Appointment and Confirmation of Executive
Branch Leadership: An Overview
Updated March 17, 2021
Congressional Research Service
https://crsreports.congress.gov
R44083

Appointment and Confirmation of Executive Branch Leadership: An Overview

Summary
The Constitution divides the responsibility for populating the top positions in the executive
branch of the federal government between the President and the Senate. Article II, Section 2
empowers the President to nominate and, by and with the advice and consent of the Senate, to
appoint the principal officers of the United States, as wel as some subordinate officers.
These positions are general y fil ed through the advice and consent process, which can be divided
into three stages:
1. The White House selects and clears a prospective appointee before sending a
formal nomination to the Senate.
2. The Senate determines whether to confirm a nomination. For most nominations,
much of this process occurs at the committee level.
3. The confirmed nominee is given a commission and sworn into office, after which
he or she has full authority to carry out the duties of the office.
The President may also be able to fil vacancies in advice and consent positions in the executive
branch temporarily through other means. In some cases, the President may be able to designate an
official to serve in a vacant position on a temporary basis under the Federal Vacancies Reform
Act or under statutory authority specific to the position. Alternatively, if circumstances permit and
certain conditions are met, the President could choose to give a recess appointment to an
individual. Such an appointment would last until the end of the next session of the Senate. In
practice, recess appointments have become less common in recent years.
Congress has selectively included certain types of statutory provisions when establishing specific
executive branch positions. These provisions include those that require appointees to have
specified qualifications, set fixed terms of office, limit the circumstances under which the
President can remove an officeholder, specify how the chair of a collegial board or commission
wil be selected and may be removed, and al ow an incumbent to remain in office past the end of
a term until a successor is appointed (also referred to as a holdover provision). Although these
types of provisions may be found in the establishing statutes for a variety of positions, they are
particularly common for members of regulatory and other col egial boards and commissions. In
some cases, these types of provisions have influenced the dynamics of the Senate confirmation
process. They may also be factored into the selection and vetting process in the Administration.
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Appointment and Confirmation of Executive Branch Leadership: An Overview

Introduction
The Constitution divides the responsibility for populating the top positions in the federal
government between the President and the Senate. The appointments clause (Article II, Section 2)
empowers the President to nominate and, by and with the advice and consent of the Senate, to
appoint the principal officers of the United States, as wel as some subordinate officers.1
Specifical y, the appointments clause provides that
[The President] shall nominate, and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law.
The Constitution further authorizes Congress to vest the appointment of “inferior Officers … in
the President alone, in the Courts of Law, or in the Heads of Departments.” Thus, some high-
ranking positions in the federal government may be fil ed through means other than presidential
appointment with Senate confirmation, and Congress has created many such positions in statute.2
But if Congress does not alter the method of appointment, inferior officers are also appointed
through advice and consent.
Officers of the United States are those appointees who are “exercising significant authority
pursuant to the laws of the United States” (emphasis added)3 in a “‘continuing’ position
established by law.”4
This report provides an overview of appointments of principal and inferior officers through
appointment by the President with the advice and consent of the Senate. These positions are often
referred to as “advice and consent positions” or “PAS positions.”5 Inferior officer positions that

