for the same office? The Vacancies Act has a provision, section 3345(b)(1), that bars a person from serving as acting officer if he is nominated for the office, with an exception for someone who served as the first assistant for at least 90 days in the year before the vacancy. The Board argued the bar applied only to people who became acting officers through the President's designation, not to first assistants who step in automatically.

The Court, 6 to 2, with Chief Justice Roberts writing, rejected that reading. The text applies to any acting officer in the covered categories, first assistants included, subject to the 90-day exception. The incentives the Act wants to preserve are plain: a President should not be able to install a favorite in an acting role, nominate him, and let the Senate's deliberation be mooted by the fact that the nominee is already running the agency. Justice Sotomayor, joined by Justice Ginsburg, dissented. Justice Thomas joined the majority but wrote separately to argue that the Appointments Clause itself likely barred the arrangement.

The result is as clean as these things get. The statute was written to prevent exactly this pairing of acting service and nomination, and the Court read the statute the way the words are written. Congress had been specific, and the Court honored the specificity. If you want a model of how a court should treat a statute that polices the executive, it is a good one.

Both parties stretch, and the pattern is old

Let me be fair to the other side before I press the point, because the fair statement is what makes the argument stronger.

The steelman goes like this. Government must not stop. An agency without a head is an agency in which statutory duties go undone, and the Senate is, in modern practice, slow. Nominations languish for months, sometimes because of genuine disagreement, sometimes because a single Senator places a hold for reasons unrelated to the nominee. Under those conditions the President is entitled to some acting arrangement, and Congress itself wrote the Vacancies Act to give him one. Moreover, an acting official is often a career professional of long experience, perhaps more qualified than a political appointee would be. And finally, the argument goes, every President does this, so the practice is just the system's operating condition.

Some of that is right and I accept it. The Vacancies Act is legitimate. Acting service is a normal and sometimes admirable tool. A first assistant who steps in for ninety days after a resignation is not a threat to the republic. The Senate's own delay is real, and Senators of both parties have used procedure to stall nominees they had no intention of voting against.

But the steelman proves less than its defenders think, for four reasons.

1. The statute has limits, and the limits are the point. The Act sets 210 days, not 2,100. A defense of acting service that ignores the clock is a defense of something the statute does not say.
2. "Everyone does it" is a description, not a justification. If both parties stretch the law, that tells us the incentive is structural, and structure is what the Constitution exists to manage. We do not excuse a pattern because it is bipartisan. We recognize that the pattern is why the rule matters.
3. Senate delay is a reason to reform Senate procedure, not to bypass the Senate. The remedy for a slow check is a faster check, by rule changes within the Senate, not by working around the Appointments Clause.
4. The acting official's own interests change. An acting officer who hopes to be nominated has an incentive to please the White House. One who has no such hope may be freer. Either way, the person has not been through the public vetting that confirms fitness, and the public has no vote on the person through its representatives.

Examples exist on both sides of the aisle. The Clinton administration's use of acting service for a civil rights post after the Senate would not confirm the nominee drew objections from Republicans. The Obama administration's NLRB recess appointments produced Noel Canning. The first Trump administration's use of acting leaders at the Department of Homeland Security drew a finding from the Government Accountability Office in 2020, which said the designations of the acting Secretary and his deputy were invalid, and a federal court later ruled that the acting Secretary had not been lawfully serving. I list these not to score points for a team but because a principle that only binds your opponents is not a principle. The rule is the same for every President: the Senate's consent is not optional equipment.

The numbered case against government by "Acting"

Here is the argument in order, the way a lawyer would put it to a court.

