# Statement for the Record: Examining the Senate Confirmation Process and Federal Vacancies 

Over the last two decades, presidents of both parties have increasingly exploited a loophole in the Federal Vacancies Reform Act of 1998 (FVRA) to turn temporary acting officers into *de facto* permanent officers.

March 3, 2022 • Testimony 

By [Thomas A. Berry](https://www.cato.org/people/thomas-berry) 

**Committee on Homeland Security and Government Affairs 
United States Senate**

Dear Chairman Peters, Ranking Member Portman, and distinguished Senators:

My name is Thomas Berry, and I am a research fellow with the Cato Institute’s Robert A. Levy Center for Constitutional Studies. I would like to thank the committee for convening Thursday’s hearing, titled “Examining the Senate Confirmation Process and Federal Vacancies.” I appreciate the opportunity to express my views on this topic. In particular, I am writing to draw attention to a flaw in the current vacancies law that has allowed the executive branch to evade Senate review of federal officials all too easily.[1](#_ednref1)

## The FVRA’s “Delegable Duties” Loophole

Over the last two decades, presidents of both parties have increasingly exploited a loophole in the Federal Vacancies Reform Act of 1998 (FVRA) to turn temporary acting officers into *de facto* permanent officers. Eliminating this loophole would help restore the proper role of the Senate in the appointment process. With a key amendment to the FVRA, Congress can achieve an appropriate balance between accountability and efficiency in the federal appointment process.

The FVRA places limits on both *who* can serve as an acting officer and *how long* they can serve.[2](#_ednref2) These limits are the core limitations that the FVRA places on the executive branch. Without such limits, the executive branch would have little incentive to nominate people for Senate confirmation rather than using the Vacancies Act.[3](#_ednref3) The drafters of the FVRA thus knew that the key to making it an effective check on the executive branch was meaningful enforcement of these limits.[4](#_ednref4) In an attempt to give real teeth to the Vacancies Act’s limitations, Congress created an enforcement mechanism that invalidates an invalid acting officer’s work.[5](#_ednref5) The intention was that if a purported acting officer stayed in office past the FVRA’s deadline or lacked the FVRA’s required qualifications, that officer’s actions could be challenged in court and invalidated.[6](#_ednref6)

But in the years since the FVRA was passed, this enforcement mechanism has not incentivized compliance as intended. That is because only actions that qualify as the performance of a “function or duty of a vacant office” can be invalidated, and the FVRA adopts an exceedingly narrow definition of “function or duty.” The FVRA defines a “function or duty” as “any function or duty of the applicable office that” is established by statute or regulation and required by such statute or regulation “to be performed by the applicable officer (and only that officer).”[7](#_ednref7) The parenthetical “(and only that officer)” has been interpreted to mean that if a duty is delegable, it doesn’t qualify as a “function or duty” for purposes of the FVRA and is thus exempt from FVRA enforcement.[8](#_ednref8)

Six years after the FVRA was passed, the D.C. Circuit adopted a very broad view as to which powers are delegable in a case called *U.S. Telecom*. The court held that when a statute sets out an officer’s authorities, “subdelegation to a subordinate federal officer … is presumptively permissible absent affirmative evidence of a contrary congressional intent.”[9](#_ednref9) Relying on this presumption, the executive branch has repeatedly argued in court that various official duties are subdelegable and thus exempt from the FVRA.[10](#_ednref10) And when a power of a vacant office is exempt from the FVRA, that power can be performed by anyone without fear of invalidation.

As Professor Nina Mendelson has explained, the executive branch has exploited this loophole to “effectively create\[\] a new class of pseudo-acting officials subject to neither time nor qualifications limits.”[11](#_ednref11) These pseudo-acting officials are selected without using the FVRA and are usually not eligible to serve under the FVRA, either because they lack the FVRA’s required qualifications or because the FVRA’s time limit has run out. They are typically delegated all of a vacant office’s duties and thus called officials “performing the duties of \[fill in Senate-confirmed position\].”[12](#_ednref12) These pseudo-actings have all the same power as FVRA-compliant acting officers, but with none of the tenure or qualification restrictions.[13](#_ednref13)

The use of these pseudo-actings is widespread. In September 2020, the Constitutional Accountability Center identified 21 positions where the time limits of the FVRA had run out and officials were self-described on agency websites as “performing the duties” (or equivalent language) of the position.[14](#_ednref14) Professor Anne Joseph O’Connell has identified at least 73 positions that had no confirmed or acting officer in April 2019, noting that for each of them “the functions of the vacant position presumably were delegated to someone.”[15](#_ednref15) In other words, they were presumably filled by pseudo-actings.

