Reforming Federal Vacancies

The Federal Vacancies Reform Act (FVRA) is a powerful but complicated and overlooked statute. At its best, it is a pragmatic mechanism designed to fill vacancies in executive agencies. But the complicated nature of the FVRA has paved the way for Presidents to manipulate its numerous loopholes in effect bypassing Senate approval when appointing federal officers. These loopholes raise several issues that threaten the existence of the FVRA—including invalidation under the Constitution.

Further, regulated entities and citizens should also be concerned about invalid rule promulgation and enforcement actions, increased procurement costs, lack of agency transparency, increased risk of agency capture, and lack of judicial remedies. But invalidation of the FVRA would create chaos and disruption—negating a useful and necessary mechanism—meant to keep administrative agencies running when vacancies occur. Thus, this Note argues that these loopholes should be closed to save the FVRA from invalidation and offers potential legislative solutions to accomplish this task.