1 For a constitutional and historical overview of the appointment process, see Michael J. Gerhardt, The Federal
Appointm ents Process: A Constitutional & Historical Analysis (Durham, NC: Duke University Press, 2003). See also
CRS, “Article II, Section 2, Clause 3,” Constitution Annotated, https://constitution.congress.gov/browse/article-2/
#II_S2_C2.
2 For information on the distinction between principal and inferior officers of the United States, see CRS, “Appointing
‘Inferior Officers,’” Constitution Annotated, https://constitution.congress.gov/browse/essay/artII-S2-C2-2-1-4/
ALDE_00001141/. One study found that the President was authorized by law to fill 321 positions government -wide
without the advice and consent of the Senate (U.S. Government Accountability Office, Characteristics of Presidential
Appointm ents That Do Not Require Senate Confirm ation, GAO-13-299R, March 1, 2013, http://www.gao.gov/
products/GAO-13-299R). T he Chief Justice is directed in statute to appoint certain officers, such as the director of the
Administrative Office of the United States Courts (28 U.S.C. §601). For more information on the appointing power of
the Chief Justice, see James E. Pfander, “T he Chief Justice, the Appointment of Inferior Officers, and the ‘Court of
Law’ Requirement,” Northwestern University Law Review, vol. 107, no. 3 (2013), pp. 1125-1180,
http://www.law.northwestern.edu/lawreview/v107/n3/1125/LR107n3Pfander.pdf. Certain positions, including several
thousand in the Senior Executive Service (SES), are appointed by agency heads, as provided by law. For more
information about the SES, see CRS In Focus IF11743, The Senior Executive Service: An Overview, by Maeve P.
Carey; and the Office of Personnel Management’s overview of the SES on its website at https://www.opm.gov/policy-
data-oversight/senior-executive-service/.
3 Buckley v. Valeo, 424 U.S. 1, 126 (1976). For further information on the distinction between officers and employees
of the United States, see CRS, “ Distinguishing Between Officers and Non-Officers,” Constitution Annotated,
https://constitution.congress.gov/browse/essay/artII-S2-C2-2-1-3-2/ALDE_00001139/.
4 Lucia v. SEC, 138 S. Ct. 2044, 2051 (quoting United States v. Germaine, 99 U.S. 508, 511-12 (1878)).
5 T his abbreviation stands for Presidential Appointment with Senate Confirmation. U.S. Congress, House Committee
on Oversight and Reform, United States Governm ent Policy and Supporting Positions, committee print, prepared by
U.S. Office of Personnel Management, 116 th Cong., 2nd sess., December 2020 (Washington: GPO, 2020), p. v.
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do not require Senate advice and consent are beyond the scope of this report, as are positions in
the federal judiciary.6
The report begins by explaining the three distinct stages that comprise the advice and consent
process. These three stages are selection and nomination, Senate consideration, and appointment.
The report then provides an overview of options that may be available to the President for
temporarily fil ing vacant advice and consent positions, including through use of authorities
available under the Federal Vacancies Reform Act and the recess appointments clause of the
Constitution. Final y, it discusses certain types of statutory provisions that Congress has applied
selectively to specific advice and consent positions in the executive branch: qualifications for
officeholders, fixed terms of office, limitations on presidential removal, appointment and removal
of chairs, and holdover provisions.
Appointments Under the Advice and
Consent Process
The appointment process for executive branch positions is general y considered to have three
stages: selection and nomination by the President, consideration by the Senate, and appointment
by the President.
Selection, Clearance, and Nomination
In the first stage, the White House selects and clears a prospective appointee before sending the
formal nomination to the Senate. With the assistance of, and preliminary vetting by, the White
House Office of Presidential Personnel, the President selects a candidate for the position.7
Members of Congress and interested parties sometimes have recommended candidates for
specific PAS positions, particularly for positions located within a Member’s state. Members have
offered their suggestions by letter and by contact with a White House liaison.8 In general, the
President is under no obligation to follow such recommendations. In the case of the Senate,
however, it has been argued that Senators are constitutional y entitled, by virtue of the advice and
consent clause noted above, to provide advice to the President regarding his selection, although
the extent of this entitlement is a matter of some debate.9 As a practical matter, when Senators
have perceived insufficient pre-nomination consultation has occurred, they have sometimes

6 For information about judicial appointments, see CRS Report R44235, Supreme Court Appointment Process:
President’s Selection of a Nominee, by Barry J. McMillion; CRS Report R44236, Supreme Court Appointment
Process: Consideration by the Senate Judiciary Com m ittee, by Barry J. McMillion; CRS Report R44234, Suprem e
Court Appointm ent Process: Senate Debate and Confirm ation Vote, by Barry J. McMillion; CRS Report R43762, The
Appointm ent Process for U.S. Circuit and District Court Nom inations: An Overview, by Barry J. McMillion; and CRS
Report R44975, The Blue Slip Process for U.S. Circuit and District Court Nom inations: Frequently Asked Questions,
by Barry J. McMillion.
7 T he current personnel selection and clearance process described here is the result of a number of historical
developments in the post –World War II era in the White House’s Executive Office of the President. For more
information about the historical development of personnel recruiting and other practices, see G. Calvin Mackenzie, The
Politics of Presidential Appointm ents (New York: T he Free Press, 1981); and White House T ransition Project Report,
“T he Office of Presidential Personnel,” 2020, https://whitehousetransitionproject.org/transition-resources-2/office-
briefs/.
8 Council for Excellence in Government’s Presidential Appointee Initiative, A Survivor’s Guide for Presidential
Nom inees, Brookings Institution, November 2000, pp. 31 -32.
9 See, for example, Gerhardt, The Federal Appointments Process, pp. 29-34.
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exercised their procedural prerogatives to delay, or even effectively block, consideration of a
nomination.10
During the clearance process,11 the candidate prepares and submits several forms, including the
“Public Financial Disclosure Report” (OGE 278e),12 the “Questionnaire for National Security
Positions” (SF 86), and a supplement to SF 86 (“86 Supplement”). Some past Administrations
have also required a White House Personal Data Statement or similar questionnaire providing
information for White House use.13 The clearance process often includes a background
investigation conducted by the Federal Bureau of Investigation (FBI), which prepares a report
that is delivered to the White House. It also includes a review of financial disclosure materials by
the Office of Government Ethics (OGE) and an ethics official for the agency to which the
candidate is to be nominated.14 If conflicts of interest are found during the background
investigation, OGE and the agency ethics officer may work with the candidate to mitigate the
conflicts. At the completion of the clearance process, the nomination is ready to be submitted to
the Senate.
The selection and clearance stage has often been the longest part of the appointment process.
There have been lengthy delays at times, particularly when many candidates have been processed
simultaneously, such as at the beginning of an Administration or where conflicts needed to be
resolved. Candidates for higher-level positions have often been accorded priority in this process.
In an effort to reduce the elapsed time between a new President’s inauguration and the
appointment of his or her national security team, Congress has amended the Presidential
Transition Act of 1963 several times in recent years.15 Among other provisions, these
amendments encourage a President-elect to submit, for security clearance, potential nominees to