The widespread use of this maneuver means that FVRA deadlines have been increasingly ignored. As Professor O’Connell notes, “\[i\]n the first year of an Administration, one sees a lot of ‘acting’ titles on agency websites. After the Act’s time limits run out, one sees ‘performing the functions of \[a particular vacant office\]’ language instead.”[16](#_ednref16) It also means that those who could never win Senate confirmation can nonetheless wield the power of an office indefinitely as a pseudo-acting.[17](#_ednref17)

These pseudo-actings wield important power. During the Trump Administration, “numerous Federal Register notices of both proposed and final rules” were signed by pseudo-actings.[18](#_ednref18) And so long as the use of pseudo-actings under this “delegable duties exception” is widespread, alterations to the tenure or qualification requirements in the FVRA will not get to the heart of the problem. Even if the FVRA were amended so that its time limits were shortened or the minimum qualifications to be named an acting officer were raised, the delegable duties exception would still allow the executive branch to bypass the FVRA entirely. So long as that loophole persists, changing the FVRA’s time limits will only change when the titles on agency websites change from “acting” to “performing the functions and duties.”

## A Loophole that Congress Never Intended

This is not how Congress expected the delegable duties exception to operate. Early FVRA drafts allowed agency heads to perform any function or duty of a vacant office that was subject to the enforcement mechanism.[19](#_ednref19) But some Senate offices were still concerned that the enforcement mechanism might overwhelm the bandwidth of an agency head. They worried that government duties might go unperformed if an agency head did not have enough hours in the day to carry out all the duties of every office lacking a confirmed or acting officer.[20](#_ednref20)

The delegable duties exception was proposed to address these concerns. The intention was to exempt lower-level duties, so that they would *not* be restricted solely to the agency head. The FVRA’s drafters expected that the delegable duties exception would thus allow a necessary division of labor between the agency head and subdelegatees. As one Senate office memo put it, “\[p\]aperwork can get signed by an agency head, but what about policy setting or rule writing or program operations that goes on under some office?”[21](#_ednref21) The delegable duties exception was created so that the latter types of functions, those lower-level functions that were routinely subdelegated in the normal course of agency operations, could continue to be performed by subdelegatees during an extended vacancy. As one Senate office memo summed up, “even though the agency head would have to sign off on a final policy while that position was vacant; the agency head would not also have to develop the policy.”[22](#_ednref22) Senator Thompson, introducing the bill on the Senate floor, similarly described the delegable duties exception as applying to “the routine functions of the office.”[23](#_ednref23)

The FVRA’s drafters thus did *not* anticipate that final decisionmaking authority to sign off on final agency actions would be routinely interpreted as subdelegable and thus exempt from FVRA enforcement. As noted above, it was only after the D.C. Circuit’s *U.S. Telecom* decision in 2004 that the executive branch began consistently arguing that the authority to take even final agency action is presumptively subdelegable and thus presumptively exempt from FVRA enforcement. That is the origin of today’s widespread use of pseudo-actings.

## The Solution: Eliminating the Nondelegable Duties Exception

The FVRA can be amended to limit the scope of the delegation loophole and incentivize permanent nominations. Doing so would also create a meaningful division of labor between the agency head and other subordinates during extended vacancies. The answer lies in an aspect of the FVRA that has not received enough attention: the limitation of enforcement to the invalidation of “action\[s\].”

The FVRA invalidates any “action taken by” an invalidly serving acting officer “in the performance of any function or duty of” the vacant office.[24](#_ednref24) The FVRA borrows the same definition of “action” that is found in the Administrative Procedure Act.[25](#_ednref25) Thus, an act taken by an invalidly serving acting officer is subject to invalidation only if it is *both* an “action” as defined by the APA *and* a performance of a “function or duty” as defined by the FVRA.

This means that no matter how the FVRA defines a “function or duty,” most of the day-to-day routine functions of an office cannot be invalidated by the FVRA because they are not “agency actions” as defined by the APA. Drafting an internal deliberative memo on a policy question for a superior to review, for example, would not qualify as an “action.”[26](#_ednref26)

In addition, there is a further practical limitation that makes it even more difficult for the FVRA to invalidate “routine” functions. Since a legal challenge is the only means of implementing the FVRA’s enforcement mechanism, an action that can’t be challenged in court is effectively exempt from FVRA enforcement.[27](#_ednref27) In practice, such actions will generally be limited to “final” actions,[28](#_ednref28) actions that are necessary antecedents of later final actions,[29](#_ednref29) actions that can be collaterally attacked during enforcement proceedings, or actions that are important enough for Congress to have created a specific cause of action allowing them to be reviewed in court.

