Figure 1. Vacancies Act Time Periods

Source: Figure created by CRS using data from 5 U.S.C. § 3346.

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-C3-1/ALDE_00001144/ (last visited Apr. 29, 2026).

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).

See, e.g., CRS In Focus IF12721, Presidential Transitions: Executive Branch Political Appointment Status, by Henry B. Hogue (2024).

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.").

See generally CRS Report RS21412, Temporarily Filling Presidentially Appointed, Senate-Confirmed Positions, by Henry B. Hogue (2024).

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).

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).

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).

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).

5 U.S.C. §§ 3345–3349e.

Id. § 3345.

Id. §§ 3346, 3349a.

Id. § 3348(d).

Id. § 3347(a).

Id. §§ 3345, 3348.

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").

Cf., e.g., English v. Trump, 279 F. Supp. 3d 307, 322 (D.D.C. 2018) (noting party's argument that agency-specific 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").

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").

See id. §§ 3347–3348.

Id. § 3348(a)(2); see infra "What Are the "Functions and Duties" of an Office?"

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).

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."

5 U.S.C. § 3348(b).

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.").

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).

Id. § 3348(d)(2).

See infra "Consequences of Violating the Vacancies Act."

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).

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.

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.").

See 28 U.S.C. § 510; 5 U.S.C. § 3347(a)(1), (b).

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).

See, e.g., Hooks ex rel. NLRB v. Kitsap Tenant Support Servs., 816 F.3d 550, 556 (9th Cir. 2016).

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.

5 U.S.C. § 3348(b).

Id. § 3347.

Id.

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).

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).

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.

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.

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).

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.

5 U.S.C. § 2104. The Vacancies Act refers to both vacant "offices" and departing "officers." Id. §§ 3345, 3347.

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).

5 U.S.C. § 3348(b), (d), (e).

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."

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).

S. Rep. No. 105-250, at 20 (1998).

Id.

5 U.S.C. § 3348.

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).

Infra "Consequences of Violating the Vacancies Act."

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.

5 U.S.C. §§ 3345(a), 3348(b).

Id. §§ 3345, 3347–3348.

Id. § 3348(a).

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.

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."

5 U.S.C. § 3348(a)(2).

Id. § 3348(a)(2)(B)(ii).

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").

See 5 U.S.C. § 3348(a)(2)(B)(ii).

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).

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.").

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").

5 U.S.C. § 3348(a)(2).

L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 31 (D.D.C. 2020).

See id. at 31–32.

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").

See L.M.-M., 442 F. Supp. 3d at 31.

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).

See, e.g., Kajmowicz, 42 F.4th at 148 (majority opinion); S. Rep. No. 105-250, at 18 (1998).

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."

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."

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.").

E.g., Under Secretary of the Treasury for Enforcement, 26 Op. O.L.C. 230, 233–34 (2002).

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).

Arthrex, 35 F.4th at 1337.

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).

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.

L.M.-M., 442 F. Supp. 3d at 34.

U.S. Const. art. II, § 2, cl. 2.

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.").

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))).

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).

See, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam).

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."

Behring Reg'l Ctr. LLC v. Wolf, 544 F. Supp. 3d 937, 946 (N.D. Cal. 2021).

Id. at 946.

Id. at 945–46.

Id. at 946.

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).

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).

5 U.S.C. § 3348(b).

Id. §§ 3345, 3346, 3348. Additionally, as discussed infra "Exclusivity of the Vacancies Act," the Vacancies Act 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.

Id. § 3345.

Id. § 3346.

Id. § 3345.

Id. § 3345(a)(1).

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").

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.").

144 Cong. Rec. 22525 (1998) (statement of Sen. Joseph Lieberman).

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.").

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'").

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 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).

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.

Designation of Acting Associate Attorney General, 25 Op. O.L.C. at 180.

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).

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").

Giraud, 160 F.4th at 398 (quoting 5 U.S.C. § 3345(a)(1)).

Garcia, 2025 WL 2784640, at *8.

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.

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).

Id. § 3345(a)(2).

Id. § 3345(a)(3).

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).

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).

SW Gen., 580 U.S. at 293.

See 5 U.S.C. § 3345(b).

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).

United States v. Giraud, 160 F.4th 390, 401 (3d Cir. 2025).

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.

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-lynch-statement-planned-departure-solicitor-general-donald-b [https://perma.cc/HK6E-97ZM].

