# The Vacancies Act: A Legal Overview > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR44997 ## Record - **Collection:** Congressional research report - **Document type:** Reports - **Published:** April 29, 2026 - **Citation:** R44997 ## Text The Vacancies Act: A Legal Overview Updated April 29, 2026 Congressional Research Service https://crsreports.congress.gov R44997 SUMMARY The Vacancies Act: A Legal Overview The Federal Vacancies Reform Act of 1998 (Vacancies Act or Act, 5 U.S.C. §§ 3345–3349e) generally provides the exclusive means for a government employee to perform temporarily the functions and duties of a vacant presidentially appointed, Senate-confirmed position in an executive agency, also known as an advice-and-consent position. R44997 April 29, 2026 Valerie C. Brannon Legislative Attorney The Vacancies Act both authorizes and limits acting service in two primary ways. First, the Vacancies Act provides that three classes of people may serve temporarily in an advice-andconsent position. As a default rule, the first assistant to a position automatically becomes the acting officer. Alternatively, the President may direct either certain senior officials of the agency or any Senate-confirmed official to serve as the acting officer. Second, the Vacancies Act governs the length of time a person may serve as acting officer: a person may serve (1) for a limited time period running from the date that the vacancy occurred; and (2) during the pendency of a first or second nomination to that office, with extensions if the nomination is rejected, withdrawn, or returned. The Vacancies Act stipulates that unless a covered acting officer is serving in compliance with the law, any attempt to perform the functions and duties of that office will have no force or effect. Noncompliant actions are void and may not be ratified. The Vacancies Act is primarily enforced when a person injured by an agency action brings a lawsuit arguing that an acting official violated the Act and therefore that the action is void. While the Vacancies Act states that it is generally the exclusive means to authorize acting service, courts have interpreted the law to allow at least two other means of temporary service. First, on its face, the Vacancies Act is exclusive unless another statute expressly authorizes acting service. An agency-specific statute governing acting service may render the Vacancies Act nonexclusive, or possibly even inapplicable. Second, some courts have interpreted the Vacancies Act only to govern the performance of the functions and duties of an office that are nondelegable. E.g., Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1337 (Fed. Cir. 2022). Unless a statute or regulation expressly specifies that a duty must be performed by the absent officer, that duty may likely be delegated to another government employee. Under this interpretation, an agency may delegate many, if not all, of the duties of a vacant office to another official without violating the Vacancies Act. At the same time, some courts have invalidated delegations that they view as an end-run around the Vacancies Act, holding that the Act prohibits using general vesting-and-delegation statutes to delegate all of a vacant office’s functions in a way that is indistinguishable from acting service. E.g., United States v. Giraud, 160 F.4th 390, 403 (3d Cir. 2025). The Appointments Clause of the U.S. Constitution may also limit acting service in some circumstances. The Appointments Clause requires “Officers of the United States” to be appointed through specific processes. U.S. CONST. art. II, § 2, cl. 2. In particular, so-called “principal officers” such as the heads of departments may be appointed only through Senate confirmation, and inferior officers must be appointed by Senate confirmation, the President, a department head, or a court. Acting service may raise constitutional concerns if it allows an official to perform the duties of an “Officer of the United States” absent a proper appointment. While the Supreme Court approved of certain acting service “under special and temporary conditions” in United States v. Eaton, 169 U.S. 331, 343 (1898), open questions remain about the constitutionality of service under the modern Vacancies Act. Congressional Research Service The Vacancies Act: A Legal Overview Contents Background ..................................................................................................................................... 1 Scope and Operation of the Vacancies Act ...................................................................................... 2 Which Offices?.......................................................................................................................... 4 What Are the “Functions and Duties” of an Office? ................................................................. 7 Vacancies Act Limitations on Acting Service................................................................................ 10 Who Can Serve as an Acting Officer?......................................................................................11 For How Long? ....................................................................................................................... 14 Consequences of Violating the Vacancies Act ............................................................................... 17 Broader Legal Context .................................................................................................................. 21 Exclusivity of the Vacancies Act ............................................................................................. 21 Delegation of Duties ............................................................................................................... 26 Appointments Clause Challenges............................................................................................ 32 Figures Figure 1. Vacancies Act Time Periods ........................................................................................... 15 Contacts Author Information........................................................................................................................ 37 Congressional Research Service The Vacancies Act: A Legal Overview Background The Appointments Clause of the Constitution generally requires “Officers of the United States”— high-level officials—to be appointed through nomination by the President, with the advice and consent of the Senate.1 Appointment to these advice-and-consent positions can be a lengthy process, and officers sometimes unexpectedly vacate offices, whether by resignation, death, or other absence, leaving before a successor has been chosen.2 In particular, there are often many vacancies during a presidential transition, when a new President seeks to install new officers in important executive positions.3 In these instances, the executive branch may seek to fill these vacancies temporarily with individuals who were not appointed to the vacant office.4 There are several sources of authority that might permit an official to perform the functions of a vacant office.5 Authority might come from a statute clarifying who steps in during a vacancy or from an agency delegation of authority. At times, the President has also claimed an inherent authority to appoint acting officers.6 So far, the courts to consider the merits of that claim have rejected the idea that this inherent authority exists, but appeals are ongoing.7 1 U.S. CONST. art. II, § 2, cl. 2. Specifically, principal officers must be appointed through Senate confirmation, while Congress may provide for inferior officers to be appointed by the President, a department head, or a court of law. Id. If the vacancy exists “during the Recess of the Senate,” the Constitution also allows the President to appoint an officer to serve until “the End of [the Senate’s] next Session.” Id. art. II, § 2, cl. 3; see CRS In Focus IF12946, Recess Appointments: A Legal Overview, by Andreas Kuersten and Clay Wild (2025); Libr. of Cong., Overview of Recess Appointments Clause, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artII-S2-C31/ALDE_00001144/ (last visited Apr. 29, 2026). 2 See generally Anne Joseph O’Connell, Actings, 120 COLUM. L. REV. 613, 638–48 (2020) (summarizing previous empirical research on executive branch vacancies and providing new data on Cabinet-level vacancies); CRS Report R44083, Appointment and Confirmation of Executive Branch Leadership: An Overview, by Henry B. Hogue and Maeve P. Carey (2021). 3 See, e.g., CRS In Focus IF12721, Presidential Transitions: Executive Branch Political Appointment Status, by Henry B. Hogue (2024). 4 See generally, e.g., Morgan v. United States, 298 U.S. 468, 479 (1936) (“In the course of administrative routine, the disposition of official matters by an Acting Secretary is frequently necessary, and the integrity of administration demands that credit be given to his action in that capacity.”). 5 See generally CRS Report RS21412, Temporarily Filling Presidentially Appointed, Senate-Confirmed Positions, by Henry B. Hogue (2024). 6 E.g., Temporary Presidential Designation of Acting Board Members of the Inter-American Foundation and the United States African Development Foundation, 49 Op. O.L.C. (Mar. 14, 2025) (slip op. at 4). 7 Aviel v. Gor, 780 F. Supp. 3d 1, 12 (D.D.C. 2025), appeal dismissed, No. 25-5105, 2025 WL 2553305 (D.C. Cir. Sep. 2, 2025); Aviel, No. 25-5105, 2025 WL 1600446, at *1 (D.C. Cir. June 5, 2026) (mem.) (Katsas, J., concurring) (concluding the government’s contention of inherent authority “is unlikely to succeed”), denying stay pending appeal, 780 F. Supp. 3d 1 (D.D.C. 2025); Rural Dev. Innovations Ltd. v. Marocco, No. 25-1631, 2025 WL 1807818, at *5 (D.D.C. July 1, 2025), vacated on reconsideration, No. 25-1631, 2025 WL 4083332 (D.D.C. Nov. 19, 2025) (narrowing scope of injunction but not otherwise questioning the merits of the prior ruling); Perlmutter v. Blanche, No. 25-5285, 2025 WL 2627965, at *5 n.1 (D.C. Cir. Sep. 10, 2025) (mem.) (Pan, J., concurring) (disagreeing that Article II grants the President “unrestricted authority to designate an Acting Librarian”), appeal filed, No. 25A478 (U.S. Oct. 27, 2025); cf. Williams v. Phillips, 482 F.2d 669, 670–71 (D.C. Cir. 1973) (saying even if the court agreed that this implied power exists, it “would not establish that the President was entitled, for a period of four and a half months . . ., to continue the designation of Phillips as acting director without any nomination submitted for Senate consideration”). In a later order denying and granting in part the parties’ motions for summary judgment, the Rural Development Innovations court denied the plaintiff’s motion for reconsideration of its July 1 analysis. No. 25-1631, 2026 WL 710260, at *3 (D.D.C. Mar. 13, 2026) (seeing “no reason to revisit” the analysis). Congressional Research Service 1 The Vacancies Act: A Legal Overview Usually, where a statute authorizes acting service, courts have said that “an acting officer is vested with the same authority that could be exercised by the officer for whom he acts.”8 In addition to position-specific statutes authorizing acting service, Congress has enacted broader statutes generally authorizing individuals to perform temporarily the functions of a vacant office.9 The most recent statute generally authorizing government officers or employees to serve as acting officers for vacant advice-and-consent positions is the Federal Vacancies Reform Act of 1998 (Vacancies Act).10 The Vacancies Act allows certain classes of employees to serve as acting officers for advice-and-consent positions11 and specifies that they may serve for a limited period.12 If a covered acting officer’s service is in accordance with the Vacancies Act, any attempt by that officer to perform a “function or duty” of a vacant office has “no force or effect.”13 This report first describes the Vacancies Act’s scope and operation, identifying when the Vacancies Act applies to a given office and which duties are covered by the Act. The report then explains who may serve as an acting officer and for how long. Next, the report discusses how the Vacancies Act is enforced. Finally, the report discusses how other federal laws may limit the Act’s reach. Specifically, the report concludes by examining the interaction of the Vacancies Act with agency-specific statutes, the ability to delegate the duties of a vacant office, and constitutional Appointments Clause considerations. Scope and Operation of the Vacancies Act The Vacancies Act generally provides “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency . . . for which appointment is required to be made by the President, by and with the advice and consent of the Senate.”14 The Vacancies Act applies if an officer serving in an advice-and-consent position in the executive branch “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”15 Some have suggested that the Vacancies Act may not apply in the case of a presidential removal from office16 or a temporary rather than permanent absence,17 but the phrase “unable to 8 In re Grand Jury Investigation, 916 F.3d 1047, 1055 (D.C. Cir. 2019); see also Fortin v. Comm’r of Soc. Sec., 112 F.4th 411, 427 (6th Cir. 2024) (holding that an inferior officer acting as an agency head “temporarily had all the power of the vacant . . . position”); United States v. Pellicci, 504 F.2d 1106, 1107 (1st Cir. 1974) (“There is no basis for concluding that one ‘acting’ as Attorney General has fewer than all the powers of that office.”). Cf. Nw. Immigrant Rts. Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 69 (D.D.C. 2020) (holding that a statute authorizing “the Secretary” of Homeland Security to designate an order of succession “to serve as Acting Secretary” did not authorize an acting Secretary to change the order of succession). 9 See, e.g., Doolin Sec. Sav. Bank v. Off. of Thrift Supervision (Doolin I), 139 F.3d 203, 209–10 (D.C. Cir. 1998) (describing vacancies legislation dating back to 1792). 10 5 U.S.C. §§ 3345–3349e. 11 Id. § 3345. 12 Id. §§ 3346, 3349a. 13 Id. § 3348(d). 14 Id. § 3347(a). 15 Id. §§ 3345, 3348. 16 See, e.g., United States v. Valencia, No. 17-CR-882, 2018 WL 6182755, at *4 (W.D. Tex. Nov. 27, 2018); Ben Miller-Gootnick, Boundaries of the Federal Vacancies Act, 56 HARV. J. ON LEGIS. 459, 460 (2019); cf. Rop v. Fed. Hous. Fin. Agency, 50 F.4th 562, 571 (6th Cir. 2022) (“not[ing]” that agency-specific statute authorizes President to designate acting director in the event of “death, resignation, illness, and absence—but not, explicitly, removal”); O’Connell, supra note 2, at 674 (noting textual, legislative history, and policy arguments “weigh[ing] in favor of the Vacancies Act applying to firings”). 