The Vacancies Act: A Legal Overview (CRS Report for Congress)
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| Release Date |
Revised Aug. 1, 2022 |
| Report Number |
R44997 |
| Report Type |
Report |
| Authors |
Brannon, Valerie C. |
| Source Agency |
Congressional Research Service |
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Summary:
The Federal Vacancies Reform Act of 1998 (Vacancies Act) generally provides the exclusive
means by which a government employee may temporarily perform the nondelegable functions
and duties of a vacant advice and consent position in an executive agency. Unless an acting
officer is serving in compliance with the Vacancies Act, any attempt to perform the functions and
duties of that office will have no force or effect.
The Vacancies Act limits a government employee’s ability to serve as an acting officer in two
primary ways. First, the Vacancies Act provides that only three classes of people may serve
temporarily in an advice and consent position. As a default rule, the first assistant to a position
automatically becomes the acting officer. Alternatively, the President may direct either a senior
official of that agency or a person serving in any other advice and consent position to serve as the
acting officer. Second, the Vacancies Act limits the length of time a person may serve as acting
officer: a person may serve either (1) for a limited time period running from the date that the
vacancy occurred or (2) during the pendency of a nomination to that office. The Vacancies Act is
primarily enforced when a person who has been injured by an agency’s action challenges the
action based on the theory that it was taken in contravention of the Act.
There are, however, a few key limitations on the scope of the Vacancies Act. Notably, the
Vacancies Act governs the ability of a person to perform only those functions and duties of an
office that are nondelegable. Unless a statute or regulation expressly specifies that a duty must be
performed by the absent officer, that duty may be delegated to another government employee. In
other words, delegable job responsibilities are outside the purview of the Vacancies Act. In
addition, if another statute expressly authorizes acting service, that other statute may render the
Vacancies Act nonexclusive, or possibly even inapplicable.
This report first describes how the Vacancies Act operates and outlines its scope, identifying
when the Vacancies Act applies to a given office, how it is enforced, and which offices are
exempt from its provisions. The report then explains who may serve as an acting officer and for
how long, focusing on the limitations the Vacancies Act places on acting service. Finally, the
report turns to issues of particular relevance to Congress, primarily highlighting the Vacancies
Act’s enforcement mechanisms.