Coyle, supra note 123.

Id.

See Amy Howe, Opinion analysis: Court limits "acting" appointments to fill vacancies, SCOTUSblog (Mar. 22, 2017), http://www.scotusblog.com/2017/03/opinion-analysis-court-limits-acting-appointments-fill-vacancies [https://perma.cc/MN5F-EHFK].

See 5 U.S.C. § 3345(b)(1)(A).

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."

See id. § 3345(b).

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.").

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].

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.

5 U.S.C. § 3346(a).

Id. § 3346(b).

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).

See 5 U.S.C. § 3346.

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).

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-cr-01721, 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).

See 5 U.S.C. § 3349a.

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.

Id. § 3349a(b).

See id. § 3348. For more on violating the Vacancies Act, see infra "Consequences of Violating the Vacancies Act."

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.

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).

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).

5 U.S.C. § 3346(b)(1).

Id. § 3346(b)(2)(A).

Id. § 3346(b)(2)(B).

See id. § 3346(a)(2).

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).

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).

See 5 U.S.C. § 3348.

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-vacancies-reform-act/federal-vacancies-current-administration [https://perma.cc/PHS4-4CJW] (last visited Apr. 29, 2025).

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).

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).

See generally, e.g., Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881 (2014).

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).

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).

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-now-headless-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").

5 U.S.C. § 3348(b).

Id. § 3348(d).

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.").

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).

See, e.g., Rush v. Kijakazi, 65 F.4th 114, 118 (4th Cir. 2023).

See NLRB v. SW Gen., Inc., 580 U.S. 288, 298 n.2 (2017); Asylumworks, 590 F. Supp. 3d at 19.

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").

5 U.S.C. § 3348(d)(2).

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).

Pub. Emps. for Env't Resp. v. Nat'l Park Serv., 605 F. Supp. 3d 28, 47 (D.D.C. 2022).

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).

Fortin v. Comm'r of Soc. Sec., 112 F.4th 411, 427–28 (6th Cir. 2024).

5 U.S.C. § 3348.

Supra "What Are the "Functions and Duties" of an Office?"

See, e.g., Kajmowicz v. Whitaker, 42 F.4th 138, 149 (3d Cir. 2022).

E.g., United States v. Tinley Park, No. 1:16-cv-10848, 2017 WL 11883673, at *3–4 (N.D. Ill. July 17, 2017).

E.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam).

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).

Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132, 135 (2d Cir. 2009).

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).

Infra "Exclusivity of the Vacancies Act."

Supra "Which Offices?"

5 U.S.C. § 3348(e).

See id. § 3348.

NLRB v. SW Gen., Inc., 580 U.S. 288, 298 n.2 (2017); 5 U.S.C. § 3348.

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.").

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)).

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).

Easley v. Pettibone Mich. Corp., 990 F.2d 905, 909 (6th Cir. 1993).

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).

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)).

See, e.g., FEC v. NRA Pol. Victory Fund, 513 U.S. 88, 98 (1994).

FEC v. Legi-Tech, 75 F.3d 704, 707 (D.C. Cir. 1996).

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).

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.

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.

See discussions supra "What Are the "Functions and Duties" of an Office?" and infra "Exclusivity of the Vacancies Act."

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).

Rural Dev. Innovations Ltd., 2026 WL 710260, at *5; Aviel, 780 F. Supp. 3d at 11.

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.

Aviel, 780 F. Supp. 3d at 11.

See 5 U.S.C. § 3348.

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").

5 U.S.C. § 3347(a).

Id. § 3347(b).

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).

See, e.g., O'Connell, supra note 74, app. A at 74 (2019) (compiling agency-specific provisions).

S. Rep. No. 105-250, at 16–17 (1998). The list is numbered 1–40, but is missing numbers 26 and 27.

Id. at 16.

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.

See 5 U.S.C. § 3347.

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).

Temporary Filling of Vacancies in the Office of U.S. Attorney, 27 Op. O.L.C. 149, 149 (2003).

S. Rep. No. 105-250, at 17 (1998).

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).

5 U.S.C. § 3345.

Id. § 3346.

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").

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.").

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 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).

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).

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).

Morton v. Mancari, 417 U.S. 535, 551 (1974).

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).

See, e.g., Lucido, 373 F. Supp. at 1151; English, 279 F. Supp. 3d at 324.