10 See, for example, Gerhardt, The Federal Appointments Process, pp. 152-153.
11 T he White House process for clearing individuals before nominating them is distinct from the process that
individuals undertake to obtain a formal security clearance to be eligible for access to classified information. Regarding
the latter process, see CRS Report R43216, Security Clearance Process: Answers to Frequently Asked Questions, by
Michelle D. Christensen.
12 For more information about OGE Form 278e and related financial disclosure requirements, see U.S. Office of
Government Ethics, Nom inee Guide, 2020, https://www.oge.gov/web/oge.nsf/0/
77E34818F9A59979852585B6005A24BB/$FILE/Guide%20for%20Nominees%202020_accessible.pdf.
13 More detailed information about the selection and clearance process for nominees to executive branch positions can
be found in a November 2012 study that was conducted pursuant to P.L. 112-166, the Presidential Appointment
Efficiency and Streamlining Act. See Working Group on Streamlining Paperwork for Executive Nominations,
Stream lining Paperwork for Executive Nom inations: Report to the President and the Chairs and Ranking Mem bers of
the Senate Com m ittee on Hom eland Security and Governm ental Affairs and the Senate Com m ittee on Rules and
Adm inistration, November 2012, http://www.hsgac.senate.gov/download/report -of-working-group-on-streamlining-
paperwork-for-executive-nominations-final.
See also National Academy of Public Administration, A Survivor’s Guide for Presidential Nom inees, 2013 ed.,
http://www.napawash.org/wp-content/uploads/2013/05/SurvivorsGuide2013.pdf; and Partnership for Public Service
Center for Presidential T ransition and Boston Consult ing Group, Presidential Transition Guide: A Com prehensive
Guide to the Activities Required During the Transition , 4th ed., April 2020, https://presidentialtransition.org/
publications/presidential-transition-guide/.
14 OGE has a variety of materials addressing this process available on the portion of its website relating to presidential
transitions; see https://www.oge.gov/web/oge.nsf/Resources/Presidential%20Election%20Readiness. See, in particular,
OGE, Nom inee Guide, 2020, https://www.oge.gov/web/oge.nsf/0/77E34818F9A59979852585B6005A24BB/$FILE/
Guide%20for%20Nominees%202020_accessible.pdf; and OGE, The Presidential Transition Guide, 2020,
https://www.oge.gov/web/oge.nsf/0/29BDCA10DAA7FFC6852585BA006B6ACC/$FILE/
T ransition%20Guide_2020.pdf.
15 3 U.S.C. §102 note. For more on this statute, see CRS Report R46602, Presidential Transition Act: Provisions and
Funding, by Henry B. Hogue.
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high-level national security positions as soon as possible after the election.16 A separate provision
of law, enacted as part of the Federal Vacancies Reform Act of 1998 (Vacancies Act), lengthens
the potential duration of a temporary appointment during presidential transitions, facilitating
control of a new President over the executive branch while the appointment process proceeds.
(See section below entitled “Temporarily Fil ing Advice and Consent Positions.”)17
A nominee has no legal authority to assume the duties and responsibilities of the position by
virtue of the nomination. Authority to act comes once the nominee has received Senate
confirmation and presidential appointment or through another method of assigning duties, such as
a designation of an acting official under the Vacancies Act, a recess appointment, or a
redelegation of functions.18
Senate Consideration
In the second stage of the appointment process, the Senate alone determines whether or not to
confirm a nomination.19 The Senate’s action on a nomination varies, depending largely on the
importance of the position involved, existing political circumstances, and policy implications.
Many presidential appointees are confirmed routinely by the Senate, without public debate. Other
appointees receive more attention from Congress and the media through hearings, investigations,
and floor debate. Historically, the Senate has shown particular interest in nominees’ views and
how they are likely to affect public policy.20 Two other factors have sometimes affected the
examination of a nominee’s personal and professional qualities: whether the President’s party
controlled the Senate and the degree to which the President became involved in supporting the
nomination.
Much of the Senate confirmation process occurs at the committee level. Administratively,
nominations are received by the Senate executive clerk, who usual y arranges for the referral of
the nominations to committee according to the Senate rules and precedents.21 Committee
nomination activity has general y included investigation, hearing, and reporting stages. As part of
investigatory work, committees have drawn on information provided by the White House, as wel
as information they themselves have collected. Some committees have held hearings on nearly al
nominations; others have held hearings for only some. Hearings provide a public forum to discuss

