Washington — As President-elect Donald Trump prepares to begin his second term in the White House in a few weeks, he has suggested he would use it. holiday appointments To bypass the Senate confirmation process and immediately install his picks into key positions in the federal government.
This demand has been met with opposition from some Republicans, but there is another way in which Trump can place people loyal to him into high-ranking positions without Senate approval, even if temporarily: a 25-year-old The federal law that sets the rules the President must use to fill vacancies that require Senate confirmation.
Enacted in 1998, the Federal Vacancies Reform Act, or Vacancies Act, limits how many government employees can temporarily fill approximately 1,300 federal offices that require nomination by the President and approval by the Senate.
This playbook would not be new to Trump, who in his first term installed “acting” leaders at various federal agencies and sub-agencies, including the Departments of Defense and Interior and the Environmental Protection Agency.
Some of the presidential nominees may face headwinds in the GOP-led Senate, such as his choice of Pete Hegseth to lead the Pentagon and Tulsi Gabbard, whom he plans to appoint as director of national intelligence. Have been. The Vacancies Act could become a key tool for Trump to ensure that agencies have staff loyal to him and his agenda.
“Congress has made policy choices for about 1,300 positions that still require Senate consent,” said Thomas Berry, a legal scholar at the Cato Institute. “But what we have now is that at any given time, half or more than half of them are not filled by Senate-confirmed people, not because Congress has chosen that policy option, but because the Vacancies Act can be pushed to the limit and perhaps even beyond its limits, and it is so easy that acting officers or deputies act essentially in exactly the same way if they Had he been confirmed by the Senate.”
How does the Vacancies Act work?
Under the Vacancies Act, there are three categories of federal employees who may temporarily fill a position covered by law:
- “First Assistant” or Deputy of the vacant office
- Another administration official who has already won Senate confirmation
- An agency employee who has worked there for at least 90 days in the year preceding the vacancy and is in the highest level of the civil service pay scale
The Vacancies Act also sets a time limit on how long an acting official may serve, allowing them to fill the position for 300 days if installed at the beginning of a new administration. Leaders pro tempore promoted after the term begins can remain in their role for 210 days, but that limit 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 after his inauguration in January 2017, Berry said, he chose non-controversial, longtime civil servants to serve in acting roles while the confirmation process was underway. He may do so again in the first days or weeks after returning to the White House on January 20.
But Berry said the landscape will change as Trump's second term progresses. Ultimately, the lower-level positions and highest pay grades will be occupied by Senate-confirmed officials who have served in their agencies for more than 90 days. Those officers can then be selected for officiating posts.
“The vacancies that people should be most concerned about, the vacancies where Trump has a lot of flexibility, are the vacancies that happen in the middle of the term, not on day one,” he said.
Presidents of both parties have appointed acting officials to high-ranking positions in their administrations. But with 30 acting secretaries of state, Trump used more temporary leaders than he confirmed during his first four years in the White House. 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 may depend on his legislative priorities. With a Republican-controlled Congress, the president-elect and GOP lawmakers have said they plan to focus on extending Trump's signature tax reform law, parts of which are set to expire next year, as well as border security. Too. And if a member of the Supreme Court retires, filling that seat will also be a key priority while Republicans hold the Senate majority.
“I think, given the threat of using the recess appointments clause, the Senate party leadership is going to work closely with the White House to quickly confirm the Cabinet or a majority through the traditional process, so then The question is, what else does the Senate prioritize?” O'Connell said. “The Vacancies Act provides the second best route for filling [lower-level] Agency position.”
Since winning the White House in November, Trump has made a plan lots of personnel selectionFrom those who would serve in his Cabinet if nominated and confirmed by the Senate, to candidates for ambassadorial positions to senior White House staffers who do not require Senate approval. One of those candidates, former Representative Matt Gaetz of Florida, was chosen by the President-elect for Attorney General. took myself out of consideration After coming under renewed scrutiny for alleged sexual misconduct and illegal drug use, which he denied.
While most of the attention is on Trump's choices for the most senior roles in his new administration, leaders of sub-agencies may be filled through the Vacancies Act or through delegation of duties to subordinates.
“This strategy can be done in these very influential positions that are right below the secretary level, and that's why you often see the limits of the Vacancies Act being pushed at that level,” Berry said.