17 Cf., e.g., English v. Trump, 279 F. Supp. 3d 307, 322 (D.D.C. 2018) (noting party’s argument that agency-specific (continued...) Congressional Research Service 2 The Vacancies Act: A Legal Overview perform the functions and duties of the office” appears relatively broad on its face, and the Vacancies Act does not expressly exclude firings or temporary absences.18 As a general rule, a person may not temporarily perform the covered “functions and duties” of a vacant advice-and-consent position unless that service comports with the Vacancies Act.19 The Vacancies Act specifies that a “function or duty” is one that, by statute or regulation, must be performed by the officer in question.20 Section 334821 provides that, “unless an officer or employee is performing the functions and duties [of an office] in accordance with” the Act,22 “the office shall remain vacant.”23 If there is no acting officer serving in compliance with the Vacancies Act, then generally “only the head of [an] agency may perform” the functions and duties of a subordinate vacant office.24 Section 3348 further provides that if a person performs “any function or duty of a vacant office,” that action “shall have no force or effect” unless the person is complying with the Vacancies Act.25 The Vacancies Act also states that an agency may not ratify any acts taken in violation of the statute.26 Enforcement is discussed in more detail below.27 At the same time, as discussed elsewhere, the Vacancies Act contemplates that other statutes may, under limited circumstances, either supplement or supersede its provisions.28 Section 3347(a) provides that the Vacancies Act is exclusive unless “a statutory provision expressly” authorizes “an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.”29 However, § 3347(b) states that a general statute authorizing the head of an executive agency “to delegate duties statutorily vested in that agency head to, or to reassign duties statute referring to “absence or unavailability” includes only vacancies resulting from “temporary” conditions, opposing this language to that of the Vacancies Act); In re Grand Jury Investigation, 916 F.3d 1047, 1055–56 (D.C. Cir. 2019) (concluding that an agency-specific statute authorizing acting service in the event of the Attorney General’s “absence or disability” could apply when the Attorney General recused himself from certain investigations, because the “single-issue recusal” qualified as “a ‘disability’ that created a vacancy”). 18 5 U.S.C. § 3345(a). The Vacancies Act expressly refers to at least one form of temporary absence: sickness. See id. § 3346 (providing that time limits on acting service do not apply to “a vacancy caused by sickness”). 19 See id. §§ 3347–3348. 20 Id. § 3348(a)(2); see infra “What Are the “Functions and Duties” of an Office?” 21 This report refers to specific sections of the Vacancies Act using their location in Title 5 of the U.S. Code, rather than referring to sections of Pub. L. No. 105-277, 112 Stat. 2681–611 (1998). 22 Specifically, the statute requires compliance with 5 U.S.C. §§ 3345, 3346, and 3347. See id. § 3348(b). Section 3345 sets out three classes of people who may serve as acting officers; § 3346 prescribes time limitations for acting service; and § 3347(1) provides that the Vacancies Act is exclusive unless another statutory provision expressly allows a person to “perform the functions and duties of a specified office temporarily in an acting capacity.” These provisions are explained in more detail infra “Vacancies Act Limitations on Acting Service” and “Exclusivity of the Vacancies Act.” 23 5 U.S.C. § 3348(b). 24 Id. This provision allowing the head of the agency to perform functions and duties of the vacant office does not apply to an office that is “the head of an Executive Agency.” Id. § 3348(b)(2); see also S. REP. NO. 105-250, at 19 (1998) (“If the head of the agency position is vacant . . . the office is to remain vacant.”). 25 5 U.S.C. § 3348(d)(1). Section 3348(a)(1) defines “action” by reference to 5 U.S.C. § 551(13), which in turn defines “agency action” as “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 3348(a)(1). 26 Id. § 3348(d)(2). 27 See infra “Consequences of Violating the Vacancies Act.” 28 See infra “Exclusivity of the Vacancies Act.” In addition, the Vacancies Act does not apply if “the President makes an appointment to fill a vacancy in such office during the recess of the Senate pursuant to clause 3 of section 2 of article II of the United States Constitution.” 5 U.S.C. § 3347(a)(2). 29 5 U.S.C. § 3347(a)(1). Section 3347(a)(1)(A) refers to statutes that authorize “the President, a court, or the head of an Executive department, to designate” acting officers, while § 3347(a)(1)(B) refers to statutes that themselves designate acting officers. Congressional Research Service 3 The Vacancies Act: A Legal Overview among, officers or employees of such Executive agency” will not supersede the limitations of the Vacancies Act on acting service.30 For instance, 28 U.S.C. § 510, which states generally that the Attorney General may authorize any other employee to perform any function of the Attorney General, likely falls under § 3347(b), rather than § 3347(a).31 To supplement or supersede the Vacancies Act, a statute must “expressly” authorize “acting” service.32 Under certain circumstances, it might be the case that more than one statute governs acting service in a given office,33 and that a person could lawfully serve as an acting officer under either statute.34 As a result, § 3348 generally contemplates that three classes of people may perform the functions and duties of an advice-and-consent office when it is vacant: the agency head (if the vacancy is not the agency head), a person complying with the Vacancies Act, or a person complying with another statute that allows acting service.35 Which Offices? The Vacancies Act generally applies to advice-and-consent positions in executive agencies.36 The term “Executive agency”37 is defined in Title 5 of the U.S. Code as “an Executive department, a Government corporation, [or] an independent establishment.”38 For instance, one court applied 30 Id. § 3347(b). Legislative history suggests that Congress intended this provision to counter definitively the Department of Justice’s assertion that “its organic statute’s ‘vesting and delegation’ provision” rendered the Vacancies Act’s limitations inapplicable. 144 CONG. REC. 22508 (1998) (statement of Sen. Fred Thompson); see also id. at 22512 (statement of Sen. Robert Byrd) (“Most importantly . . . it is a bill which will, once and for all, put an end to these ridiculous, specious, fallacious arguments that the Vacancies Act is nothing more than an annoyance to be brushed aside.”); id. at 22513 (statement of Sen. Carl Levin) (“[The bill] would make clear that the act is the sole legal statutory authority for the temporary filling of positions pending confirmation. . . . I think in the opinion of probably most Senators that loophole does not exist. But, nonetheless, whether it is a real one or an imaginary one, it has been used by administrations in order to have people temporarily fill positions pending confirmation for just simply too long a period of time, which undermines the Senate’s advice and consent authority.”); id. at 22515 (statement of Sen. Strom Thurmond) (“[T]he Attorney General’s misguided interpretation of the current Vacancies Act . . . . practically interprets the Act out of existence.”); id. at 27497 (statement of Sen. Fred Thompson) (“[T]he organic statutes of the Cabinet departments do not qualify as a statutory exception to this legislation’s exclusivity in governing the appointment of temporary officers.”). 31 See 28 U.S.C. § 510; 5 U.S.C. § 3347(a)(1), (b). 32 5 U.S.C. § 3347(a)(1). The committee report on an earlier version of the 1998 bill noted that the bill would “retain[] existing statutes” that contained such an express authorization. S. REP. NO. 105-250, at 15–16 (1998). 33 See, e.g., Hooks ex rel. NLRB v. Kitsap Tenant Support Servs., 816 F.3d 550, 556 (9th Cir. 2016). 34 See, e.g., United States v. Lucido, 373 F. Supp. 1142, 1150 (E.D. Mich. 1974) (“[U]nder both 28 U.S.C. § 508 and 5 U.S.C. § 3345, the Deputy Attorney General assumes the duties of the vacant position.”). In Lucido, a district court upheld the actions of an acting officer who had exceeded the time limitations of an older version of the Vacancies Act, holding that a separate statute, 28 U.S.C. § 508(a), had authorized him to assume the duties of the Attorney General while acting in his position as Deputy Attorney General. Lucido, 373 F. Supp. at 1151. 35 5 U.S.C. § 3348(b). 36 Id. § 3347. 37 Id. 38 See id. § 105; Applicability of the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund and the World Bank, 24 Op. O.L.C. 58, 61 (2000) (using 5 U.S.C. § 105 to define the term “executive agency,” as used in the Vacancies Act). Congressional Research Service 4 The Vacancies Act: A Legal Overview this statutory definition to conclude the Vacancies Act does not apply to the Corporation for Public Broadcasting, because it was not an agency under this definition.39 In addition, the Vacancies Act explicitly excludes certain offices altogether.40 The Vacancies Act does not apply to • • • • • an officer of the Government Accountability Office (GAO);41 a member of a multimember board that “governs an independent establishment or Government corporation”; a “commissioner of the Federal Energy Regulatory Commission”; a “member of the Surface Transportation Board”; or a federal judge serving in “a court constituted under article I of the United States Constitution.”42 The Vacancies Act does not address its application to military officers,43 but another Title 5 provision defines “officer,” in part, as an individual “appointed in the civil service.”44 This language suggests the Act might not include uniformed officers. 39 Corp. for Pub. Broad. v. Trump, 786 F. Supp. 3d 142, 153 (D.D.C. 2025) (holding that regardless of “whether the Corporation bears the constitutional hallmarks of a private or governmental entity,” federal statutes make clear that it is not an agency for purposes of the Vacancies Act); see also Perlmutter v. Blanche, No. 25-5285, 2025 WL 2627965, at *5 (D.C. Cir. Sept. 10, 2025) (mem.) (Pan, J., concurring) (concluding the Library of Congress likely “is not an ‘Executive agency’ for purposes of the FVRA”), appeal filed, No. 25A478 (U.S. Oct. 27, 2025). 40 5 U.S.C. §§ 3345, 3348. One trial court nonetheless held that these excluded positions are not “entirely out of the statute’s scope,” and that “Section 3348(d)(1), which invalidates actions by improperly appointed officers, expressly encompasses ‘vacant office[s] to which . . . [Section] 3349c appl[ies].’” Aviel v. Gor, 780 F. Supp. 3d 1, 11 (D.D.C. 2025) (quoting 5 U.S.C. § 3348(d)(1)) (alterations in original). Accordingly, the court held § 3348 invalidated the actions of a person purporting to perform the duties of a board member excluded under § 3349c. Id. at 3. At the same time, however, § 3349c expressly states that “Sections 3345 through 3349b shall not apply to” the named offices. 5 U.S.C. § 3349c. 41 5 U.S.C. §§ 3345(a), 3347(a), 3348(b), 3349(a). Although GAO is generally considered to be a legislative agency rather than an executive branch agency, see, e.g., Colonial Press Int’l, Inc. v. United States, 788 F.3d 1350, 1357 (Fed. Cir. 2015), it is expressly excluded from the Vacancies Act—likely because 5 U.S.C. § 104 identifies GAO as an “independent establishment” falling within the generally applicable definition of “executive agency” provided in 5 U.S.C. § 105. 42 5 U.S.C. § 3349c. For instance, courts have said that the multimember board category includes members of the boards of the Inter-American Foundation and the U.S. African Development Foundation. Aviel, 780 F. Supp. 3d at 11; Rural Dev. Innovations Ltd. v. Marocco, No. 25-1631, 2026 WL 710260, at *3 (D.D.C. Mar. 13, 2026). This exclusion from the Act might not apply to members who are appointed to a distinct position and serve on a board ex officio, such as the President and First Vice President of the Export-Import Bank. Friends of Earth US v. Exp.-Imp. Bank of United States, No. 25-CV-02235, 2025 WL 3516161, at *7 (D.D.C. Oct. 10, 2025). One example of an “Article I court” is the U.S. Court of Appeals for Veterans Claims. See, e.g., CRS In Focus IF11365, U.S. Court of Appeals for Veterans Claims: A Brief Introduction, by Jonathan M. Gaffney (2021). 43 The Senate Report on an earlier version of the bill suggested that the military departments are generally covered by the Vacancies Act. S. REP. NO. 105-250, at 12 (1998). Title 5 separately defines “military departments,” 5 U.S.C. § 102, and does not expressly include this term in the definition of “Executive agency,” id. § 105, or in the Vacancies Act. Nonetheless, the Senate Report pointed out that the military departments are within the Department of Defense, which is expressly included within the definition of “Executive agency.” Id. §§ 101, 105. 44 5 U.S.C. § 2104. The Vacancies Act refers to both vacant “offices” and departing “officers.” Id. §§ 3345, 3347. Congressional Research Service 5 The Vacancies Act: A Legal Overview Additionally, while not excluded from the other requirements of the Vacancies Act,45 certain offices are exempt from the provision that allows agency heads to perform the duties of a vacant office and renders noncompliant actions void.46 The statute states that § 3348 does not apply to (1) the General Counsel of the National Labor Relations Board; (2) the General Counsel of the Federal Labor Relations Authority; (3) any Inspector General appointed by the President, by and with the advice and consent of the Senate; (4) any Chief Financial Officer appointed by the President, by and with the advice and consent of the Senate; or (5) an office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) if a statutory provision expressly prohibits the head of the Executive agency from performing the functions and duties of such office.47 Legislative history suggests that Congress sought to exclude these “unusual positions” from § 3348 because these officials are meant to be independent of the commission or agency in which they serve.48 The Senate report accompanying an earlier version of the Act suggests that for at least some of these positions, Congress intended “to separate the official who would investigate and charge potential violations of the underlying regulatory statute from the officials who would determine whether that statute had actually been violated.”49 Allowing the head of the agency to perform the nondelegable duties of these positions would undermine the independence of these positions.50 As mentioned, though, these positions are not only exempt from the Vacancies Act’s agency-head provision, but from the enforcement provision as a whole.51 Thus, if a person violates the Vacancies Act to perform the duties of one of these exempt positions, the law apparently would not void the noncompliant actions.52 The potential consequences of violating the Vacancies Act are discussed in more detail below.53 45 Id. § 3348(e); NLRB v. SW Gen., Inc., 580 U.S. 288, 309 (2017) (concluding 5 U.S.C. § 3345(b)(1) applied to Acting General Counsel of National Labor Relations Board and holding his service violated the Vacancies Act). 