April 17, 2021

The Vacancies Act

The current Vacancies Act, passed in 1998, is the latest iteration in an ongoing-struggle to balance the need for efficiency and continuity with the requirement that the Senate approve presidential appointments found in Article 2, ยง 2 of the U.S. Constitution.

The statutory scheme is confusing, in that there is often more than one method by which a vacancy can be filled. It also allows the president to staff key positions for up to 17 months at a time with “acting heads” who have never been senatorially confirmed in their positions. If a president is willing to openly game the system, he can make do with unconfirmed executive officers for years.

Should the Vacancies Act be reformed both to rationalize the method by which vacancies are filled and to ensure that the constitutional requirement of senate confirmation is respected? What is the best method to do this without improperly impinging on the President’s executive branch authority?