16 T he Presidential T ransition Act , as amended, also authorizes the provision by the incumbent Administration of
certain pre-election transition support for eligible presidential candidates to facilitate early selection and internal vetting
of potential nominees. It authorizes eligible candidates to fund pre-election transition activities through their
campaigns.
17 5 U.S.C. §3349a(b). Notably, this statute does not apply to regulatory and other collegial boards and commissions.
18 In Buckley v. Valeo, the Supreme Court held that “any appointee exercising significant authority pursuant to the laws
of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed” in
Article II, Section 2, clause 2, of the Constitution (424 U.S. 1, 126 (1976)). T his would appear to preclude consultants
and nominees, who have not been so appointed, from exercising such authority. T he exclusivity provision of the
Vacancies Act (5 U.S.C. §3347) is consistent with this interpretation. It establishes the act as the “ exclusive means for
temporarily authorizing an acting official to perform the functions and duties of ” most advice and consent positions
unless otherwise expressly provided in law or unless the President uses his recess appointment authority.
19 For further information on the procedures of this stage of the appointment process, see CRS Report RL31980, Senate
Consideration of Presidential Nom inations: Com m ittee and Floor Procedure , by Elizabeth Rybicki.
20 Mackenzie, The Politics of Presidential Appointments, pp. 97-189.
21 Formally, the presiding officer of the Senate makes the referrals. For more information, see Floyd M. Riddick and
Alan S. Frumin, Riddick’s Senate Procedure: Precedents and Practices, 101st Cong., 2nd sess., S.Doc. 101-28
(Washington: GPO, 1992), pp. 1154 -1158; and CRS Report RL31980, Senate Consideration of Presidential
Nom inations: Com m ittee and Floor Procedure, by Elizabeth Rybicki.
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a nomination and any issues related to the program or agency for which the nominee would be
responsible. Even where confirmation has been thought by most to be a virtual certainty, hearings
have provided Senators and the nominee with opportunities to go on the record with particular
views or commitments. Senators have used hearings to explore nominees’ qualifications,
articulate policy perspectives, or raise related oversight issues.
In response to an increasing perception among many Senators that processing and confirming
nominations to over 1,000 positions in the executive branch was becoming too burdensome, a
bipartisan effort was undertaken in 2011 to address how the Senate processes nominations.22 In
August 2011, the Senate agreed to S.Res. 116, a resolution “to provide for expedited Senate
consideration of certain nominations subject to advice and consent.” The procedure al ows certain
nominations to be eligible for consideration by the full Senate without formal committee action
(unless any Senator requests committee referral).23
With regard to each nomination that is referred to a committee, the committee may decline to act
on it at any point—upon referral, after investigation, or after a hearing. If the committee votes to
report a nomination to the full Senate, it has three options: It may report the nomination
favorably, unfavorably, or without recommendation. A failure to obtain a majority on the motion
to report means the nomination wil not be reported to the Senate at that time. Failure of a
nomination to make it out of committee has occurred for a variety of reasons, including
opposition to the nomination, inadequate amount of time for consideration of the nomination, or
factors that may not be directly related to the merits of the nomination. If the committee declines
to report a nomination, the Senate may, under certain circumstances, discharge the committee
from further consideration of the nomination in order to bring it to the floor.24
The Senate has historical y confirmed most, but not al , executive branch nominations. In rare
instances, a vote to confirm a nomination has failed on the Senate floor. Often, unsuccessful
nominations fail to be reported or discharged from committee, as just discussed. Sometimes,
however, a nomination is reported from committee but is not taken up on the floor of the Senate
because of opposition to it by one or more Senators. Because of this opposition, the Senate is not
able to consider and confirm the nomination by unanimous consent. The Senate wil sometimes

22 See Sen. Charles Schumer, remarks in Senate, Congressional Record, daily edition, vol. 157 (March 30, 2011), p.
S1988; and Sen. Susan Collins, remarks in Senate, Congressional Record, daily edition, vol. 157 (March 30, 2011), p.
S1990.
23 See CRS Report R46273, Consideration of Privileged Nominations in the Senate, by Michael Greene. For more
information on S.Res. 116, including the list of positions included in the resolution, see CRS Report R41872,
Presidential Appointments, the Senate’s Confirmation Process, and Changes Made in the 112th Congress, by Maeve P.
Carey.
In August 2011, the Senate also passed S. 679, the Presidential Appointment Streamlining and Efficiency Act of 2011,
which was enacted in August 2012 (P.L. 112-166). T hat law removed the requirement for the Senate’s advice and
consent for appointees to 163 positions in the executive branch , as well as hundreds of positions in the National
Oceanic and At mospheric Administration Officer Corps and the Public Health Service Officer Corps, authorizing the
President alone to appoint those officials. For more information, see CRS Report R41872, Presidential Appointm ents,
the Senate’s Confirmation Process, and Changes Made in the 112th Congress, by Maeve P. Carey; and U.S. Congress,
Senate Committee on Homeland Security and Governmental Affairs, Presidential Appointment Efficiency and
Streamlining Act of 2011, report to accompany S. 679, to reduce the number of executive positions subject to Senate
confirmation, 112th Cong., 1st sess., June 21, 2011, S.Rept. 112-24 (Washington: GPO, 2011).
24 In the 117th Congress, the Senate agreed to S.Res. 27, which creates a debate-limited motion to allow a majority of
the Senate to discharge a committee in the event there is a tie vote on a motion to report. For more information on the
discharge process, see CRS congressional distribution memorandum, “ Discharging a Committee from Consideration of
a Nomination: Current Procedure and Historical Practice,” by Michael Greene and Elizabeth Rybicki, May 31, 2017.
T his memorandum is available to congressional clients from its authors upon request.
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seek to overcome this opposition by invoking cloture.25 Historical y, invoking cloture was usual y
a difficult and time-consuming way to confirm a nomination. The support of three-fifths of the
Senate was needed to invoke cloture, and this vote would be followed by up to 30 hours of debate
on the nomination before a vote on confirmation itself. In November 2013, the Senate
reinterpreted its rules to mean that only a simple majority of those Senators voting is required to
invoke cloture on any executive branch nomination.26 The number of hours of post-cloture debate
was unchanged by the 2013 precedent, but in 2019 the Senate reinterpreted its rules again to
reduce post-cloture consideration to two hours for al but the highest level of executive branch
nominations.27
Senate rules provide that “nominations neither confirmed nor rejected during the session at which
they are made shal not be acted upon at any succeeding session without being again made to the
Senate by the President.”28 In practice, such nominations have sometimes been returned to the
President at the end of the first session and are always returned to the President at the end of the
Congress. Nominations may also be returned automatical y to the President at the beginning of a
recess of more than 30 days, but the Senate rule providing for this return has often been waived.29
Appointment
In the final stage of the appointment process, the confirmed nominee is given a commission
signed by the President (which bears the Great Seal of the United States) and sworn into office.30
The President may sign the commission at any time after confirmation, at which time the
appointment becomes official. Once the appointee is given the commission and sworn in, he or
she has full authority to carry out the responsibilities of the office.