46 5 U.S.C. § 3348(b), (d), (e). 47 Id. § 3348(e). There are also agency-specific provisions governing acting service in some of these offices. See, e.g., id. § 403 note (Inspectors General); 29 U.S.C. § 153(d) (General Counsel of the National Labor Relations Board). For more information on how these agency-specific provisions might interact with the Vacancies Act, see infra “Exclusivity of the Vacancies Act.” 48 S. REP. NO. 105-250, at 20 (1998). This portion of the report discusses the exemptions for General Counsels, but the report offers distinct, but substantively similar, explanations for exempting the “agency inspectors general.” See id. The report does not specifically discuss sub-subsection (4), containing the exemption for Chief Financial Officers, see id., because this provision was added after the committee’s consideration of the bill. 144 CONG. REC. 27497 (1998) (statement of Sen. Fred Thompson). 49 S. REP. NO. 105-250, at 20 (1998). 50 Id. 51 5 U.S.C. § 3348. 52 See, e.g., NLRB v. Newark Elec. Corp., 14 F.4th 152, 161 (2d Cir. 2021) (“[A]ctions taken by an Acting General Counsel of the Board are not automatically void and may be ratified by a lawfully appointed acting official . . . .”); SW General, Inc. v. NLRB, 796 F.3d 67, 79, 81 (D.C. Cir. 2015) (assuming without deciding that actions of an improperly serving Acting General Counsel are voidable rather than void), aff’d, 580 U.S. 288, 309 (2017). 53 Infra “Consequences of Violating the Vacancies Act.” Congressional Research Service 6 The Vacancies Act: A Legal Overview The Vacancies Act also makes certain exemptions for holdover provisions in other statutes: Section 3349b provides that the Vacancies Act “shall not be construed to affect any statute that authorizes a person to continue to serve in any office” after the expiration of that person’s term.54 What Are the “Functions and Duties” of an Office? The Vacancies Act limits an officer or employee’s ability to perform “the functions and duties” of a vacant advice-and-consent office.55 This phrase is used in § 3345, to outline who may perform the office’s functions and duties; in § 3347, to state that the Vacancies Act is the exclusive means for temporarily authorizing an acting official to perform a vacant office’s functions and duties; and in § 3348, to outline what happens if an unauthorized person attempts to perform a vacant office’s functions and duties.56 The interpretation of “function or duty” is therefore critical to determining whether a person has violated the Vacancies Act and the consequences of a violation. The term “function or duty” is defined in § 3348—but the definition only applies in that section.57 As such, and as discussed in later sections of this report, courts have sometimes seemed to disagree about the import of this definition, and in particular, whether agencies can delegate the duties of a vacant office.58 Some courts have suggested that while § 3348’s definition might allow some delegations, § 3347 nonetheless might prevent agencies from using wholesale delegations of all of a vacant office’s functions and duties to another official.59 Section 3348’s definition states that a “function or duty” must be (1) established either by statute or regulation and (2) “required” by that statute or regulation “to be performed by the applicable officer (and only that officer).”60 A function or duty established by regulation falls under § 3348 if the regulation was “in effect at any time during the 180-day period preceding the date on which the vacancy occurs.”61 This 180-day provision has been referred to as a “lookback” provision that requires the agency to assign or reassign any regulatory duties prior to the vacancy.62 Thus, even if an agency reassigns a covered regulatory duty after the vacancy occurs, it will remain a “function or duty” of the office.63 Relying on legislative history, the GAO has said this provision was intended “to prevent agencies from re-issuing regulations providing that an office has no 54 5 U.S.C. § 3349b. See also Inapplicability of the Federal Vacancies Reform Act’s Reporting Requirements when PAS Officers Serve Under Statutory Holdover Provisions, 23 Op. O.L.C. 178, 179 (1999) (concluding “there is no vacancy to be reported under the Act when a PAS [Presidential Appointment with Senate Confirmation] officer continues service under a holdover provision,” but noting that this conclusion is not entirely clear). Additionally, Section 3345, which limits the types of people who can serve as an acting officer, includes a special provision allowing the President to direct certain officers who serve a fixed term in an executive department to continue to serve as an acting officer. 5 U.S.C. § 3345(c)(1); infra note 114. 55 5 U.S.C. §§ 3345(a), 3348(b). 56 Id. §§ 3345, 3347–3348. 57 Id. § 3348(a). 58 This section discusses cases interpreting § 3348’s definition of “function or duty.” A later section, “Consequences of Violating the Vacancies Act,” discusses in more detail how courts have interpreted § 3348’s enforcement provisions. 59 E.g., United States v. Giraud, 160 F.4th 390, 405 (3d Cir. 2025); United States v. Garcia, No. 25-cr-00230, 2025 WL 2784640, at *12 (D. Nev. Sep. 30, 2025), appeal filed, No. 25-6468 (9th Cir. Oct. 14, 2025). These cases are discussed infra “Delegation of Duties.” 60 5 U.S.C. § 3348(a)(2). 61 Id. § 3348(a)(2)(B)(ii). 62 See L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 33 (D.D.C. 2020) (discussing “lookback provision”); Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 71 (1999) (discussing “look-back provision”); O’Connell, supra note 2, at 634 (discussing “look-back period”). 63 See 5 U.S.C. § 3348(a)(2)(B)(ii). Congressional Research Service 7 The Vacancies Act: A Legal Overview exclusive duties,”64 preventing them from limiting the covered duties of the vacant office after the vacancy occurs.65 The definition of “function or duty” is also limited by the second element of the statutory definition—although courts have disagreed on how to interpret this provision.66 A duty is included if it must be performed “only” by the applicable officer.67 As one trial court described, there are at least two ways courts may interpret whether a statute or regulation “require[s]” a duty to be performed “only” by the applicable officer.68 In the first interpretation, “functions and duties” could refer to a more limited category of duties that are not only assigned to one office by statute or regulation, but also may not be delegated to any other official.69 On this reading, a statute does not “require[]” a duty to be performed “only” by one officer if the duty may be delegated to another official.70 In the second interpretation, the “functions and duties” of a vacant office include the responsibilities that are assigned by statute or regulation to only one particular office.71 Under either interpretation, a duty will not meet this definition if a statute or covered regulation expressly assigns the duty to more than one office.72 Applying the first, narrower interpretation of “functions and duties,” the Vacancies Act—or at least § 3348—has been described as applying to only the nondelegable functions and duties of a vacant office because a delegable duty is not a duty that may be performed “only” by the officer in the vacant office.73 As a consequence of this interpretation, some courts have concluded that temporary officials or subordinate officials may perform the delegable duties of a vacant office without violating the Vacancies Act.74 Under this first view, even if a duty has not been delegated, 64 Federal Vacancies Reform Act of 1998 - Assistant Attorney General for the Office of Legal, B-310780, 2008 U.S. Comp. Gen. LEXIS 101, at *10 n.11 (Comp. Gen. June 13, 2008). 65 See S. REP. NO. 105-250, at 2 (1998) (“Such duties include duties established by regulation for the officer during any part of the 180 days before the vacancy occurred, notwithstanding subsequent regulations that purported to limit those duties.”). 66 Compare, e.g., Behring Reg’l Ctr. LLC v. Wolf, 544 F. Supp. 3d 937, 946 (N.D. Cal. 2021) (“The FVRA does not define function or duty as required by ‘a statute that designates one officer to perform a non-delegable duty or function.’”), with, e.g., United States v. Ramirez, 807 F. Supp. 3d 1086, 1106–07 (C.D. Cal. 2025) (interpreting “§ 3348(a)(2)’s phrase ‘function or duty’ and its qualifier ‘and only that officer’” to include only “nondelegable functions or duties”). 67 5 U.S.C. § 3348(a)(2). 68 L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 31 (D.D.C. 2020). 69 See id. at 31–32. 70 Cf., e.g., Kajmowicz v. Whitaker, 42 F.4th 138, 148 (3d Cir. 2022) (Fisher, J., concurring) (arguing that to “conclude something is not a ‘function or duty,’” under the Vacancies Act, “the authority in question, in addition to being delegable, must actually have been delegated”). 71 See L.M.-M., 442 F. Supp. 3d at 31. 72 Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132, 135 (2d Cir. 2009) (holding that a duty fell outside the definition because, per regulation, it could be done by either the relevant officer or an authorized representative). 73 See, e.g., Kajmowicz, 42 F.4th at 148 (majority opinion); S. REP. NO. 105-250, at 18 (1998). 74 See, e.g., Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1336–38 (Fed. Cir. 2022); see generally ANNE JOSEPH O’CONNELL, ADMIN. CONF. OF THE U.S., ACTING AGENCY OFFICIALS AND DELEGATIONS OF AUTHORITY 28 (2019) (discussing agency practice of using delegations as a substitute for acting service under the Vacancies Act). Even if the Vacancies Act is not understood to bar delegation, however, the delegation may be challenged on its own terms. The legal principles that generally govern courts’ analyses of whether a delegation is permissible are discussed infra “Delegation of Duties.” Congressional Research Service 8 The Vacancies Act: A Legal Overview as long as it is delegable, it will fall outside the § 3348 definition.75 A number of courts,76 the executive branch,77 and GAO78 have seemingly adopted this view, concluding that the Vacancies Act applies only to nondelegable duties. One federal court of appeals acknowledged that this approach renders the Vacancies Act’s scope “vanishingly small,” as usually only a small subset of an official’s duties will be nondelegable, but the court nonetheless concluded that this was the best reading of § 3348.79 A different federal court of appeals characterized most of these court decisions as interpreting only § 3348, not other provisions of the Vacancies Act.80 By contrast, some trial courts have concluded that the second, broader interpretation of “function or duty” described above is more consistent with the text, operation, and purpose of the Vacancies Act.81 For example, one court said that the narrower reading of “function or duty” was “at odds” with Congress’s intent to prohibit agency heads from invoking general vesting-and-delegation statutes to evade the Vacancies Act.82 One of the Act’s primary purposes was to prevent the Executive from appointing “Officers of the United States”83 without Senate advice and consent.84 Accordingly, § 3347 specifies that a statute granting an agency head general authority to delegate duties will not override the Vacancies Act.85 At the same time, a general vesting-and-delegation statute likely renders many duties of an office delegable.86 As a result, if the responsibilities of a particular advice-and-consent position primarily consist of delegable duties, a general delegation statute could allow an agency head to delegate most of that position’s responsibilities to another 75 Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam); see also infra “Consequences of Violating the Vacancies Act.” 76 E.g., Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. U.S. Dep’t of Homeland Sec. (DHS), 107 F.4th 1064, 1076 (9th Cir. 2024); Kajmowicz v. Whitaker, 42 F.4th 13, 148–49 (3d Cir. 2022); Arthrex, 35 F.4th at 1336; cf. Stand Up for Cal.! v. U.S. Dep’t of Interior, 994 F.3d 616, 622 & n.2 (D.C. Cir. 2021) (“Although Appellants have not raised their FVRA claims on appeal, the statute still provides guideposts to which we should adhere in analyzing the challenge to delegated authority.”). 77 E.g., Under Secretary of the Treasury for Enforcement, 26 Op. O.L.C. 230, 233–34 (2002). 78 Federal Vacancies Reform Act of 1998 - Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice, B-310780, 2008 U.S. Comp. Gen. LEXIS 101, at *7 (Comp. Gen. June 13, 2008). 79 Arthrex, 35 F.4th at 1337. 80 United States v. Giraud, 160 F.4th 390, 404–06 (3d Cir. 2025) (saying other federal appeals court cases “relate to § 3348 rather than § 3347,” apart from Arthrex, 35 F.4th at 1338). 81 Pub. Emps. for Env’t Resp. v. Nat’l Park Serv., 605 F. Supp. 3d 28, 45 (D.D.C. 2022); Asylumworks v. Mayorkas, 590 F. Supp. 3d 11, 22–23 (D.D.C. 2022); Behring Reg’l Ctr. LLC v. Wolf, 544 F. Supp. 3d 937, 946–47 (N.D. Cal. 2021); L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 32 (D.D.C. 2020). As these citations suggest, three judges from the U.S. District Court for the District of Columbia have reached this conclusion even though the D.C. Circuit’s decision in Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam), seemed to imply that Section 3348 encompasses only nondelegable duties. Those trial courts have declined to apply Guedes on the grounds that the relevant statements in that opinion were dicta. E.g., L.M.-M., 442 F. Supp. 3d at 33. 82 L.M.-M., 442 F. Supp. 3d at 34. 83 U.S. CONST. art. II, § 2, cl. 2. 84 See, e.g., 144 CONG. REC. 22508 (1998) (statement of Sen. Fred Thompson) (“As participants in the appointments process, we Senators have an obligation, I believe, to ensure that the appointments clause functions as it was designed, and that manipulation of executive appointments not be permitted.”). 