Simply amending the FVRA to eliminate the delegable duties exception would thus assign a small but meaningful subset of the functions of a vacant office to the agency head alone when there is no valid acting officer: those functions that qualify as “actions” *and* that can be challenged in court. This reform could be accomplished by changing the FVRA’s definition of a “function or duty” from any duty “required” by statute or regulation “to be performed by the applicable officer (and only that officer)” to instead any duty “assigned” by statute or regulation “to be performed by the applicable officer,” period. While a few additional amendments to the FVRA would be warranted to avoid any unintended consequences,[30](#_ednref30) eliminating the four parenthetical words “(and only that officer)” is the core solution.

This change would achieve the key goal of creating an enforcement mechanism that encourages permanent nominations by means of some inconvenience to an agency without ratcheting that inconvenience up to such a level that it creates agency paralysis. With the delegation loophole closed, the Vacancies Act would finally achieve the balance that Congress intended: a text that cannot be exploited to install unconfirmed acting officers indefinitely, but that also provides enough alternatives to ensure that the work of an office continues even if it is vacant for a lengthy period.

##### About the Author 

[![Thomas Berry](/sites/cato.org/files/styles/author_picture/public/2026-02/2025-10-16-Thomas%20Berry-sq_0.jpg?itok=SW7WagUw)](/people/thomas-berry) 

##### [Thomas A. Berry](/people/thomas-berry)

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

[ 

](https://x.com/Thomas_A_Berry) [ 

](mailto:tberry@cato.org) 

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##### Notes

[1](#_edn1) This statement is adapted from Thomas Berry, *Closing the Vacancies Act’s Biggest Loophole*, Cato Institute Briefing Paper No. 131 (2022), [https://​www​.cato​.org/​b​r​i​e​f​i​n​g​-​p​a​p​e​r​/​c​l​o​s​i​n​g​-​v​a​c​a​n​c​i​e​s​-​a​c​t​s​-​b​i​g​g​e​s​t​-​l​o​o​phole](https://www.cato.org/briefing-paper/closing-vacancies-acts-biggest-loophole).

[2](#_edn2) *See* 5 U.S.C. §§ 3345; 3346.

[3](#_edn3) *See* S. Rept. 105–250, Federal Vacancies Reform Act of 1998 \[hereinafter “FVRA Senate Report”\] at 7 (“If the purpose of the Vacancies Act is to limit the President’s power to designate temporary officers, a position requiring Senate confirmation may not be held by a temporary appointment for as long as the President unilaterally decides.”),[https://​www​.con​gress​.gov/​1​0​5​/​c​r​p​t​/​s​r​p​t​2​5​0​/​C​R​P​T​-​1​0​5​s​r​p​t​2​5​0.pdf](https://www.congress.gov/105/crpt/srpt250/CRPT-105srpt250.pdf).

[4](#_edn4) *See, e.g.*, 144 Cong. Rec. S11,028 (Sept. 28, 1998) (statement of Senator Thurmond) (“Because there is no consequence if the Vacancies Act is violated today, the Executive Branch simply ignores it. \[An enforcement mechanism\] is essential for the Act to be followed in the future.”).

[5](#_edn5) 5 U.S.C. § 3348(d)(1).

[6](#_edn6) *See* FVRA Senate Report at 19–20 (“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.”).

[7](#_edn7) 5 U.S.C. § 3348(a)(2).

[8](#_edn8) *See, e.g.*, *Stand Up for California! v. U.S. Dept. of Interior*, 298 F. Supp. 3d 136, 150 (D.D.C. 2018).

[9](#_edn9) *U.S. Telecom Ass’n v. FCC*, 359 F.3d 554, 565 (D.C. Cir. 2004).

[10](#_edn10) *See, e.g.*, U.S. Resp. in Opp. to Def. Mot. to Dismiss at 5, *United States v. Village of Tinley Park*, No. 16-c-10848 (N.D. Ill. July 17, 2017), ECF No. 16; Fed. Defs.’ Opp. to Pl. Mot. for Summ. J. at 12, *Stand Up for California! v. U.S. Dept. of Interior*, 298 F. Supp. 3d 136 (D.D.C. 2018) (No. 1:17-cv-00058-TNM), ECF No. 40; Def. Reply in Supp. of Mot. for Summ. J. at 18, *ASISTA Immigration Assistance v. Albence*, No. 3:20-cv-00206-JAM (D. Conn., filed June 23, 2020), ECF No. 49.