25 In brief, cloture is a Senate procedure that limits further consideration of a pending nomination or other matter to a
specified number of hours. For more information on cloture attempts on nominations, see CRS Report RL31980,
Senate Consideration of Presidential Nom inations: Com m ittee and Floor Procedure , by Elizabeth Rybicki.
26 T his 2013 reinterpretation applied to the consideration of all nominations except for nominations to the Supreme
Court. See CRS Report R43331, Majority Cloture for Nom inations: Im plications and the “Nuclear” Proceedings of
Novem ber 21, 2013, by Valerie Heitshusen. In 2017, however, the Senate reinterpreted its rules to allow a simple
majority of those Senators voting to invoke cloture on nominations to the Supreme Court as well. See CRS Report
R44819, Senate Proceedings Establishing Majority Cloture for Suprem e Court Nom inations: In Brief, by Valerie
Heitshusen.
27 T he majority leader made a point of order that “ postcloture time under rule XXII for all executive branch
nominations other than a position at level 1 of the Executive Schedule under section 5312 of title 5 of the United States
Code is 2 hours.” T he presiding officer did not sustain the point of order. T he majority leader appealed the ruling of the
chair, and the Senate voted 51-48 to reverse the ruling. Congressional Record, daily edition, vol. 165 (April 3, 2019), p.
S2220. For more information, see CRS Report RL31980, Senate Consideration of Presidential Nom inations:
Com m ittee and Floor Procedure, by Elizabeth Rybicki, pp. 11-12.
28 T he rule may be found in U.S. Congress, Senate Committee on Rules and Administration, Senate Manual, 112th
Cong., 1st sess., S.Doc. 112-1 (Washington: GPO, 2011), p. 58, Rule XXXI, paragraph 6, of the Standing Rules of the
Senate.
29 See CRS Report R46664, Return of Nominations to the President under Senate Rule XXXI, by Michael Greene. For
an example of a waiver of the rule, see Sen. Harry Reid, “ Nominations in Status Quo,” Congressional Record, daily
edition, vol. 158 (August 2, 2012), p. S6006 .
30 See CRS, “Legal Requirement When Appointing an Officer,” Constitution Annotated,
https://constitution.congress.gov/browse/essay/artII-S2-C2-2-1-3-1/ALDE_00001138/. See also 5 U.S.C. §3331 and 5
U.S.C. §§2901-2903.
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Temporarily Filling Advice and Consent Positions
The Constitution also empowers the President to make a limited-term appointment to fil a
vacancy without Senate confirmation when the Senate is in recess. Recess appointments expire at
the end of the following session of the Senate.31 Although recess appointments were common in
the past, Presidents now use this authority rarely, if ever. From the 110th Congress on, Congress
has regularly used specific scheduling practices in an attempt to prevent the President from
making recess appointments, and it appears that these practices have been effective in doing so.
More information about the recess appointment power and the evolution of its use and
curtailment may be found in other CRS reports.32
Congress has provided more limited statutory authority for fil ing vacant PAS positions on a
temporary basis, as wel . Under the Vacancies Act,33 when an executive agency position requiring
confirmation becomes vacant, it may be fil ed temporarily in one of three ways:
1. The first assistant to such a position may automatical y assume the functions and
duties of the office;
2. The President may direct any officer who is occupying a position requiring
Senate confirmation to perform those tasks; or
3. The President may select any officer or employee of the subject agency who is
occupying a position for which the rate of pay is equal to or greater than the
minimum rate of pay at the GS-15 level and who has been in that position for at
least 90 of the preceding 365 days.
A temporary appointment made under the Vacancies Act is initial y limited to 210 days from the
date of the vacancy, but the time periods for service are extended if the President submits a
nomination for the position. In addition, during a presidential transition, the 210-day restriction
period does not begin until either 90 days after the President assumes office or 90 days after the
vacancy occurs if the vacancy exists during a 60-day period beginning on Inauguration Day.
The Vacancies Act does not apply to positions on multimember boards or commissions that
govern independent establishments or government corporations.34
In some cases, Congress has expressly provided in statute for the temporary fil ing of vacancies in
a particular advice and consent position. General y, such provisions employ one or more of
several methods: (1) a specified official is automatical y designated as acting; (2) a specified
official is automatical y designated as acting, unless the President provides otherwise; (3) the
President designates an official to serve in an acting capacity; or (4) the head of the agency in
which the vacancy exists designates an acting official.35