1. The Constitution makes consent the rule for principal officers. Article II, Section 2, Clause 2 says so in plain words, and Hamilton defended the design as a check on favoritism and a source of accountability.
2. The exceptions are written, and limited. Congress may vest inferior offices elsewhere by law. The President may fill recess vacancies on commissions that expire at the end of the next session. No clause lets an executive run a Senate-confirmed office indefinitely on his own authority.
3. Congress's own time limits express the design. The Vacancies Act's 210 days and its pauses tied to real nominations are a statutory reading of how long the bridge may be.
4. The Court has enforced the limits at the edges. Noel Canning refused to let pro forma sessions be ignored, and SW General refused to let an acting officer run the office while carrying his own nomination.
5. The remedy exists and should be used. Section 3348 makes noncompliant actions void in the covered cases. A Congress that is serious about its prerogatives reads the Government Accountability Office's violation letters and acts on them.

Notice that none of these points depends on who the President is. That is what makes it an argument for the rule of law and not an argument for a party.

What the framers would have said about the pattern

Federalist 51 explains why the separation of powers needs more than parchment: "Ambition must be made to counteract ambition." The Senate's ambition, in the appointments context, is to keep its place at the table. The President's is to staff his government. When the Senate stops defending its prerogative, because it is tired, because it is divided, or because its own party holds the White House, the check fails by neglect. That is why the same Congress that says nothing about acting officials under its own party's President suddenly discovers the Vacancies Act when the other party takes over. A constitutional principle that is discovered only when it is politically convenient is not holding anything up.

I would ask conservatives, specifically, to remember what we say about the administrative state. We say, rightly, that too much of government is run by people the voters cannot reach. We say that agencies exercise legislative, executive and judicial power with too little accountability. An agency run for years by an acting official, with no confirmation hearing and no recorded vote, is the same problem in its purest form: concentrated power with no public name attached. The consistent position is not "our acting officials good, theirs bad." It is "no one should run a Senate-confirmed office on a nameplate."

There is a practical corollary for those of us who want the Senate to do its work. A Senate that takes six months to process a nominee and then complains about acting officials has helped create the pressure. Conservatives who want the Vacancies Act respected have an interest in a Senate that votes: more nominations considered, fewer holds used as personal vetoes, clearer deadlines. The two goals go together.

Questions worth putting to your representative

You do not need a law degree to hold this system to account. Three questions are fair, and every office of a Senator or Representative can answer them.

• Which Senate-confirmed positions in the agencies you oversee are currently held by an acting official, and for how long has each vacancy lasted?
• Has the Government Accountability Office issued a Vacancies Act violation letter about any of them, and what has the committee done about it?
• Is a nomination pending for each vacant post, and if not, why not?

The Vacancies Act has a reporting requirement: agencies must report vacancies and acting officers to Congress and to the Comptroller General, and the Government Accountability Office keeps a running record. That information is public. Read it the way you would read a school board's budget: not to be told what to think, but to see whether the people entrusted with power are following the rules that bind them.

For related reading, see The Administrative Procedure Act of 1946 Was a Truce, and It Still Shows, Humphrey's Executor Created a Fourth Branch the Constitution Never Mentions, Schedule F Is Really a Fight Over Who Answers to the Voters, The Nondelegation Doctrine Says Congress Cannot Hand Its Job to Someone Else and Madison Called It the Very Definition of Tyranny, and Agencies Hold All Three.

The case in brief

1. The Appointments Clause makes Senate consent the rule for the top officers of government, because the Founders wanted every great power to carry a name and an accountable process.
2. The Vacancies Act of 1998 allows temporary acting service as a bridge, with defined eligible officials and a clock of 210 days, paused only by genuine nominations.
3. NLRB v. Noel Canning (2014) held the recess power cannot be used while the Senate holds sessions, and NLRB v. SW General (2017) held an acting officer cannot serve while nominated unless he fits the statute's exception.
4. Presidents of both parties have stretched acting service, and a rule that only binds the other side is not a rule, so conservatives should hold our own side to the clock.
5. The cure is a Senate that votes on nominees promptly and a Congress that uses the Act's enforcement and reporting provisions.

What you can do: Read Article II, Section 2 at the Constitution page, then call your Senator's office and ask which Senate-confirmed posts at the agencies they oversee are held by acting officials and for how long.