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.

Hooks, 816 F.3d at 556.

English, 279 F. Supp. 3d at 319.

12 U.S.C. § 5491(b)(5) (emphasis added).

English, 279 F. Supp. 3d at 319.

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).

5 U.S.C. § 403 note.

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").

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).

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).

Infra "Appointments Clause Challenges."

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).

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.

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).

Id. § 113(g)(2).

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.

Cf. supra note 209 (discussing cases holding that Section 3348 did apply where no statute authorized acting service).

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).

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).

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.").

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., 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").

28 U.S.C. § 508.

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)).

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).

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).

See 5 U.S.C. § 3348; supra "What Are the "Functions and Duties" of an Office?"

5 U.S.C. § 3348(a)(2).

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).

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.

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).

See, e.g., Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 72 (1999).

See, e.g., Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: Assistant Secretary for Economic Policy, U.S. Department of the Treasury, B-335739, 2024 U.S. Comp. Gen. LEXIS 37, at *6 & n.10 (Comp. Gen. Feb. 8, 2024). See also, e.g., Nina A. Mendelson, The Permissibility of Acting Officials: May the President Work Around Senate Confirmation?, 72 Admin. L. Rev. 533, 558–63 (2020) (discussing agency delegations).

See, e.g., O'Connell, supra note 74, at 28–37 (giving examples of agency delegations).

United States v. Giraud, 160 F.4th 390, 403 (3d Cir. 2025); United States v. Naviwala, No. 24-CR-00099, 2026 WL 658885, at *23 (D.N.J. Mar. 9, 2026); Widakuswara v. Lake, No. 25-cv-1015, 2026 WL 638676, at *8–9 (D.D.C. Mar. 7, 2026); In re Grand Jury Subpoenas to Off. of N.Y. State Att'y Gen., 814 F. Supp. 3d 284, 297 (N.D.N.Y. 2026), appeal filed, No. 26-156 (2d Cir. Jan. 23, 2026); United States v. Ramirez, 807 F. Supp. 3d 1086, 1104 (C.D. Cal. 2025); United States v. Garcia, No. 25-cr-00230, 2025 WL 2784640, at *11–12 (D. Nev. Sept. 30, 2025), appeal filed, No. 25-6468 (9th Cir. Oct. 14, 2025); Pub. Emps. for Env't Resp. v. Nat'l Park Serv., 605 F. Supp. 3d 28, 47 (D.D.C. 2022); Bullock v. U.S. Bureau of Land Mgmt., 489 F. Supp. 3d 1112, 1126 (D. Mont. 2020); see also Acting Federal Insurance Administrator's Status & Authority, B-183012, 56 Comp. Gen. 761, 764 (1977) ("Once the period in which he may legally perform those duties has expired, any redelegation to another position—particularly if the other position is occupied by the same man who can no longer serve as Administrator—would seem a patent circumvention of the Vacancies Act.").

Giraud, 160 F.4th at 406.

Id. at 403.

5 U.S.C. § 3347(b).

See Mendelson, supra note 257, at 560. Some of the relevant legislative history is discussed supra note 30.

Giraud, 160 F.4th at 403.

Bullock v. U.S. Bureau of Land Mgmt., 489 F. Supp. 3d 1112, 1126 (D. Mont. 2020).

Id. at 1126, 1128.

Id. at 1128.

E.g., Kajmowicz v. Whitaker, 42 F.4th 138, 148–49 (3d Cir. 2022); Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. DHS, 107 F.4th 1064, 1076 (9th Cir. 2024); Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1336 (Fed. Cir. 2022). For example, one court maintained that "competing narratives in the legislative history cannot alter the plain language of the statute." Arthrex, Inc., 35 F.4th at 1337.

Arthrex, Inc., 35 F.4th at 1338.

Id.

Id. at 1337.

Bullock, 489 F. Supp. 3d at 1128.

In United States v. Ramirez-Martinez, No. 22-cr-01721, 2026 WL 113431, at *16–17, *19–20 (D.N.M. Jan. 14, 2026), the court said a purported delegation that merely named an official as the First Assistant U.S. Attorney was invalid under § 3347, but the Vacancies Act did not prohibit a later "limited delegation" of the office's "delegable, nonexclusive functions."

