Some “Acting” Officials Will Soon Lose Authority

Some government officials who are serving on an “acting” basis because a permanent replacement has not yet been named will lose their ability to function this month when their legal authority is nullified under the terms of the Vacancies Act.

In the Trump Administration there are hundreds of government agency positions requiring Senate confirmation that have gone unfilled. In many cases, their responsibilities have been assumed by “acting” officials.

But by law, that arrangement can only be temporary. The Federal Vacancies Reform Act of 1998 specifies that “acting” officers can fill positions requiring confirmation for no more than 210 days. If the position is vacant at the start of a new Administration, an extension of 90 days is allowed, for a total of 300 days.

The 300 day period from Inauguration Day last January 20 will end on November 16, 2017. After that, certain acting officials will no longer be able to carry out their duties.

“If the acting officer remains in office and attempts to perform a nondelegable function or duty — one that a statute or regulation expressly assigns to that office — that action will ‘have no force or effect’,” according to a new brief from the Congressional Research Service.

See Out of Office: Vacancies, Acting Officers, and Day 301, CRS Legal Sidebar, November 1, 2017. See also The Vacancies Act: A Legal Overview, October 30, 2017.

President Trump does not appear to be concerned about the matter. Asked about high level vacancies in the State Department last week, he told Laura Ingraham of Fox that most of the government positions awaiting confirmed nominees were superfluous. “I’m the only one that matters,” he said.