Squaring a Circle: Advice and Consent, Faithful Execution, and the Vacancies Reform Act

Successive presidents have interpreted the FederalVacancies Reform Act of 1998 to authorize the appointment ofprincipal officers on a temporary basis. Despite serving in amere “acting” capacity and without the Senate’s approval, theseacting principal officers nevertheless wield the full powers ofthe office. The best argument in favor of this constitutionallydubious practice is that an acting principal officer is not reallya “principal officer” under the U.S. Constitution because sheonly serves for a limited period. Although not facially specious,this claim elides the most important legal fact: an actingprincipal officer may exercise the full powers of the office, justlike a Senate-confirmed cabinet officer.

This approach broadlyvindicates Article II’s Take Care Clause, which requires thatthe President have the assistance needed to ensure that “thelaws be faithfully executed.” Unfortunately, this approacheffectively reads the Appointments Clause out of theConstitution. For a person to hold a principal office, the Appointments Clause expressly requires that the President firstseek and obtain the “advice and consent” of the Senate. Withoutthe Senate’s approval, a person cannot constitutionally hold aprincipal office (i.e., head a cabinet-level department oragency).This Article proposes a better approach that would vindicateboth the Take Care and Appointments Clauses: federal courtsshould limit the scope of authority acting principal officers mayexercise to the performance of essential and necessary tasks—inother words, an acting principal officer must be a caretaker inboth form and substance. Federal courts should not allowacting principal officers to undertake new discretionaryprogrammatic initiatives.

Moreover, if an acting principalofficer attempts to wield the full powers of the office, federalcourts should nullify, as ultra vires, discretionarypolicymaking initiatives that are not clearly essential andnecessary to the performance of core executive functions. Thisapproach would render acting principal officers more plausibly“inferior” under the Appointments Clause, would make themsubordinate to a supervisor other than the President (Article IIIcourts), and would create a powerful incentive for the Presidentto nominate and obtain the Senate’s approval of a principalofficer who could constitutionally exercise the full powers of theoffice.