85 5 U.S.C. § 3347. As discussed supra note 30, the legislative history suggests that legislators were especially concerned with the fact that the Department of Justice was using general vesting-and-delegation statutes to evade the Vacancies Act’s limitations on acting service. See also, e.g., Pub. Emps. for Env’t Resp., 605 F. Supp. 3d at 46 (taking a broader approach to § 3348 and concluding that a provision allowing the Secretary of the Interior to delegate any of the office’s functions was “not the kind of ‘agency-specific statute’ that is ‘intended to apply alongside’” the Vacancies Act but was instead “a general authority that must be interpreted in light of the more specific and limited authority in the” Vacancies Act (quoting English v. Trump, 279 F. Supp. 3d 307, 319 (D.D.C. 2018))). 86 See L.M.-M., 442 F. Supp. 3d at 34; see also, e.g., 28 C.F.R. § 0.15 (2026) (authorizing the Deputy Attorney General to exercise the authorities of the Attorney General and to redelegate certain authorities). Congressional Research Service 9 The Vacancies Act: A Legal Overview official.87 The trial court said that by allowing “the mere existence of . . . vesting-and-delegation statutes” to “negate” the Vacancies Act’s enforcement mechanisms, the narrower reading would be inconsistent with the law’s purpose, as expressed in § 3347.88 Another trial court taking a broader view of the definition of “function or duty” agreed with these arguments based on the statute’s purpose and also believed the broader approach was consistent with the plain language of § 3348.89 That court held that a federal regulation created a function or duty “squarely within” the definition’s text because the regulation designated one specific “officer and only that officer to perform the duty or function.”90 The regulation did not “identify any other official” who could perform the function.91 In the court’s view, looking to the agency’s vestingand-delegation statute to conclude that the function was delegable would bring in “a second, additional statute”—an “interpretative exercise” unsupported by the Vacancies Act’s “unambiguous language.”92 Both approaches to interpreting “function or duty,” therefore, sometimes allow agencies to delegate the duties of an office and thereby exclude those duties from the Vacancies Act’s definition of function or duty, an issue discussed in more detail below.93 The first view broadly excludes any delegable duties. Under the first view, the Vacancies Act’s enforcement mechanisms will not apply to a noncompliant official so long as the relevant duty was delegable, even if the duty was not in fact properly delegated to that official. Under this second view, in contrast, if a duty is assigned only to one office—that is, it has not been delegated—the Vacancies Act’s enforcement mechanisms could apply even if the duty is theoretically delegable. The second view honors regulatory delegations in effect during the 180-day lookback period and would further allow the delegation of any duties that are statutorily assigned to more than one office.94 Vacancies Act Limitations on Acting Service Section 3348 of the Vacancies Act authorizes only certain officers or employees to perform the “functions and duties” of a vacant advice-and-consent office.95 Unless an acting officer is serving in compliance with the Vacancies Act, “the office shall remain vacant” and in the case of a subordinate office, only the agency head can perform a covered duty of a vacant advice-andconsent office.96 The Vacancies Act limits acting service in two main ways: it limits (1) the 87 See, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam). 88 L.M.-M., 442 F. Supp. 3d at 32, 34. As explained, this section discusses how courts have interpreted § 3348’s definition; later sections discuss whether § 3347 nonetheless bars broader delegations. Infra “Exclusivity of the Vacancies Act” and “Delegation of Duties.” 89 Behring Reg’l Ctr. LLC v. Wolf, 544 F. Supp. 3d 937, 946 (N.D. Cal. 2021). 90 Id. at 946. 91 Id. at 945–46. 92 Id. at 946. 93 Infra “Delegation of Duties.” The Department of Justice has argued that Congress intended to allow the delegation of “non-exclusive responsibilities” because Congress “understood” that if only the head of an agency could perform all of a vacant office’s duties, “the business of the government could be seriously impaired.” Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 72 (1999). 94 L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 34 (D.D.C. 2020); but cf. Behring Reg’l Ctr. LLC, 544 F. Supp. 3d at 947 (holding that a preexisting delegation of the Secretary’s functions to the Deputy Secretary did “not apply” when there was no Deputy Secretary to exercise the purportedly delegated statutory function). 95 5 U.S.C. § 3348(b). 96 Id. §§ 3345, 3346, 3348. Additionally, as discussed infra “Exclusivity of the Vacancies Act,” the Vacancies Act (continued...) Congressional Research Service 10 The Vacancies Act: A Legal Overview categories of people who may serve as an acting officer,97 and (2) the time period for which they may serve.98 Who Can Serve as an Acting Officer? Section 3345 allows three categories of government officials or employees to perform temporarily the functions and duties of a vacant advice-and-consent office under the Vacancies Act.99 First, as a default rule, once an office becomes vacant, “the first assistant to the office” becomes the acting officer.100 “First assistant” is a term of art under the Vacancies Act.101 Nonetheless, the term is not defined by the Act and its meaning can be ambiguous.102 The Vacancies Act’s legislative history suggests that the term refers to an office’s “top deputy.”103 For some offices, a statute or regulation explicitly designates an office to be the “first assistant” to that position.104 However, not all offices have such statutory or regulatory designations, and in those cases, who qualifies as the “first assistant” to that office may be open to debate.105 One additional question has been whether a first assistant must be serving at the time the vacancy occurs, or whether a person who later steps into the first assistant position can also serve as an acting officer under this provision of the Vacancies Act.106 A number of courts have said the allows a person to perform the duties of an office if another statute expressly authorizes “an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.” Id. § 3347. 97 Id. § 3345. 98 Id. § 3346. 99 Id. § 3345. 100 Id. § 3345(a)(1). 101 See 144 CONG. REC. 27496 (1998) (statement of Sen. Fred Thompson) (“The term ‘first assistant to the officer’ has been part of the Vacancies Act since 1868 . . . and the change in wording [to ‘first assistant to the office’] is not intended to alter case law on the meaning of the term ‘first assistant.’”); CASA de Md., Inc. v. Wolf, 486 F. Supp. 3d 928, 954 (D. Md. 2020) (“Historically, each Vacancies Act since 1868 identified the ‘first assistant’ as the most senior and capable official to serve in an acting capacity . . . .”); cf., e.g., L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 25–26 (D.D.C. 2020) (looking to a dictionary to determine the ordinary meaning of the term “first assistant”). 102 Compare Doolin Sec. Sav. Bank v. Off. of Thrift Supervision, 156 F.3d 190, 192 (D.C. Cir. 1998) (“[W]hether internal [agency] documents referring to Fiechter as a ‘first assistant’ rendered him such for the purposes of the Vacancies Act is a matter of considerable uncertainty. Our opinion in Doolin [I] recognized that, according to ‘one line of authority,’ the position of ‘first assistant’ must be created by statute before the automatic succession provision of the Vacancies Act applies.”) (quoting Doolin I, 139 F.3d 203, 209 n.3 (D.C. Cir. 1998)), with Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 63 (1999) (“At a minimum, a designation of a first assistant by statute, or by regulation where no statutory first assistant exists, should be adequate to establish a first assistant for purposes of the Vacancies Reform Act.”). 103 144 CONG. REC. 22525 (1998) (statement of Sen. Joseph Lieberman). 104 E.g., 28 U.S.C. § 508 (“[F]or the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.”); 28 C.F.R. § 0.137(b) (“Every office within the Department to which appointment is required to be made by the President with the advice and consent of the Senate . . . shall have a First Assistant within the meaning of the Federal Vacancies Reform Act of 1998. Where there is a position of Principal Deputy to the . . . office, the Principal Deputy shall be the First Assistant. Where there is no position of Principal Deputy . . . , the First Assistant shall be the person whom the Attorney General designates in writing.”). 105 See, e.g., Pub. Emps. for Env’t Resp. v. Nat’l Park Serv., 605 F. Supp. 3d 28, 44 (D.D.C. 2022) (“Because NPS has multiple Deputy Directors, none of the Deputy Directors is a ‘first assistant’ who automatically assumes those duties . . . .”); Designating an Acting Director of the Federal Housing Finance Agency, 43 Op. O.L.C. 70, 77 (2019) (stating that where an agency has multiple deputy directors, “none of them is obviously the . . . Director’s ‘first assistant’”). 106 See, e.g., L.M.-M., 442 F. Supp. 3d at 24 (noting that this “dispute poses a difficult question that the Office of Legal Counsel has answered differently at different times”). Compare Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 64 (1999) (concluding that an officer “must be the first assistant when the vacancy (continued...) Congressional Research Service 11 The Vacancies Act: A Legal Overview statute only authorizes the first assistant who was serving at the occurrence of the vacancy,107 while the executive branch has claimed that new first assistants can step in as acting officials.108 In a 2001 opinion, for instance, OLC noted that the text of the Vacancies Act refers to “the first assistant to the office,” not the particular officer, in contrast to prior versions of the Act.109 The courts rejecting this argument have emphasized other aspects of the statute’s text.110 For instance, a federal appeals court observed that § 3345 refers to “‘the first assistant,’ rather than ‘a’ first assistant,” meaning the first assistant serving at the time the Senate-confirmed official “dies, resigns, or is otherwise unable to perform.”111 Considering the text, “the first assistant to the office,” one trial court said this language could “be read just as readily to ensure that the ‘assistant’ . . . is the first assistant to the office and not a personal assistant to the departed officer.”112 In addition, courts have said allowing agencies to designate new first assistants would undermine the statutory scheme, which otherwise “narrowly constrain[s]” who the President may direct to serve.113 Apart from the first assistant, the President “may direct” two other classes of officials to serve as acting officers instead.114 First, the President may direct a person who has been confirmed to a different advice-and-consent position to serve as acting officer.115 Second, the President can select a senior “officer or employee” of the same executive agency, if that employee served in that agency for at least ninety days during the year preceding the vacancy and is paid at a rate equivalent to at least a GS-15 on the federal pay scale.116 Some courts have held that a standing occurs in order to be the acting officer by virtue of being the first assistant”), with Designation of Acting Associate Attorney General, 25 Op. O.L.C. 177, 180 (2001) (concluding that the prior OLC interpretation was erroneous). 107 United States v. Giraud, 160 F.4th 390, 400 (3d Cir. 2025); Widakuswara v. Lake, No. 25-cv-1015, 2026 WL 638676, at *5 (D.D.C. Mar. 7, 2026); United States v. Ramirez-Martinez, No. 22-cr-01721, 2026 WL 113431, at *14, *19 (D.N.M. Jan. 14, 2026); In re Grand Jury Subpoenas to Off. of N.Y. State Att’y Gen., 814 F. Supp. 3d 284, 294 (N.D.N.Y. 2026), appeal filed, No. 26-156 (2d Cir. Jan. 23, 2026); United States v. Ramirez, 807 F. Supp. 3d 1086, 1094–95 (C.D. Cal. 2025); United States v. Garcia, No. 25-cr-00230, 2025 WL 2784640, at *9 (D. Nev. Sept. 30, 2025), appeal filed, No. 25-6468 (9th Cir. Oct. 14, 2025). Five of these cases—all but Widakuswara—involved the naming of a new First Assistant United States Attorney. In addition to these six cases, one trial court concluded that an official named to a newly created principal deputy position at the United States Citizenship and Immigration Services could not qualify as a first assistant under the Vacancies Act because the principal deputy position was created after the vacancy occurred and would end once the superior was confirmed. L.M.-M., 442 F. Supp. 3d at 24. According to the court, the purported first assistant occupied a temporary position that would never “serve in a subordinate role—that is, as an ‘assistant’—to any other . . . official.” Id. 108 Designation of Acting Associate Attorney General, 25 Op. O.L.C. at 180. 109 Id. at 179–80 (quoting 5 U.S.C. § 3345(a)(1)). Accord Environmental Protection Agency—Legality of First Assistant Named After Vacancy Serving as Acting General Counsel, B-332995, 2021 WL 3406262, at *3 (Comp. Gen. Aug. 2, 2021). 110 E.g., Widakuswara, 2026 WL 638676, at *6 (emphasizing the automatic, mandatory nature of § 3345(a)(1)); In re Grand Jury Subpoenas, 814 F. Supp. 3d at 294 (saying the text “ties automatic succession to a single point in time: the moment the vacancy arises”). 111 Giraud, 160 F.4th at 398 (quoting 5 U.S.C. § 3345(a)(1)). 112 Garcia, 2025 WL 2784640, at *8. 113 Giraud, 160 F.4th at 398–99; accord, e.g., In re Grand Jury Subpoenas, 814 F. Supp. 3d at 295; Ramirez, 807 F. Supp. 3d at 1097. 114 5 U.S.C. § 3345. This directive may come only from the President. Id. There is one additional class of officials who may serve as acting officers: if an officer serves a fixed term, and the President has nominated that officer “for reappointment for an additional term to the same office in an Executive department without a break in service,” then the President may direct that officer to serve, subject to the same time limitations imposed by the Vacancies Act on any other acting officer. Id. § 3345(c)(1). 115 Id. § 3345(a)(2). 