31 U.S. Constitution, Art. II, §2, cl. 3. “T he President shall have Power to fill up all Vacancies that may happen during
the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
32 See CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by Henry B. Hogue; CRS Report
R42329, Recess Appointm ents Made by President Barack Obam a , by Henry B. Hogue; and CRS Report R43030, The
Recess Appointm ent Power After Noel Canning v. NLRB: Constitutional Im plications, by T odd Garvey and David H.
Carpenter.
33 P.L. 105-277, Div. C, T itle I, §151; 112 Stat. 2681-611; 5 U.S.C. §§3345-3349d.
34 For more on the Vacancies Act, see CRS Report R44997, The Vacancies Act: A Legal Overview, by Valerie C.
Brannon; and Anne Joseph O'Connell, Acting Agency Officials and Delegations of Authority, Administrative
Conference of the United States, December 1, 2019, https://www.acus.gov/report/final-report -acting-agency-officials.
35 See CRS Report RS21412, Temporarily Filling Presidentially Appointed, Senate-Confirmed Positions, by Henry B.
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When the time limitations of the Vacancies Act have been exhausted, Administrations have
sometimes arranged for the functions of a vacant office to be carried out indefinitely or for a
specified period by another individual, usual y the first assistant, pursuant to a delegation of
authority by the agency head.36 In such instances, the official carries out these functions without
assuming the vacant office. General y, these functions may include any except those few that are
statutorily vested specifical y, and only, in the vacant office (“non-delegable duties”).
Selectively Applied Statutory Provisions
Congress has selectively enacted certain types of statutory provisions when establishing specific
executive branch positions. These provisions pertain to qualifications, fixed terms of office,
limitations on presidential removal of an officeholder, chair selection and removal, and holdover
authority. Although these types of provisions may be found in the establishing statutes for a
variety of positions, they are particularly common for members of regulatory and other collegial
boards and commissions. In some cases, these types of provisions have influenced the dynamics
of the Senate confirmation process discussed above. They may also be factored into the selection
and vetting process in the Administration. Each of these statutory provision types is discussed
below.
Qualifications
In many instances, Congress has mandated that appointees to particular leadership positions meet
specified requirements. Some statutory qualification provisions, such as those for the
administrator of the Federal Emergency Management Agency (FEMA), require that appointees
have certain experience, skil s, or educational backgrounds that are associated with competence.37
Other qualification provisions address a variety of characteristics, such as citizenship status,
residency, or, for the purpose of maintaining political balance on regulatory boards, political party
affiliation. Congress has, however, used qualification provisions selectively: Most executive
branch positions do not have statutory qualifications.
Statutory qualifications associated with a particular position might affect the selection and Senate
consideration of nominees. The Administration’s selection process might be limited to a smal er
group of potential candidates for the position than would otherwise be the case. On one hand,
such a limitation might yield a nominee who has the profile envisioned when the office was
established. On the other hand, the statutory requirement might prevent the nomination of an
individual who did not meet one or more of the qualifications but is otherwise wel -suited for the
post. Should the President nominate an individual whose qualifications are perceived to fal short
of the statutory requirements, the Senate must then determine whether to take note of that fact and
whether to confirm the nominee nonetheless.38

Hogue.
36 See Anne Joseph O’Connell, Acting Agency Officials and Delegations of Authority.
37 Section 313 of T itle 6 of the United States Code provides that the FEMA administrator “shall be appointed by the
President, by and with the advice and consent of the Senate … from among individuals who have – (A) a demonstrated
ability in and knowledge of emergency management and homeland security; and (B) not less than 5 years of executive
leadership and management experience in the public or private sector.”
38 For an in-depth discussion of qualifications, see CRS Report RL33886, Statutory Qualifications for Executive
Branch Positions, by Henry B. Hogue.
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Most boards and commissions are required, by statute, to have a political balance among their
members (e.g., no more than three of five, or five of seven, may be from the same political party),
so the White House has often negotiated over nominations to these positions with leaders of the
opposition party in Congress. These negotiations involve both political and policy considerations,
especial y when the board or commission is involved in areas that, at the time, may be
particularly sensitive. This has sometimes resulted in a packaging process in which the President
has submitted several nominations together for positions on a particular board or commission, and
the Senate has then considered and confirmed them as a group.39
Fixed Terms and Removal Limitations
Some advice and consent positions have statutorily set terms of office, typical y periods of four to
seven years. Such a term may be set to coincide with the presidential election cycle, as it does for
the director of the Office of Personnel Management,40 or to overlap Administrations, as it does
with the director of the FBI.41 As discussed below, fixed terms are common for members of
collegial boards and commissions, and the terms of the members of such a body are often
designed to expire in a staggered manner.
Even though they have statutorily established terms of office, appointees to many fixed-term
positions serve at the pleasure of the President. This means that incumbents can be removed by
the President at any time for any reason (or no stated reason), as is the case with most presidential
appointments.42 Lacking protection from removal, incumbents in these positions may remain
subject to close guidance and direction from the President as wel as to removal at the time of a
presidential transition.43 A fixed term might not prevent the removal of an incumbent by the
President, but it might inhibit such an action, because it establishes the given period as the normal
or expected tenure of an appointee. The length of the term might also influence the independence
of the appointee from the President.44 An official serving a short term may be more susceptible to
presidential direction, especial y if he or she might be reappointed by that President. On the other
hand, an official whose term of office is longer than that of the President who appointed him or
her may be less likely to feel a sense of al egiance or commitment to the President’s successor.
In many instances where Congress has established a position with a fixed term, the statute
provides that the President may remove an incumbent from office only for cause. For example,
with regard to the Federal Energy Regulatory Commission, the United States Code provides that