See id.; In re Grand Jury Subpoenas to Off. of N.Y. State Att'y Gen., 814 F. Supp. 3d 284, 297–98 (N.D.N.Y. 2026) (saying that while the Attorney General may delegate an office's nonexclusive duties, the challenged delegations do not distinguish "between . . . exclusive and nonexclusive duties"), appeal filed, No. 26-156 (2d Cir. Jan. 23, 2026).

United States v. Garcia, No. 25-cr-00230, 2025 WL 2784640, at *14 (D. Nev. Sept. 30, 2025), appeal filed, No. 25-6468 (9th Cir. Oct. 14, 2025).

United States v. Naviwala, No. 24-CR-00099, 2026 WL 658885, at *28 (D.N.J. Mar. 9, 2026).

See, e.g., Utah Ass'n of Cntys. v. Bush, 316 F. Supp. 2d 1172, 1196 (D. Utah 2004) (considering the scope of an executive order delegating "authority otherwise vested" in the President to perform certain functions); Action for Boston Cmty. Dev. v. Shalala, 983 F. Supp. 222, 228–29 (D. Mass. 1997) (considering whether agency had offered sufficient evidence to demonstrate Secretary of Health and Human Services properly delegated decisionmaking authority to regional administrator).

See Restatement (Third) of Agency § 3.04(1) (A.L.I. 2006) ("An individual has capacity to act as principal . . . if, at the time the agent takes action, the individual would have capacity if acting in person.").

U.S. Telecom Ass'n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004); see also, e.g., United States v. Mango, 199 F.3d 85, 91–92 (2d Cir. 1999) (concluding, in the face of statutory ambiguity, that subdelegation is permissible); Loma Linda Univ. v. Schweiker, 705 F.2d 1123, 1128 (9th Cir. 1983) ("Express statutory authority for delegation is not required . . . ."). But see Cudahy Packing Co. v. Holland, 315 U.S. 357, 361 (1942) (holding officer could not delegate subpoena power where 29 U.S.C. § 209 and 15 U.S.C. § 49 provided that the officer "shall have power" of subpoena); Stephen Migala, Delegation Inside the Executive Branch, 24 Nev. L.J. 147, 149 (2023) (describing this redelegation presumption as "mistaken" and "somewhat recent"). In Cudahy Packing Co., the Supreme Court considered whether the delegation of the subpoena power was authorized by a statute providing that "[t]he principal office of the [officer] shall be in the District of Columbia, but he or his duly authorized representative may exercise any or all of his powers in any place." 315 U.S. at 360 (quoting 29 U.S.C. § 204). The Court rejected this contention, stating that "[a] construction of the Act which would thus permit the Administrator to delegate all his duties, including those involving administrative judgment and discretion which the Act has in terms given only to him, can hardly be accepted unless plainly required by its words." Id. at 361.

Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 122–23 (1947).

Id.

See, e.g., United States v. Libby, 429 F. Supp. 2d 27, 33–34 (D.D.C. 2006) (discussing limitations on a delegation); cf. Stand Up for Cal.! v. U.S. Dep't of Interior, 994 F.3d 616, 625 (D.C. Cir. 2021) (rejecting arguments that delegation was invalid after reviewing delegation procedures).

See Off. of Thrift Supervision v. Paul, 985 F. Supp. 1465, 1474–75 (S.D. Fla. 1997).

See, e.g., CASA de Md., Inc. v. Wolf, 486 F. Supp. 3d 928, 959 (D. Md. 2020); Batalla Vidal v. Wolf, 501 F. Supp. 3d 117, 132 (E.D.N.Y. 2020); Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520, 535–36 (N.D. Cal. 2020). The plaintiffs in these cases sought preliminary injunctions, and the courts found they were likely to succeed on the merits.

Widakuswara v. Lake, No. 25-cv-1015, 2026 WL 638676, at *7 (D.D.C. Mar. 7, 2026).

Id.

Stand Up for Cal.!, 994 F.3d at 622 (quoting United States v. Giordano, 416 U.S. 505, 514 (1974)).

Stand Up for Cal.! v. U.S. Dep't of Interior, 298 F. Supp. 3d 136, 143 (D.D.C. 2018) (alterations in original), aff'd, 994 F.3d 616. See, e.g., 6 U.S.C. § 681d(c)(3) ("The authority of the Director [of the Cybersecurity and Infrastructure Security Agency] to issue a subpoena under this subsection may not be delegated." (emphasis added)); 25 U.S.C. § 2706(a) ("The [National Indian Gaming] Commission shall have the power, not subject to delegation . . . ." (emphasis added)).