116 Id. § 3345(a)(3). Congressional Research Service 12 The Vacancies Act: A Legal Overview order of succession created by a President qualifies as a directive to serve under the Vacancies Act.117 Section 3345 places an additional limitation on the ability to serve as an acting officer. As a general rule (with an exception discussed below), if the President nominates a person to the vacant office, that nominee “may not serve as an acting officer” for that position.118 Thus, if the President nominates a person who is currently the acting officer for that position, that person usually may not continue to serve as acting officer without violating the Vacancies Act. 119 The President may name another qualified person to serve as an acting officer instead of the nominated person.120 One question is whether this general rule continues to prohibit a person from serving if the nomination is withdrawn or returned, or whether a person could resume service after a withdrawal or return.121 One federal appeals court has held that this “nomination bar” does not lift “when a nomination is no longer pending,” but continues for the entire vacancy.122 These limitations can create the need to shift government employees to different positions within the executive branch. For example, in January 2017, shortly after entering office, President Trump named Noel Francisco as Principal Deputy Solicitor General.123 Francisco then began to serve as Acting Solicitor General.124 In March of that year, the President announced that he would be nominating Francisco to serve permanently as the Solicitor General.125 After this announcement, Francisco was moved to another role in the department and Jeffrey Wall, who was chosen by Francisco to be the new Principal Deputy Solicitor General, became the acting Solicitor General.126 This last shift may have occurred to comply with the Vacancies Act.127 117 E.g., Fortin v. Comm’r of Soc. Sec., 112 F.4th 411, 419 (6th Cir. 2024); Dahle v. Kijakazi, 62 F.4th 424, 429 (8th Cir. 2023). 118 5 U.S.C. § 3345(b); NLRB v. SW Gen., Inc., 580 U.S. 288, 293 (2017). In NLRB v. SW General, Inc., the Supreme Court held that 5 U.S.C. § 3345(b)(1) applied to all three classes of persons who might serve as acting officers under the Vacancies Act, rather than only to first assistants serving under 5 U.S.C. § 3345(a)(1). 580 U.S. at 299. For more on this decision, see CRS Legal Sidebar WSLG1840, Help Wanted: Supreme Court Holds Vacancies Act Prohibits Nominees from Serving as Acting Officers, by Valerie C. Brannon (2017). 119 SW Gen., 580 U.S. at 293. 120 See 5 U.S.C. § 3345(b). 121 See, e.g., Letter from Members of the S. Comm. on Com., Sci., & Transp. to President Joseph Biden (Sep. 20, 2023), https://www.commerce.senate.gov/services/files/796C3233-2110-4A65-ADA3-4CFA39FDE167 [https://perma.cc/FL4F-WXWQ]. If a nomination is rejected—that is, the Senate has voted not to approve the nomination—a separate provision of law will prevent paying that person to fill the position. Financial Services and General Government Appropriations Act, 2008, Pub. L. No. 110-161, § 709, 121 Stat. 1972, 2021 (codified at 5 U.S.C. note prec. § 5501). Another provision prohibits “the payment of services to any individual carrying out the responsibilities of any position requiring Senate advice and consent in an acting or temporary capacity” if the person’s second nomination to the position is withdrawn or returned. Financial Services and General Government Appropriations Act, 2009, Pub. L. No. 111-8, § 749; 123 Stat. 630, 693 (codified at 5 U.S.C. note prec. § 5501). 122 United States v. Giraud, 160 F.4th 390, 401 (3d Cir. 2025). 123 Marcia Coyle, Noel Francisco, Trump’s Solicitor General Pick, Is Sidelined for Now, NAT’L L. J. (Apr. 6, 2017, at 11:12 ET), http://www.law.com/nationallawjournal/almID/1202783127057. 124 Id. Francisco replaced Ian Gershengorn in this role, who had himself been a Principal Deputy Solicitor General serving as Acting Solicitor General. See Attorney General Loretta E. Lynch Statement on Planned Departure of Solicitor General Donald B. Verrilli Jr. (June 2, 2016), https://www.justice.gov/opa/pr/attorney-general-loretta-e-lynchstatement-planned-departure-solicitor-general-donald-b [https://perma.cc/HK6E-97ZM]. 125 Coyle, supra note 123. 126 Id. 127 See Amy Howe, Opinion analysis: Court limits “acting” appointments to fill vacancies, SCOTUSBLOG (Mar. 22, (continued...) Congressional Research Service 13 The Vacancies Act: A Legal Overview There is an exception to this limitation: a person who is nominated to an office may serve as the acting officer if that person is the first assistant to that office and either (1) has served in that position for at least ninety days during the year preceding the vacancy128 or (2) was appointed to that position through the advice-and-consent process.129 Returning to the example of the Solicitor General position, it appears that Noel Francisco did not qualify for this exception and could not continue to serve as the Acting Solicitor General, once nominated to that position.130 Although Francisco may have been in a first assistant position, as the Principal Deputy Solicitor General,131 he had not served in that position for ninety days prior to the vacancy; nor had he been appointed to that position through the advice-and-consent process.132 For How Long? The Vacancies Act generally limits how long a vacant advice-and-consent position may be filled by an official serving under the Act.133 As illustrated in Figure 1, Section 3346 provides that a person may serve “for no longer than 210 days beginning on the date the vacancy occurs,” or, “once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.”134 The Act also allows a qualified person to serve for 210 days after the first or second nomination is rejected, withdrawn, or returned.135 These periods—the initial period of 210 days and the periods following a first or second nomination—are generally understood to run independently.136 Consequently, the submission and pendency of a nomination allow an acting officer to serve beyond the initial 210day period.137 2017), http://www.scotusblog.com/2017/03/opinion-analysis-court-limits-acting-appointments-fill-vacancies [https://perma.cc/MN5F-EHFK]. 128 See 5 U.S.C. § 3345(b)(1)(A). 129 See id. § 3345(b)(2). In addition, 5 U.S.C. § 3345(c) authorizes the President to direct “an officer who is nominated . . . for reappointment for an additional term to the same office in an Executive department without a break in service, to continue to serve in that office.” 130 See id. § 3345(b). 131 See 28 C.F.R. § 0.137(b) (“Every office within the Department to which appointment is required to be made by the President with the advice and consent of the Senate . . . shall have a First Assistant within the meaning of the [Vacancies Act]. Where there is a position of Principal Deputy to [an advice-and-consent position], the Principal Deputy shall be the First Assistant.”). 132 See Jimmy Hoover, Jones Day Attys Nab Key Legal Jobs in Trump Administration, LAW 360 (Jan. 20, 2017, at 14:12 ET), https://www.law360.com/articles/883009/jones-day-attys-nab-key-legal-jobs-in-trump-administration; Amy Howe, Francisco confirmed as solicitor general, SCOTUSBLOG (Sep. 19, 2017), http://www.scotusblog.com/2017/09/ francisco-confirmed-solicitor-general [https://perma.cc/Y7EM-ACBW]. 133 These time limitations do not apply, however, to “a vacancy caused by sickness.” 5 U.S.C. § 3346(a). As discussed infra “Exclusivity of the Vacancies Act” and “Delegation of Duties,” officials may be able to perform the duties for longer periods under some agency-specific statutes or delegations. 134 5 U.S.C. § 3346(a). 135 Id. § 3346(b). 136 E.g., Rush v. Kijakazi, 65 F.4th 114, 119 (4th Cir. 2023). The second time period has sometimes been described as a tolling provision, but as a technical matter, under the view that these time periods are independent, the submission of a nomination does not stop the clock on the 210-day period. That 210-day counter keeps running. Nevertheless, as a practical matter, the President’s submission of a nomination to Congress renders the 210-day period irrelevant. Even if a nomination is rejected, withdrawn, or returned before 210 days have passed, that return will trigger a new 210-day period. See 5 U.S.C. § 3346(b). 137 See 5 U.S.C. § 3346. Congressional Research Service 14 The Vacancies Act: A Legal Overview Figure 1. Vacancies Act Time Periods Source: Figure created by CRS using data from 5 U.S.C. § 3346. The 210-day limit is tied to the vacancy itself, rather than to any person serving in the office, and the period generally begins on the date that the vacancy occurs.138 Accordingly, this period does not begin on the date an acting officer is named and does not reset if the President names a new acting officer.139 The period is extended during a presidential transition period when a new President takes office.140 Specifically, if a vacancy exists on the new President’s inauguration day or occurs within 60 days after the inauguration,141 then the 210-day period begins either 90 days after inauguration or 90 days after the date that the vacancy occurred, depending on which is later.142 These requirements effectively create a 300-day period beginning either on January 20 or the date the vacancy occurred. If an acting officer attempts to perform a function or duty of an 138 See id. § 3346(a)(1). “If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period . . . shall begin on the date that the Senate first reconvenes.” Id. § 3346(c). Additionally, “[i]f the last day of any 210-day period under section 3346 is a day on which the Senate is not in session, the second day the Senate is next in session and receiving nominations shall be deemed to be the last day of such period.” Id. § 3348(c). 139 See id. § 3346(a)(1). Courts that have considered the question have confirmed that a vacancy occurs when the Senate-confirmed officer departs, not when an acting official resigns. United States v. Ramirez-Martinez, No. 22-cr01721, 2026 WL 113431, at *14 (D.N.M. Jan. 14, 2026); United States v. Ramirez, 807 F. Supp. 3d 1086, 1095 (C.D. Cal. 2025). 140 See 5 U.S.C. § 3349a. 141 This provision refers to a vacancy that exists during “the 60-day period beginning on a transitional inauguration day,” defined as “the date on which any person swears or affirms the oath of office as President, if such person is not the President on the date preceding the date of swearing or affirming such oath of office.” Id. 142 Id. § 3349a(b). Congressional Research Service 15 The Vacancies Act: A Legal Overview advice-and-consent office after the 210-day period has ended, and if the President has not nominated anyone to the office, that act will have no force or effect.143 Alternatively, § 3346 allows an acting officer to serve while “a first or second nomination for the office . . . is pending in the Senate,” regardless of how long that nomination is pending.144 The federal appeals courts that have considered this provision have held that an acting officer may serve during the pendency of a nomination even if that nomination is submitted after the 210-day period has ended.145 Thus, GAO and the executive branch have described § 3346 as containing a “spring-back” provision.146 Nominations to the vacant office can extend the periods for acting service for years. “If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate,” then an acting officer may continue to serve for another 210-day period beginning on the date of that rejection, withdrawal, or return.147 If the President submits a second nomination for the office, then an acting officer may continue to serve during the pendency of that nomination.148 If the second nomination is also “rejected, withdrawn, or returned,” then an acting officer may continue for one last 210-day period.149 An acting officer may not serve beyond this final period—the Vacancies Act will not allow acting service during the pendency of a third or any subsequent nominations.150 Where a vacancy spans presidential administrations, GAO has said that if a former President already submitted two nominations for the vacant position, these nomination-based time periods do not reset for a new President.151 Under this reading, if, for example, a former President submitted one nomination but withdrew it without confirmation, a new President’s first nomination to the position would be the second nomination for purposes of the time limitations in § 3346. OLC has disagreed with this view, asserting that a new administration “restarts the entire time sequence in section 3346.”152 Regardless, if the acting officer serves beyond the pendency of the allowed nominations and the subsequent 210-day periods, any action performing a function or duty of the office will have no force or effect.153 143 See id. § 3348. For more on violating the Vacancies Act, see infra “Consequences of Violating the Vacancies Act.” 144 5 U.S.C. § 3346(a)(2). However, 5 U.S.C. § 3345(b) generally limits the ability of a person to serve as acting officer if that person is the one nominated to the position, as discussed supra notes 118 to 132 and accompanying text. 145 Gaiambrone v. Comm’r Soc. Sec., No. 23-2988, 2024 WL 3518305, at *3 (3d Cir. July 24, 2024); Rush v. Kijakazi, 65 F.4th 114, 119 (4th Cir. 2023); Seago v. O’Malley, 91 F.4th 386, 390 (5th Cir. 2024); Fortin v. Comm’r of Soc. Sec., 112 F.4th 411, 420 (6th Cir. 2024); Dahle v. Kijakazi, 62 F.4th 424, 427 (8th Cir. 2023); Gorecki v. Comm’r, Soc. Sec. Admin., 143 F.4th 1295, 1298 (11th Cir. 2025). 146 Violation of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998—Department of Energy, Director of Office of Science, B-328888, slip op. at 2 (Comp. Gen. Mar. 3, 2017); Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 68 (1999). 147 5 U.S.C. § 3346(b)(1). 148 Id. § 3346(b)(2)(A). 149 Id. § 3346(b)(2)(B). 150 See id. § 3346(a)(2). 151 Legality of Service of Acting Inspector General, Department of Defense, Office of Inspector General, B-333853, 2022 WL 2341425, at *4 (Comp. Gen. June 26, 2022). 152 Federal Vacancies Reform Act’s Application to a Vacancy for Which Prior Presidents Submitted Multiple Nominations, 46 Op. O.L.C. (Oct. 21, 2022) (slip op. at 2). 