39 For example, on September 23, 2013, the Senate, by unanimous consent, confirmed, en bloc, two nominees with
different political party affiliations to seats on the Federal Election Commission. T wo other nominations were also
confirmed during this process. See Senator Harry Reid, “Unanimous Consent Request —Executive Calendar,” remarks
in the Senate, Congressional Record, daily edition, vol. 159, part 126 (September 23, 2013), p. S6674. See also
Kenneth P. Doyle, “FEC Nominations of Goodman, Ravel Confirmed by Unanimous Senate Vote,” Bloomberg BNA
Money & Politics Report, September 23, 2013 (copy available from the authors to congressional clients upon request).
40 5 U.S.C. §1102.
41 28 U.S.C. §532 note. T he term of the director of the FBI is 10 years. See CRS Report R44842, FBI Director
Nom inations, 1973-2017, by Henry B. Hogue.
42 It has long been recognized that “the power of removal [is] incident to the power of appoint ment.” Ex Parte Hennen,
38 U.S. (13 Pet.) 230, 259 (1839).
43 By tradition, appointees to these positions usually step down when the app ointing President leaves office unless
asked to stay by the President -elect. Were an at -will appointee not to do so, the incoming President could remove him
or her upon taking office.
44 In the case of a commission, the longer the duration of the terms of its members, the lower the probability that one
President will have the opportunity to appoint all of its members.
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members “shal hold office for a term of 5 years and may be removed by the President only for
inefficiency, neglect of duty, or malfeasance in office.”45 Provisions such as this one limit the
ability of a President to remove, or threaten to remove, an appointee solely for political reasons.
Arguably, this is the characteristic with the most impact on the level of independence of an
agency’s leadership from the President’s direction. Many independent regulatory boards and
commissions have authorizing statutes with such provisions. Although such provisions are less
common in laws establishing single administrator-headed agencies, the organic statutes for four
of these organizations include them: the Social Security Administration, the Office of Special
Counsel, the Federal Housing Finance Agency (FHFA), and the Consumer Financial Protection
Bureau (CFPB).46 A 2020 Supreme Court ruling found the provision pertaining to the CFPB
unconstitutional.47 Although the for-cause removal provisions in the other three statutes remain
intact, their constitutionality may be drawn into question in future litigation.48
White House vetting and selection and Senate consideration of nominations to fixed-term
positions might entail a set of considerations different from those involving an appointment of
indefinite duration. Where incumbents are protected from at-wil presidential removal, they are
unlikely to be involuntarily removed from office. In addition, where the tenure of a nominee’s
appointment would outlast that of an incumbent President, those Senators not of the President’s
party might elect to prevent confirmation so as to preserve a vacancy that could be fil ed by an
incoming President of their party.
The fixed terms for the members of many federal boards and commissions have set beginning and
end dates irrespective of whether the posts are fil ed or when appointments are made.49 In such
cases, the term end dates of the various members are often staggered so that the terms do not
expire al at once. This is intended to minimize the occurrence of simultaneous board member
departures and thereby increase leadership continuity.
In the case of a position with a fixed term with set beginning and end dates, an individual is
nominated to a particular seat and a particular term of office. An individual may be nominated
and confirmed for a seat for the remainder of an unexpired term in order to replace an appointee
who has resigned (or died). Alternatively, an individual might be nominated for an upcoming term
with the expectation that the new term wil be underway by the time of confirmation.
Occasional y, where only a few months of the unexpired term remain, the President has submitted
two nominations of the same person simultaneously—the first to complete the unexpired term
and the second to complete the entire succeeding term of office.50