[11](#_edn11) Nina Mendelson, *The Permissibility of Acting Officials: May the President Work Around Senate Confirmation?*, 72 Admin. L. Rev. 533, 605 (2020).

[12](#_edn12) Anne Joseph O’Connell, Admin. Conference of the U.S., Acting Agency Officials and Delegations of Authority, at 63 (2019) \[hereinafter O’Connell, ACUS Report\].

[13](#_edn13) *See id. at 28 (“If the duties of the … position are not exclusive to that job … an acting official and an official performing the delegated functions have the same authority, although they have different titles.… The main difference is that delegations can operate far longer than acting officials can serve.”).

[14](#_edn14) Becca Damante, *At Least 15 Trump Officials Do Not Hold Their Positions Lawfully*, Just Security (Sept. 17, 2020), [https://​www​.just​se​cu​ri​ty​.org/​7​2​4​5​6​/​a​t​-​l​e​a​s​t​-​1​5​-​t​r​u​m​p​-​o​f​f​i​c​i​a​l​s​-​d​o​-​n​o​t​-​h​o​l​d​-​t​h​e​i​r​-​p​o​s​i​t​i​o​n​s​-​l​a​w​fully](https://www.justsecurity.org/72456/at-least-15-trump-officials-do-not-hold-their-positions-lawfully).

[15](#_edn15) O’Connell, ACUS Report, at 19*; see also Mendelson, *Permissibility of Acting Officials*, at 541 (“\[E\]ven if an office appears ‘empty,’ with neither a Senate-confirmed nor an acting official, someone often purports to exercise its authority.”).

[16](#_edn16) O’Connell, ACUS Report, at 11.

[17](#_edn17) *See id.* at 29 (“In some cases, delegations appear to substitute for nominations.”).

[18](#_edn18) Mendelson, *Permissibility of Acting Officials*, at 562.

[19](#_edn19) This allowance was included in the final enacted version of the FVRA. *See* 5 U.S.C. § 3348(b)(2).

[20](#_edn20) *See* Stephen Migala, *The Vacancies Act and an Acting Attorney General*, 36 Ga. St. U. L. Rev. 699 Appendix A (2020) at A‑31; *see also* *id.* at A‑40 (“\[P\]resumably many statutes or regulations vest numerous duties in each officer, making it potentially very onerous to require the Department head to perform all of those duties in the case of a vacancy.”).

[21](#_edn21) *Id.* at A‑52.

[22](#_edn22) *Id.* at A‑53; *see also* FVRA Senate Report at 31 (additional views) (providing a similar example).

[23](#_edn23) 144 Cong. Rec. S6,414 (June 16, 1998) (statement of Senator Thompson).

[24](#_edn24) 5 U.S.C. § 3348(d)(1).

[25](#_edn25) *Id. § 3348(a)(1).

[26](#_edn26) *See* Jen Kirby, *A Top Official at the Justice Department Is Resigning. The Federal Vacancies Act Has a Solution for That.*, Vox (Feb. 9, 2018), [https://​www​.vox​.com/​2​0​1​8​/​1​/​3​0​/​1​6​9​2​4​7​6​4​/​t​r​u​m​p​-​g​o​v​e​r​n​m​e​n​t​-​a​p​p​o​i​n​t​e​e​s​-​v​a​c​a​n​c​i​e​s-act](https://www.vox.com/2018/1/30/16924764/trump-government-appointees-vacancies-act) (Anne Joseph O’Connell: “How you challenge Vacancies Act violations is pretty tricky.… \[I\]n general, it can be hard to find an actual action, even though they may be doing things, but it might not come in a particular concrete action; it might be giving advice or whatever.”).

[27](#_edn27) *See* Mendelson, *Permissibility of Acting Officials*, at 598 (noting that “judicial review provides only a very limited check” on the actions of unconfirmed officials and that judicial review “typically is available only for final agency actions, such as rulemaking or adjudication”).

[28](#_edn28) The Supreme Court has held an action is “final” if it “mark\[s\] the consummation of the agency’s decisionmaking process” and is an action “by which rights or obligations have been determined, or from which legal consequences will flow.” *Bennett v. Spear*, 520 U.S. 154, 177–78 (1997).

[29](#_edn29) *See, e.g.*, *SW General v. NLRB*, 796 F.3d 67, 72 (D.C. Cir. 2015), aff’d, 137 S. Ct. 929 (2017) (invalidating a final NLRB order \[reviewable under 29 U.S.C. § 160(f)\] because the antecedent complaint \[a non-final agency action\] was issued in violation of the FVRA).

[30](#_edn30) *See* Berry, *Closing the Vacancies Act’s Biggest Loophole*, at 5–6.

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