153 See 5 U.S.C. § 3348. Congressional Research Service 16 The Vacancies Act: A Legal Overview Consequences of Violating the Vacancies Act The Vacancies Act may be enforced through both the political process and through litigation. Sections 3348 and 3349 spell out the law’s enforcement mechanisms. Section 3349 requires the heads of executive agencies to report covered vacancies, along with information about acting officers and nominations, “to the Comptroller General of the United States and to each House of Congress.”154 If the Comptroller General determines that an officer has served “longer than the 210-day period,” the Comptroller General must report this service to the appropriate congressional committees.155 This provision does not require the Comptroller General to make any such determination and may depend in part on agency reporting of vacancies.156 If the Comptroller General does make such a report to Congress, this reporting mechanism may prompt congressional action pressuring the executive branch to comply with the Vacancies Act, exerted through normal channels of oversight.157 For instance, in March 2018, the House Committee on Ways and Means Subcommittee on Social Security held a hearing on a vacancy in the office of the Commissioner of Social Security.158 The day before the hearing, the Comptroller General issued a letter reporting that the Acting Commissioner, Nancy Berryhill, was violating the Vacancies Act.159 Shortly thereafter, Berryhill reportedly stepped down from the position of Acting Commissioner, serving instead in her position of record as Deputy Commissioner of Operations.160 Section 3348 provides that unless an acting officer is serving “in accordance with” the Vacancies Act, the “office shall remain vacant” and “only the head of such Executive agency may perform any function or duty of such office” (unless the office is that of the agency head).161 The Act further provides that if a person performs “any function or duty of a vacant office” but is “not acting under” the Act, that action “shall have no force or effect” and “may not be ratified.”162 The text of the Vacancies Act does not expressly contemplate a means of removing any noncompliant acting officers from office. The most direct means to enforce the Vacancies Act is through private 154 Id. § 3349(a). The reporting requirement applies to a vacancy “in an office to which this section and sections 3345, 3346, 3347, 3348, 3349a, 3349b, 3349c, and 3349d apply.” Id. GAO’s website has a searchable database containing reported vacancy information. Federal Vacancies Reform Act, GAO, https://www.gao.gov/legal/federal-vacanciesreform-act/federal-vacancies-current-administration [https://perma.cc/PHS4-4CJW] (last visited Apr. 29, 2025). 155 5 U.S.C. § 3349(b). The reporting requirement may result in GAO issuing a formal opinion about whether a particular acting officer is complying with the Vacancies Act. See, e.g., Fed. Vacancies Reform Act of 1998 - Assistant Attorney Gen. for the Office of Legal Counsel, B-310780, 2008 U.S. Comp. Gen. LEXIS 101 (Comp. Gen. June 13, 2008). 156 A 2019 GAO opinion suggested that agencies are not fully compliant with their reporting obligations under the Vacancies Act. Agency Compliance with the Federal Vacancies Reform Act for Positions Subject to the Jurisdiction of Senate Finance Committee, B-329903, 2019 U.S. Comp. Gen. LEXIS 36 (Comp. Gen. Feb. 7, 2019). 157 See generally, e.g., Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 MARQ. L. REV. 881 (2014). 158 See Hearing on Lacking a Leader: Challenges Facing the SSA after over 5 Years of Acting Commissioners, H. Comm. on Ways & Means, 115th Cong. (2018). 159 Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998—Commissioner, Social Security Administration, B-329853 (Comp. Gen. Mar. 6, 2018). 160 Joe Davidson, Social Security Is Now Headless because of Trump’s Inaction. Will Other Agencies Be Decapitated?, WASH. POST (Mar. 12, 2018), https://www.washingtonpost.com/news/powerpost/wp/2018/03/12/social-security-nowheadless-because-of-trumps-inaction-will-others-agencies-be-decapitated. See also, e.g., Extension of Expiration Dates for Two Body System Listings, 83 Fed. Reg. 13863 (Apr. 2, 2018) (signed by “Nancy Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security”). 161 5 U.S.C. § 3348(b). 162 Id. § 3348(d). Congressional Research Service 17 The Vacancies Act: A Legal Overview suits in which courts may nullify noncompliant agency actions.163 Such a suit may be brought by a third party with standing, such as a regulated entity that has been injured by agency action.164 Accordingly, for example, a number of lawsuits challenged actions of the Social Security Administration that depended on Berryhill’s authority as Acting Commissioner.165 The Vacancies Act renders noncompliant attempts to perform a function or duty of a vacant office “void ab initio,”166 meaning that they were “null from the beginning.”167 As § 3348 expressly spells out,168 acts that are “void” may not be ratified, meaning that another person who properly exercises legal authority on behalf of an agency may not render the act valid by approving or replicating it.169 Accordingly, one court stated that the Vacancies Act “clearly” prohibits “a statement or directive that merely adopts an earlier action in identical form with no additional reasoning.”170 At the same time, the court clarified that agencies can sometimes reconsider a prior action and reach a similar outcome in a separate action that is not a mere ratification.171 One federal appeals court, for instance, said that while § 3348 prevented the ratification of a past act, it did not prevent “prospective actions,” like appointing a new official to perform an office’s functions.172 The Vacancies Act’s enforcement mechanisms—the no-force-or-effect provision and the noratification provision—apply if a person performs a “function or duty” of the vacant office.173 Consequently, their application is subject to the interpretive dispute described above regarding the proper interpretation of a “function or duty” that may “only” be performed by the relevant officer.174 The breadth of this definition can have significant consequences for agency actions.175 163 See S. REP. NO. 105-250, at 19–20 (1998) (“The Committee expects that litigants with standing to challenge purported agency actions taken in violation of these provisions will raise non-compliance with this legislation in a judicial proceeding challenging the lawfulness of the agency action.”). 164 E.g., Asylumworks v. Mayorkas, 590 F. Supp. 3d 11, 22 (D.D.C. 2022); cf. Williams v. Phillips, 360 F. Supp. 1363, 1364, 1367 (D.D.C. 1973) (considering whether Vacancies Act authorized person’s service as Acting Director of the Office of Economic Opportunity in the context of a suit brought by Senators to remove person from that position). But see CRS Report R45636, Congressional Participation in Litigation: Article III and Legislative Standing, by Kevin M. Lewis (2019). 165 See, e.g., Rush v. Kijakazi, 65 F.4th 114, 118 (4th Cir. 2023). 166 See NLRB v. SW Gen., Inc., 580 U.S. 288, 298 n.2 (2017); Asylumworks, 590 F. Supp. 3d at 19. 167 BLACK’S LAW DICTIONARY (12th ed. 2024) (defining “void ab initio” as “[n]ull from the beginning, as from the first moment when a contract is entered into”). 168 5 U.S.C. § 3348(d)(2). 169 See, e.g., FEC v. Legi-Tech, 75 F.3d 704, 707 (D.C. Cir. 1996) (stating, in description of party arguments, that the Federal Election Commission’s subsequent ratification of a defective civil enforcement proceeding could not cure error rendering that proceeding void ab initio). Legislative history suggests that Congress was specifically concerned with overruling the decision of the D.C. Circuit in Doolin I, 139 F.3d 203, 214 (D.C. Cir. 1998), in which that court had held that because a successor “effectively ratified” the action of an acting officer, the court did not need to decide whether that acting officer had “lawfully occupied the position.” See S. REP. NO. 105-250, at 5 (1998) (noting Doolin “underscored” the “need for new legislation”). This Senate report expressed concern that “the ratification approach taken by the court in Doolin would render enforcement of the [Vacancies Act] a nullity in many instances.” Id. at 20; see also 144 CONG. REC. 22508 (1998) (statement of Sen. Fred Thompson) (referencing Doolin as reason to enact bill). 170 Pub. Emps. for Env’t Resp. v. Nat’l Park Serv., 605 F. Supp. 3d 28, 47 (D.D.C. 2022). 171 Id. at 48. The court concluded that the Vacancies Act did not invalidate an agency rule that qualified as “a new deliberative action” even though the rule “reached a similar conclusion” as a prior action taken by an improperly acting official. Id. at 49; cf. Wille v. Lutnick, 158 F.4th 539, 549 (4th Cir. 2025) (applying “ordinary agency-law principles” to evaluate and approve a ratification in the context of an Appointments Clause challenge). 172 Fortin v. Comm’r of Soc. Sec., 112 F.4th 411, 427–28 (6th Cir. 2024). 173 5 U.S.C. § 3348. 174 Supra “What Are the “Functions and Duties” of an Office?” 175 See, e.g., Kajmowicz v. Whitaker, 42 F.4th 138, 149 (3d Cir. 2022). Congressional Research Service 18 The Vacancies Act: A Legal Overview If a court interprets the Vacancies Act not to apply to delegable duties, then even if a person violates the Act in performing a duty of the vacant office, the Act will not invalidate an action that was delegable.176 Courts adopting this narrower definition of “function or duty” have also allowed delegable functions to be ratified.177 In contrast, the trial courts taking a broader approach to the definition have concluded that § 3348 prevented the ratification of functions statutorily assigned to a vacant office.178 Under either approach, the Vacancies Act’s prohibitions will not apply if a statute expressly assigns the duty to more than one office.179 Accordingly, if a duty is delegable or has been delegated, § 3348 might not apply.180 In addition, the Vacancies Act’s enforcement mechanisms might not apply if a person is acting under an agency-specific statute, as discussed below,181 or if a person performs a function or duty of one of the offices that is excluded from § 3348.182 As mentioned, certain offices are exempt from the provision that nullifies the noncompliant actions of an acting officer,183 and the statute does not otherwise specify what consequences follow if a person temporarily serving in one of those offices violates the Vacancies Act.184 In NLRB v. SW General, Inc., the Supreme Court explicitly left open the question of remedy with respect to those officials who are carved out of § 3348.185 Outside the context of the Vacancies Act, courts evaluating allegedly unlawful agency actions might conclude those acts are voidable, rather than void.186 One trial court concluded § 3348 “‘creates a two-tiered system’ . . . [:] exclusive and nondelegable duties” are void ab initio, while “nonexclusive and delegable duties are subject to the normal rules of ultra vires action, meaning that they are voidable.”187 The consequences that flow from a determination that an action is “void” are more severe than if it is merely “voidable.”188 A “voidable” action is one that may be judged invalid because of some legal defect, but that “is not incurable.”189 For instance, before a court strikes down a voidable agency action, it might inquire into whether the legal defect created 176 E.g., United States v. Tinley Park, No. 1:16-cv-10848, 2017 WL 11883673, at *3–4 (N.D. Ill. July 17, 2017). 177 E.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam). 178 E.g., Asylumworks v. Mayorkas, 590 F. Supp. 3d 11, 25 (D.D.C. 2022); Behring Reg’l Ctr. LLC v. Wolf, 544 F. Supp. 3d 937, 948 (N.D. Cal. 2021). 179 Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132, 135 (2d Cir. 2009). 180 Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1335 (Fed. Cir. 2022) (“Because the FVRA applies only to non-delegable duties, and because deciding rehearing requests is a delegable duty, we hold that the FVRA does not apply here.”). But see, e.g., Widakuswara v. Lake, No. 25-cv-1015, 2026 WL 638676, at *8 (D.D.C. Mar. 7, 2026) (holding that attempted delegations violated the Vacancies Act and actions taken by the “asserted” acting officer were void). 181 Infra “Exclusivity of the Vacancies Act.” 182 Supra “Which Offices?” 183 5 U.S.C. § 3348(e). 184 See id. § 3348. 185 NLRB v. SW Gen., Inc., 580 U.S. 288, 298 n.2 (2017); 5 U.S.C. § 3348. 186 See, e.g., NLRB v. Newark Elec. Corp., 14 F.4th 152, 162–63 (2d Cir. 2021); cf., e.g., United States v. Goodner Bros. Aircraft, Inc., 966 F.2d 380, 384 (8th Cir. 1992) (“A regulation not promulgated pursuant to the proper notice and comment procedures has no ‘force or effect of law’ and therefore is void ab initio.”). 187 United States v. Naviwala, No. 24-CR-00099, 2026 WL 658885, at *27 (D.N.J. Mar. 9, 2026) (quoting United States v. Giraud, 795 F. Supp. 3d 560, 600 (D.N.J. 2025)). 188 Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. DHS, 107 F.4th 1064, 1077 (9th Cir. 2024) (stating that a voidable action may be challenged, but the agency may raise defenses such as harmless error, de facto officer doctrine, or ratification); cf. Sphere Drake Ins. Ltd. v. Clarendon Nat’l Ins. Co., 263 F.3d 26, 31 (2d Cir. 2001) (noting that a void contract “produces no legal obligation,” but that a voidable contract does impose legal obligations unless rescinded). 189 Easley v. Pettibone Mich. Corp., 990 F.2d 905, 909 (6th Cir. 1993). Congressional Research Service 19 The Vacancies Act: A Legal Overview actual prejudice.190 If an error is harmless, the court may uphold the agency action.191 Courts may also assume that a voidable action can be ratified by an official with the proper authority.192 In contrast, as under the Vacancies Act, a void act may not be ratified.193 Thus, some courts have held that agencies may ratify potentially invalid actions if the action does not meet the Vacancies Act’s definition of function or duty,194 the official was serving under an agency-specific statute,195 or the official falls within one of § 3348’s exceptions.196 Nonetheless, there is not consensus on these points,197 and there are open questions regarding when an agency action should be considered void or voidable. For instance, two trial courts held in 2025 and 2026 that although the Vacancies Act did not authorize acting service on the multimember boards governing the U.S. African Development Foundation and Inter-American Foundation, § 3348’s enforcement provisions nonetheless applied.198 The government argued that these positions at a multimember commission were excluded from the Vacancies Act, and so § 3348’s enforcement provisions should not apply.199 The trial courts reasoned that although an exclusion provision stated that “Sections 3345 through 3349b shall not apply to” these boards, seemingly encompassing Section 3348 in that range, § 3348 itself “expressly encompasses ‘vacant office[s] to which . . . [Section] 3349c appl[ies].’”200 Thus, as one of the courts concluded, “even if the President purports to appoint an officer to a Board-like entity in an acting capacity— something he cannot do under the [Vacancies Act] in the first place—any actions by that officer are null and void.”201 These open questions may be clarified in future litigation. Congress could, if it so chose, add statutory language clarifying the consequences of violating the Vacancies Act. For example, Congress could amend the definition of “functions or duties” or clarify the consequences for those exempt offices.202 Congress could also amend the existing enforcement mechanisms, 190 See, e.g., SW Gen., Inc. v. NLRB, 796 F.3d 67, 79 (D.C. Cir. 2015), aff’d, 580 U.S. 288, 309 (2017); Prof’l Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 564 (D.C. Cir. 1982). 