45 42 U.S.C. §7171(b)(1).
46 Unlike the other three agencies, CFPB is located within the Federal Reserve System (FRS). T he bureau has a
considerable amount of independence from FRS, however. See CRS In Focus IF10031, Introduction to Financial
Services: The Consum er Financial Protection Bureau (CFPB) , by Cheryl R. Cooper and David H. Carpenter.
47 Seila Law LLC v. Consumer Financial Protection Bureau , 140 S. Ct. 2183, 2192 (2020).
48 See CRS Legal Sidebar LSB10507, Supreme Court Rules CFPB Structure Unconstitutional: Implications for
Congress, by Jacob D. Shelly. A challenge to the FHFA removal provision was pending before the Supreme Court
during the October 2020 term. See U.S. Supreme Court, Patrick J. Collins, et al., Petitioners v. Janet L. Yellen,
Secretary of the T reasury, et al., Docket for 19 -422, https://www.supremecourt.gov/docket/docketfiles/html/public/19-
422.html.
49 For example, each of the five seats on the Equal Employment Opportunity Commission has a five -year term. Each
year on July 1, the term of one seat expires. On the followin g day the five-year clock for this seat’s next term begins,
regardless of whether the seat is occupied. In contrast, for a few agencies, such as the Chemical Safety and Hazard
Investigation Board, the full term begins to run when an appointee takes office, and it expires after the incumbent has
held the post for the requisite period of time.
50 For example, on August 2, 2017, President T rump submitted two nominations of Kevin J. McIntyre to be a member
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Appointment and Removal of Chairs
On some commissions, the chair is subject to Senate confirmation and must be appointed from
among the incumbent commissioners. If the President wishes to appoint someone who is not on
the commission to be chair, two nominations are submitted simultaneously for the nominee—one
for member and the other for chair. For many independent boards and commissions, the chair is
appointed from among the group’s members by the President alone without a separate
nomination. Often, the President wil make his intentions clear when nominating a member whom
he plans to designate as chair once confirmed.
Chairs of executive branch boards and commissions typical y serve in that role at the pleasure of
the President. Thus, a President could general y remove an incumbent from his or her role as
chair as a result of a policy or political disagreement. However, the President would usual y have
to satisfy a higher “for cause” threshold for removing the same individual from his or her role as a
member of the board or commission.
Holdover Provisions
Some statutes that establish fixed terms for particular positions also permit an incumbent to
remain in office past the end of her or his term without additional appointment or confirmation. In
some cases, such a “holdover” provision al ows an official to continue serving until he or she is
replaced.51 In other cases, the individual may serve for a specified period linked to the calendar52
or for some period that is linked to the congressional schedule.53
Holdover provisions may affect the dynamics of the advice and consent process. If the President,
on one hand, or key Senators, on the other, are satisfied with the performance of an incumbent
member serving in a holdover capacity, nomination or confirmation of a successor might be less
likely than it would be if the position were vacant. Some boards and commissions have
experienced extended periods during which one or more of their members are serving in a
holdover capacity. For example, as of January 2021, two of the six members of the Federal
Election Commission had been serving in a holdover capacity for more than a decade.

of the Federal Energy Regulatory Commission. T he first o f these was to complete the remainder of a five-year term that
was to expire on June 30, 2018. T he second nomination was to the full five years of the succeeding term, which was to
expire on June 30, 2023. T he Senate confirmed both nominations on November 2, 2017.
51 For example, with regard to the Federal T rade Commission, the United States Code provides that “upon the
expiration of his term of office a Commissioner shall continue to serve until his successor shall have been appointed
and shall have qualified” (15 U.S.C. §41).
52 For example, with regard to the Consumer Product Safety Commission, the United States Code provides that a
commissioner “ may continue to serve after the expiration of this term until his successor has taken office, except that
he may not so continue to serve more than one year after the date on which his term would otherwise expire ” (15
U.S.C. §2053(b)(2)).
53 For example, with regard to the Equal Employment Opportunity Commission, the United States Code provides that
“all members of the Commission shall continue to serve until their successors are appointed and qualified, except that
no such member of the Commission shall continue to serve (1) for more than sixty 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” (42 U.S.C. §2000e-4(a)).
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Appendix. Additional CRS Information on
Presidential Appointments
A number of CRS reports discuss the process and characteristics described above, as wel as other
related topics. Those reports include the following:
 CRS Report RL31980, Senate Consideration of Presidential Nominations:
Committee and Floor Procedure, by Elizabeth Rybicki
 CRS Report R46273, Consideration of Privileged Nominations in the Senate, by
Michael Greene
 CRS Report R46664, Return of Nominations to the President under Senate Rule
XXXI, by Michael Greene
 CRS Report R42963, Nominations to Cabinet Positions During Inter-Term
Transitions Since 1984, by Maeve P. Carey, Michael Greene, and Henry B.
Hogue
 CRS Report R41872, Presidential Appointments, the Senate’s Confirmation
Process, and Changes Made in the 112th Congress, by Maeve P. Carey
 CRS Report R44997, The Vacancies Act: A Legal Overview, by Valerie C.
Brannon
 CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by
Henry B. Hogue
 CRS Report R43030, The Recess Appointment Power After Noel Canning v.
NLRB: Constitutional Implications, by Todd Garvey and David H. Carpenter
 CRS Report RL33886, Statutory Qualifications for Executive Branch Positions,
by Henry B. Hogue
In addition, CRS has a number of tracking reports that compile data on nominations made by the
President in each Congress to full-time positions in the executive branch. See, for example, CRS
Report R45004, Presidential Appointments to Full-Time Positions in Executive Departments
During the 114th Congress, by Michael Greene and Jared C. Nagel; CRS Report R45028,
Presidential Appointments to Full-Time Positions in Independent and Other Agencies During the
114th Congress, by Jared C. Nagel and Michael Greene; and CRS Report R46317, Presidential
Appointments to Full-Time Positions on Regulatory and Other Collegial Boards and
Commissions, 115th Congress, by Kathleen E. Marchsteiner.

Author Information

Henry B. Hogue
Maeve P. Carey
Specialist in American National Government
Specialist in Government Organization and

Management

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Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
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