Recent presidential reliance on acting agency officials, including an acting Attorney General, acting Secretaries of Defense, and an acting Secretary of Homeland Security, as well as numerous below-Cabinet officials, has drawn significant criticism from scholars, the media, and members of Congress. They worry that the President may be pursuing illegitimate goals and seeking to bypass the critical Senate role under the Appointments Clause. But Congress has authorized—and Presidents have called upon—such individuals from the early years of the Republic to the present. Meanwhile, neither formalist approaches to the constitutional issue, which seem to permit no flexibility, nor current Supreme Court doctrine, which contributes few bounds on acting officials, satisfactorily answer how much latitude a president should have to work around Senate confirmation.
After summarizing different methods Presidents have used to rely on unconfirmed officials to perform the work of Senate-confirmed offices, this Article advocates a functional approach to the constitutional question. A functional approach to acting officials possesses the twin virtues of pragmatism and constraint. Presidents have legitimate needs to rely briefly on unconfirmed individuals, but functional considerations, including the need to ensure the integrity, competence, and democratic responsiveness of senior agency officials, weigh against long-term reliance on such individuals. The Article concludes that because the Federal Vacancies Reform Act of 1998 authorizes overly lengthy service, the Act, together with other practices, is constitutionally problematic. The Article concludes with reform recommendations.
Mendelson, Nina A. "The Permissibility of Acting Officials: May the President Work Around Senate Confirmation?" Administrative Law Review 72, no. 4 (2020): 533-606.