191 See, e.g., Brock v. Pierce Cnty., 476 U.S. 253, 260 (1986) (“We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action . . . . When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act.” (footnote omitted)). 192 See, e.g., FEC v. NRA Pol. Victory Fund, 513 U.S. 88, 98 (1994). 193 FEC v. Legi-Tech, 75 F.3d 704, 707 (D.C. Cir. 1996). 194 E.g., Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. DHS, 107 F.4th 1064, 1076 (9th Cir. 2024); Kajmowicz v. Whitaker, 42 F.4th 13, 152 (3d Cir. 2022). 195 E.g., Batalla Vidal v. Wolf, 501 F. Supp. 3d 117, 130 (E.D.N.Y. 2020). For discussion of the interaction between the Vacancies Act and agency-specific statutes governing acting service, see infra “Exclusivity of the Vacancies Act.” As that section discusses, courts considered this issue in 2020 and 2021 in the context of acting service at DHS. 196 E.g., NLRB v. Newark Elec. Corp., 14 F.4th 152, 161 (2d Cir. 2021); Midwest Terminals of Toledo Int’l, Inc v. NLRB, 783 Fed. Appx. 1, 7 (D.C. Cir. 2019). In contrast, the appeals court in SW General, Inc. v. NLRB, 796 F.3d 67, 79, 81 (D.C. Cir. 2015), aff’d 580 U.S. 288, 309 (2017), assumed that the disputed actions were voidable rather than void and considered but ultimately rejected application of the harmless error and de facto officer doctrines. 197 See discussions supra “What Are the “Functions and Duties” of an Office?” and infra “Exclusivity of the Vacancies Act.” 198 Rural Dev. Innovations Ltd. v. Marocco, No. 25-1631, 2026 WL 710260, at *6 (D.D.C. Mar. 13, 2026); Aviel v. Gor, 780 F. Supp. 3d 1, 11 (D.D.C. 2025). 199 Rural Dev. Innovations Ltd., 2026 WL 710260, at *5; Aviel, 780 F. Supp. 3d at 11. 200 Aviel, 780 F. Supp. 3d at 11 (quoting 5 U.S.C. §§ 3348(d)(1), 3349c) (alterations in original); accord Rural Dev. Innovations Ltd., 2026 WL 710260, at *6. 201 Aviel, 780 F. Supp. 3d at 11. 202 See 5 U.S.C. § 3348. Congressional Research Service 20 The Vacancies Act: A Legal Overview possibly by altering the reporting requirements or adding consequences for violations of the Vacancies Act.203 Broader Legal Context Thus far, this report has focused on the Vacancies Act in isolation. The remainder of this report turns to selected legal issues that involve questions about how other federal laws, including both statutes and the Constitution, interact with the Vacancies Act. It also highlights special considerations for Congress. Exclusivity of the Vacancies Act The Vacancies Act, § 3347, provides “the exclusive means” to authorize “an acting official to perform the functions and duties” of a vacant office—unless another statute “expressly”: (A) authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or (B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity[.]204 Section 3347 further stipulates that a statute “providing general authority to the head of an Executive agency . . . to delegate duties statutorily vested in that agency head to, or to reassign duties among, officers or employees of such Executive agency, is not a statutory provision to which” the exception above applies.205 Thus, § 3347 states the Vacancies Act is exclusive unless another statute expressly authorizes acting service, but that a general vesting-and-delegation statute is not such an express authorization. Nevertheless, as this report discusses elsewhere, courts have sometimes concluded agencies may delegate the duties of a vacant office to an official who is not serving in an acting capacity without violating the Vacancies Act.206 Across the executive branch, there are many statutes that expressly address who will temporarily act for specified officials in the case of a vacancy.207 The Senate report on an earlier version of the Vacancies Act identified about forty agency-specific provisions that “would be retained by” the Act.208 To take one example, the Senate report anticipated that the Vacancies Act would not disturb the provision governing a vacancy in the office of the Attorney General.209 That statute 203 See, e.g., Securing Chain of Command Continuity Act, H.R. 6972, 118th Cong. § 2 (2024) (providing additional reporting requirements if an agency head who is a member of the National Security Council becomes medically incapacitated); S. 1761, 105th Cong. § 2 (1998) (providing that “[a]n individual who performs the duties of an office in any Executive agency . . . temporarily in excess of” the Vacancies Act’s time limits “may not receive pay for each day such duties are performed”). 204 5 U.S.C. § 3347(a). 205 Id. § 3347(b). 206 Supra “What Are the “Functions and Duties” of an Office?” (discussing whether the Vacancies Act applies to delegable functions and duties); infra “Delegation of Duties” (discussing cases in which courts have said § 3347 does—or does not—limit these delegations). 207 See, e.g., O’CONNELL, supra note 74, app. A at 74 (2019) (compiling agency-specific provisions). 208 S. REP. NO. 105-250, at 16–17 (1998). The list is numbered 1–40, but is missing numbers 26 and 27. 209 Id. at 16. Congressional Research Service 21 The Vacancies Act: A Legal Overview provides that “[i]n case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office.”210 If there is an agency-specific statute designating a specific government official to serve as acting officer, the Vacancies Act will no longer be exclusive.211 Even if the Vacancies Act does not exclusively apply to a specific position, though, that does not mean that the other statute does exclusively apply.212 It is possible that both the agency-specific statute and the Vacancies Act may be available to temporarily fill a vacancy.213 The Senate report can be read to support this view: it states that “even with respect to the specific positions in which temporary officers may serve under the specific statutes this bill retains, the Vacancies Act would continue to provide an alternative procedure for temporarily occupying the office.”214 A number of courts have held that this principle applies to the statute governing Attorney General vacancies quoted above, ruling that the President may invoke the Vacancies Act to name an acting official and override the statutory line of succession provided in the agency-specific statute.215 When two statutes simultaneously apply to authorize acting service, it may be unclear which statute governs in the case of a conflict. The Vacancies Act sets out a detailed scheme delineating three classes of governmental officials that may serve as acting officers216 and limiting the duration of an acting officer’s service.217 By contrast, agency-specific statutes tend to designate only one official to serve as acting officer218 and often do not specify a time limit on that official’s service.219 Accordingly, for example, if an acting officer is designated by the President to serve under the Vacancies Act but is not authorized to serve under the agency-specific statute, a potential conflict may exist between the two laws.220 Similarly, a conflict may exist if an acting 210 28 U.S.C. § 508(a). The statute further provides that “for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.” Id. This reference to the Vacancies Act has been in that statute at least since its codification in the Act of Sep. 6, 1966, Pub. L. No. 89-554, § 4(c), 80 Stat. 378, 612. 211 See 5 U.S.C. § 3347. 212 See, e.g., Hooks ex rel. NLRB v. Kitsap Tenant Support Servs., 816 F.3d 550, 556 (9th Cir. 2016); Designating an Acting Director of National Intelligence, 43 Op. O.L.C. 291, 294 (2019). 213 Temporary Filling of Vacancies in the Office of U.S. Attorney, 27 Op. O.L.C. 149, 149 (2003). 214 S. REP. NO. 105-250, at 17 (1998). 215 See, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 139 (D.D.C. 2019), aff’d on other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam); see also United States v. Castillo, 772 Fed. Appx. 11, 13 n.5 (3d Cir. 2019) (collecting cases). 216 5 U.S.C. § 3345. 217 Id. § 3346. 218 See, e.g., 15 U.S.C. § 633(b)(1) (designating Deputy Administrator of the Small Business Administration to act for Administrator); 50 U.S.C. § 3037(b)(2) (designating Deputy Director of the Central Intelligence Agency to act for Director); cf., e.g., 28 U.S.C. § 508 (designating Deputy Attorney General to act for Attorney General and providing that Attorney General may designate “further order of succession”); 42 U.S.C. § 902(b)(4) (designating Deputy Commissioner of Social Security to act for Commissioner “unless the President designates another officer of the Government”). 219 See S. REP. NO. 105-250, at 17 (1998); see also, e.g., United States v. Guzek, 527 F.2d 552, 560 (8th Cir. 1975) (ruling that official serving under an agency-specific statute “succeeded to all the powers of the office . . . without circumscription by the 30-day limitation” created by a prior version of Vacancies Act). But cf., e.g., 12 U.S.C. § 4512(f) (authorizing the designation of an acting Federal Housing Finance Agency Director who will serve “until the return of the Director, or the appointment of a successor”); 29 U.S.C. § 153(d) (“[N]o person . . . designated [to act as General Counsel of the NLRB] shall so act (1) for more than forty days when the Congress is in session unless a nomination to fill such vacancy shall have been submitted to the Senate, or (2) after the adjournment sine die of the session of the Senate in which such nomination was submitted.”). 220 See CRS Legal Sidebar LSB10036, UPDATE: Who’s the Boss at the CFPB?, by Valerie C. Brannon and Jared P. Cole (2018) (describing conflict over vacancy in the position of the Director of the Consumer Financial Protection (continued...) Congressional Research Service 22 The Vacancies Act: A Legal Overview officer cites an agency-specific statute to serve beyond the time limits of the Vacancies Act.221 If an official’s service complies with only one of the two statutes that potentially authorize service, such a situation may prompt challenges to the authority of that acting official.222 At the same time, courts are generally reluctant to conclude that statutes conflict and will usually assume that two laws “are capable of co-existence . . . absent a clearly expressed congressional intention to the contrary.”223 So far, courts have tended to conclude that the Vacancies Act should operate concurrently with agency-specific statutes, and that government officials should be able to temporarily serve under either statute.224 Where the two statutes coexist, the effect is that whichever statute the executive branch invokes is the controlling one.225 Accordingly, for instance, courts have held that although an agency-specific statute might suggest one specific person should step in in the event of a vacancy in office, the President can still invoke the Vacancies Act to designate another qualified acting official.226 As a federal appeals court concluded, “the President is permitted to elect between these two statutory alternatives to designate” an acting officer.227 In 2018, the Deputy Director of the Consumer Financial Protection Bureau (CFPB) argued that the President could not invoke the Vacancies Act to designate an Acting CFPB Director.228 She argued that the agency-specific statute was mandatory, providing that the CFPB’s Deputy Director “shall . . . serve as acting Director in the absence or unavailability of the Director.”229 A trial court rejected this argument, saying both statutes were available: the agency-specific statute “requires that the Deputy Director ‘shall’ serve as acting Director, but . . . under the [Vacancies Act] the President ‘may’ override that default rule.”230 While many agency-specific statutes may apply concurrently with the Vacancies Act, others expressly displace the Vacancies Act. A statute that applies to vacancies in many Inspector General offices provides that § 3345(a) of the Vacancies Act “shall not apply.”231 Instead, the Bureau in which the Deputy Director claimed that an agency-specific statute authorizing the Deputy to serve as Acting Director was the sole legal authority governing the vacancy, while the President invoked the Vacancies Act to name a different person as Acting Director). 221 See, e.g., Department of Labor—Legality of Service of Acting Secretary of Labor, B-335451, 2023 U.S. Comp. Gen. LEXIS 260, at *7–8 (Comp. Gen. Sep. 21, 2023) (concluding that Deputy Secretary of Labor could serve as Acting Secretary under 29 U.S.C. § 552 until successor is appointed). 222 See, e.g., Lower E. Side People’s Fed. Credit Union v. Trump, 289 F. Supp. 3d 568, 571 (S.D.N.Y. 2018) (citing procedural grounds to dismiss a suit that challenged an acting officer designated under the Vacancies Act by arguing that an agency-specific statute provided the sole authority for someone to serve as acting director of the agency). 223 Morton v. Mancari, 417 U.S. 535, 551 (1974). 224 See, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 139 (D.D.C. 2019), aff’d on other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam); English v. Trump, 279 F. Supp. 3d 307, 319 (2018); United States v. Lucido, 373 F. Supp. 1142, 1151 (E.D. Mich. 1974). 225 See, e.g., Lucido, 373 F. Supp. at 1151; English, 279 F. Supp. 3d at 324. 226 E.g., Hooks ex rel. NLRB v. Kitsap Tenant Support Servs., 816 F.3d 550, 555 (9th Cir. 2016); English, 279 F. Supp. 3d at 319. 227 Hooks, 816 F.3d at 556. 228 English, 279 F. Supp. 3d at 319. 229 12 U.S.C. § 5491(b)(5) (emphasis added). 230 English, 279 F. Supp. 3d at 319. 231 5 U.S.C. § 403 note. This provision governs “the Inspector General of an establishment [defined in 5 U.S.C. § 401(1)], the Special Inspector General for the Troubled Asset Relief Program, and the Special Inspector General for Pandemic Recovery.” Id. At least two other Inspectors General have similar provisions. See James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117-263, § 5203, 136 Stat. 2395, 3229–33 (2022). Congressional Research Service 23 The Vacancies Act: A Legal Overview statute outlines slightly different conditions for who may serve as Acting Inspector General, still “subject to the time limitations” of § 3346.232 When officials serve under an agency-specific statute, they must comply with any requirements or limitations set out in that separate statute—and may not have to comply with Vacancies Act limitations.233 Courts have largely held that the timelines for acting service come from whichever statute governs the temporary service.234 For instance, trial courts concluded that a Deputy Secretary of Labor could serve beyond the initial 210-day period authorized by the Vacancies Act, under the terms of an agency-specific statute allowing her to “perform the duties of the Secretary until a successor is appointed.”235 Some have argued that lengthy service under agency-specific statutes violates the Appointments Clause of the U.S. Constitution—an issue discussed below.236 Thus far, however, some courts have rejected those claims and allowed officials to serve indefinitely under agency-specific statutes that do not contain express time limits.237 Courts will also enforce agency-specific provisions governing who can serve. For example, between August 2020 and January 2021, six different judicial opinions concluded that the Department of Homeland Security (DHS) violated the Homeland Security Act of 2002 (HSA) in designating an Acting DHS Secretary.238 The HSA provides that the Deputy Secretary of 232 5 U.S.C. § 403 note. 233 See, e.g., Rop v. Fed. Hous. Fin. Agency, 50 F.4th 562, 572 (6th Cir. 2022) (holding that an official serving under an agency specific statute was not subject to any time limits); Social Security Administration—Legality of Service of Acting Commissioner, B-333543, slip op. at 1–2 (Comp. Gen. Feb. 1, 2022) (concluding the Vacancies Act’s time limitations and enforcement provisions did not apply to an Acting Commissioner of Social Security serving under the Social Security Act rather than the Vacancies Act). But see, e.g., Nw. Immigrant Rts. Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 58–59 (D.D.C. 2020) (concluding 5 U.S.C. § 3348(d) might apply to an official serving under an agency-specific statute, so long as the vacant position is also covered by the Vacancies Act); Acting Federal Insurance Administrator’s Status & Authority, B-183012, 56 Comp. Gen. 761, 765 (1977) (concluding that a Deputy Administrator could no longer act for the Administrator even though that was part of his duties because “the time has long since expired when anyone—whatever his title—may serve as Acting Administrator”). 234 See, e.g., Hooks ex rel. NLRB v. Kitsap Tenant Support Servs., 816 F.3d 550, 556 (9th Cir. 2016); Batalla Vidal v. Wolf, 501 F. Supp. 3d 117, 130 (E.D.N.Y. 2020); Nw. Immigrant Rts. Project, 496 F. Supp. 3d at 70; Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520, 538 (N.D. Cal. 2020); CASA de Md., Inc. v. Wolf, 486 F. Supp. 3d 928, 955 (D. Md. 2020). 235 29 U.S.C. § 552; e.g., Su v. Coway USA, Inc., 758 F. Supp. 3d 1186, 1193 (C.D. Cal. 2024); Associated Builders & Contractors of Se. Tex., Inc. v. Su, 771 F. Supp. 3d 879, 910 (E.D. Tex. 2025). 236 Infra “Appointments Clause Challenges.” 237 E.g., Rop, 50 F.4th at 571 (rejecting the constitutional claim on its merits); Associated Builders & Contractors of Se. Tex., Inc., 771 F. Supp. 3d at 911 (same); Bhatti v. Fed. Hous. Fin. Agency, 15 F.4th 848, 853–54 (8th Cir. 2021) (concluding any constitutional error was cured by ratification); cf. Gaiambrone v. Comm’r Soc. Sec., No. 23-2988, 2024 WL 3518305, at *2 (3d Cir. July 24, 2024) (declining to hold service under Vacancies Act violates the Constitution but observing that scenario where acting official serves under a statute without time limitations might be “distinguishable”). In one opinion, OLC stated that although an acting official was serving under an agency-specific statute with no express time limit, his service “may not continue indefinitely,” and the President must submit a nomination “within a reasonable time.” Status of the Acting Director, Office of Management and Budget, 1 Op. O.L.C. 287, 287 (1977); see also Designating an Acting Attorney General, 42 Op. O.L.C. 182, 204 (2018) (reaffirming the conclusion that acting officers should not serve beyond a reasonable time). 238 Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 966, 974 (N.D. Cal. 2021); Batalla Vidal, 501 F. Supp. 3d at 131; Nw. Immigrant Rts. Project, 496 F. Supp. 3d at 70; Immigrant Legal Res. Ctr., 491 F. Supp. 3d at 535–36; CASA de Md., 486 F. Supp. 3d at 957; La Clinica de la Raza v. Trump, 477 F. Supp. 3d 951, 972 (N.D. Cal. 2020); accord Department of Homeland Security—Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security, B-331650 (Comp. Gen. Aug. 14, 2020). Many of these judicial decisions involved requests for preliminary injunctions, and so the courts held only that the plaintiffs were likely to succeed on the merits of their claims arguing the acting appointments were improper. Congressional Research Service 24 The Vacancies Act: A Legal Overview Homeland Security is the Secretary’s “first assistant for purposes of the Vacancies Act.”239 The HSA also states that, “notwithstanding” the Vacancies Act, the Secretary “may designate” a “further order of succession to serve as Acting Secretary.”240 DHS Secretaries had invoked this HSA provision to designate a further order of succession, and several courts held that DHS acted impermissibly when the agency attempted to install an Acting Secretary outside the relevant line of succession.241 Courts have disagreed about whether § 3348’s enforcement mechanism applies and prevents the ratification of noncompliant actions, if an official is serving under an agency-specific statute.242 One trial court ruled that because the DHS Acting Secretary was not serving under the Vacancies Act, the Act’s no-ratification provision did not apply: that is, a properly serving official could ratify his actions.243 However, two later trial court decisions concluded that § 3348 did bar the ratification of actions taken by the improperly acting DHS official, because the Vacancies Act still applied to the vacant office, even if the specific acting official was purportedly designated under the HSA.244 As the foregoing cases illustrate, congressional silence on the relationship between agencyspecific provisions and the Vacancies Act can leave courts with difficult questions for resolution. Congress can itself resolve tensions between the Vacancies Act and agency-specific statutes by clarifying when these statutes apply. For example, the HSA states that certain of the statutory provisions governing acting service in the office of the Secretary of Homeland Security apply “notwithstanding” the Vacancies Act,245 indicating an intent to render the Vacancies Act inapplicable under the relevant circumstances.246 To take another example, the statute governing 239 6 U.S.C. § 113(a)(1)(A). The HSA further specifies that, “notwithstanding” the Vacancies Act, “the Under Secretary for Management shall serve as the Acting Secretary if “neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary.” Id. § 113(g)(1). 240 Id. § 113(g)(2). 241 Specifically, after the Senate-confirmed Secretary resigned, an Acting Secretary claimed authority to act under a succession order that pertained to acting service in the event of a disaster or catastrophic emergency, but he was not authorized to serve under the succession order that applied in the event of the Secretary’s death, resignation, or inability to perform the functions of the Office. See, e.g., Immigrant Legal Res. Ctr., 491 F. Supp. 3d at 535; CASA de Md., Inc., 486 F. Supp. 3d at 957; La Clinica de la Raza, 477 F. Supp. 3d at 972. 242 Cf. supra note 209 (discussing cases holding that Section 3348 did apply where no statute authorized acting service). 243 Batalla Vidal, 501 F. Supp. 3d at 130 (“Because Mr. Wolf did not assume the Acting Secretary role under Section 3345, Sections 3346 and 3348 do not apply to him.”). That court ultimately concluded, however, that the ratification was likely ineffective on its merits. Id. at 133; cf. Nw. Immigrant Rights Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 69–70 (D.D.C. 2020) (concluding that the ratification likely did render the initial errors harmless, assuming that a new succession order was valid, but later concluding that the succession order was not valid because it was issued by an Acting Secretary without authority to designate an order of succession). 244 Asylumworks v. Mayorkas, 590 F. Supp. 3d 11, 22 n.8 (D.D.C. 2022); Behring Reg’l Ctr. LLC v. Wolf, 544 F. Supp. 3d 937, 946 (N.D. Cal. 2021); cf. Nw. Immigrant Rights Project, 496 F. Supp. 3d at 59 (concluding that § 3348 could apply to an Acting Secretary serving under the HSA, but holding that the no-ratification provision did not apply to a duty that had been delegated prior to the vacancy). In another case, a trial court held the improper appointment of a U.S. Attorney under a position-specific statute violated the Appointments Clause, and the unlawful appointment rendered “all her purported official actions void ab initio.” United States v. James, 810 F. Supp. 3d 752, 764 (E.D. Va. 2025), appeal filed, No. 25-4673 (4th Cir. Dec. 22, 2025); accord United States v. Comey, 810 F. Supp. 3d 768, 781 (E.D. Va. 2025), appeal filed, No. 25-4674 (4th Cir. Dec. 22, 2025). 245 6 U.S.C. § 113(g)(1) (“Notwithstanding chapter 33 of title 5, the Under Secretary for Management shall serve as the Acting Secretary if . . . neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary.”); id. § 113(g)(2) (“Notwithstanding chapter 33 of title 5, the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary.”). 246 See, e.g., Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520, 537 (N.D. Cal. 2020); Designating an Acting Director of National Intelligence, 43 Op. O.L.C. 291, 296 (2019); see generally, e.g., Cisneros v. Alpine Ridge Grp., (continued...) Congressional Research Service 25 The Vacancies Act: A Legal Overview vacancies in the office of the Attorney General provides that “for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.”247 This statute expressly clarifies—in at least one respect—how the two statutes interact.248 Congress could also amend the Vacancies Act itself—for example, to clarify that an agency-specific statute containing a mandatory provision for acting service not only renders the Vacancies Act nonexclusive, but also inapplicable.249 Delegation of Duties Agencies sometimes delegate the duties of a vacant office to another official, particularly if the time limits of the Vacancies Act have run out. Delegating the duties of a Senate-confirmed office can raise constitutional issues, as discussed in the next section of this report.250 These delegations also raise legal questions under the Vacancies Act and on their own merits. Ambiguity in the definition of “function or duty” has created competing interpretations of what functions are covered by the Vacancies Act, as explained above.251 Section 3348 defines a covered “function or duty” to include only statutory or regulatory duties that are “required . . . to be performed by the applicable officer (and only that officer).”252 Relying on the definition that applies to § 3348, some courts have interpreted the Vacancies Act to encompass only the nondelegable functions and duties of a vacant advice-and-consent position.253 Others have interpreted the Act to exclude functions and duties that have actually been delegated to another official within the lookback period.254 Under either view, a number of courts, GAO, and OLC have concluded that this definition allows agency officials to perform at least some lawfully delegated duties of a vacant office without violating the Vacancies Act.255 The law therefore may allow other officials to perform certain duties even if the Vacancies Act’s time limits have run out, or even if the agency official is not 508 U.S. 10, 18 (1993) (saying a “notwithstanding” clause “clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section”). 247 28 U.S.C. § 508. 248 Cf. United States v. Lucido, 373 F. Supp. 1142, 1150–51 (E.D. Mich. 1974) (considering how to reconcile 28 U.S.C. § 508 with a prior version of the Vacancies Act); Authority of the President to Name an Acting Attorney General, 31 Op. O.L.C. 208, 209–10 (2007) (stating President’s designation of an acting officer under the Vacancies Act would trump Attorney General’s designation of a successor under 28 U.S.C. § 508(b)). 249 See, e.g., Accountability for Acting Officials Act, H.R. 6689, 116th Cong. § 2(g) (2020) (“[A]ny statutory provision . . . that contains a non-discretionary order or directive to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity shall be the exclusive means for temporarily authorizing an acting official to perform the functions and duties of such office.”); Appointments Clause Enforcement Act of 2020, H.R. 8481, 116th Cong. § 2(e) (2020) (similar). 250 But see, e.g., Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1335 (Fed. Cir. 2022) (rejecting argument that service under a delegation violated the Appointments Clause because it was unlimited, stating that service was “limited to the period” of the vacancy). 251 See 5 U.S.C. § 3348; supra “What Are the “Functions and Duties” of an Office?” 252 5 U.S.C. § 3348(a)(2). 253 See, e.g., Arthrex, Inc., 35 F.4th at 1335; L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 32 (D.D.C. 2020). 254 See, e.g., Nw. Immigrant Rights Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 59 (D.D.C. 2020); supra notes 61 to 63 and accompanying text. 255 E.g., Kajmowicz v. Whitaker, 42 F.4th 138, 148 (3d Cir. 2022); Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. DHS, 107 F.4th 1064, 1076 (9th Cir. 2024); Arthrex, Inc., 35 F.4th at 1336; Federal Vacancies Reform Act of 1998 Assistant Attorney General for the Office of Legal Counsel, B-310780, 2008 U.S. Comp. Gen. LEXIS 101, at *12–13 (Comp. Gen. June 13, 2008); Under Secretary of the Treasury for Enforcement, 26 Op. O.L.C. 230, 233–34 (2002). Congressional Research Service 26 The Vacancies Act: A Legal Overview qualified to serve under the Vacancies Act.256 Agencies might designate officials as “performing the duties of” a vacant position when the official is performing those duties pursuant to an agency delegation rather than a statute authorizing acting service.257 Delegations can take various forms. For instance, some agencies have standing delegations of specific duties, and agencies may sometimes make delegations of all of an office’s duties in the event of a vacancy.258 At the same time, a number of trial courts and one federal appeals court have held that the executive branch violated the Vacancies Act wh [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR44997. Public record. Not legal advice.