Cf., e.g., Federal Vacancies Reform Act of 1998 - Assistant Attorney Gen. for the Office of Legal Counsel, U.S. Department of Justice, B-310780, 2008 U.S. Comp. Gen. LEXIS 101, at *12 (Comp. Gen. June 13, 2008) (saying that finding nondelegability "requires language that clearly signals duties or functions that cannot be delegated, such as providing final approval or final decisionmaking authority in a particular position").

See, e.g., United States v. Giordano, 416 U.S. 505, 507–08 (1974) (holding "Congress did not intend the power to authorize wiretap applications to be exercised by any individuals other than the Attorney General or an Assistant Attorney General specially designated by him"); Halverson v. Slater, 129 F.3d 180, 185 (D.C. Cir. 1997) (concluding statute that authorized Transportation Secretary to "delegate the duties and powers conferred by this subtitle to any officer, employee, or member of the Coast Guard," 46 U.S.C. § 2104(a), prohibited the "delegation of . . . functions to a non-Coast Guard official").

Crawford-Hall v. United States, 394 F. Supp. 3d 1122, 1137 (C.D. Cal. 2019).

25 U.S.C. § 5108.

Crawford-Hall, 394 F. Supp. 3d at 1129.

Id.

Id.

Id.

25 C.F.R. § 2.20(c) (2018).

Id.

Id.

Crawford-Hall, 394 F. Supp. 3d at 1136 (emphasis added).

See id. at 1143.

Id. at 1137.

Id.

Id. at 1139.

Id. at 1147.

See 5 U.S.C. § 3348. As discussed, however, at least one district court held that the Vacancies Act already prohibits the performance of delegated duties unless the delegation complied with the 180-day lookback period. L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 34 (D.D.C. 2020).

See, e.g., 42 U.S.C. § 3535(q)(2) ("The Secretary may delegate authority to approve a waiver of a regulation only to an individual of Assistant Secretary rank or equivalent rank, who is authorized to issue the regulation to be waived.").

See, e.g., 21 U.S.C. § 360c(i)(1)(E)(iii) ("The responsibilities of the Director under this subparagraph may not be delegated."); 26 U.S.C. § 7701(a)(11)(A) ("The term 'Secretary of the Treasury' means the Secretary of the Treasury, personally, and shall not include any delegate of his."); see also supra note 288.

See generally Panama Refining Co. v. Ryan, 293 U.S. 388, 448 (1935) (noting that where Congress has delegated legislative power "subject to a condition, it is a requirement of constitutional government that the condition be fulfilled").

See, e.g., 3 U.S.C. § 301 (authorizing President to delegate functions but requiring delegation to "be in writing, [and] . . . be published in the Federal Register"); 10 U.S.C. § 138(c) ("[A]n Assistant Secretary may not issue an order to a military department unless . . . the Secretary of Defense has specifically delegated that authority to the Assistant Secretary in writing; and . . . the order is issued through the Secretary of the military department concerned.").

See, e.g., Legislative Branch Appropriations Act, 1996, Pub. L. No. 104-53, § 211, 109 Stat. 468, 535 (1995) (transferring certain functions of Comptroller General to Director of Office of Management and Budget and providing that "[t]he Director may delegate any such function, in whole or in part, to any other agency or agencies if the Director determines that such delegation would be cost-effective or otherwise in the public interest").

See, e.g., NLRB v. SW Gen., Inc., 580 U.S. 288, 311 (2017) (Thomas, J., concurring).

U.S. Const. art. II, § 2, cl. 2. See generally CRS Report R44083, Appointment and Confirmation of Executive Branch Leadership: An Overview, by Henry B. Hogue and Maeve P. Carey (2021).

U.S. Const. art. II, § 2, cl. 2 (emphasis added); see also, e.g., Edmond v. United States, 520 U.S. 651, 662–63 (1997) (discussing distinction between principal and inferior officers).

See Lucia v. SEC, 585 U.S. 237, 245 (2018).

United States v. Germaine, 99 U.S. 508, 511–12 (1878).

Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam). For more on this analysis, see CRS Report R48481, The Appointments Clause: Responses to Frequently Asked Questions, by Victoria L. Killion (2026).

Edmond, 520 U.S. at 663; cf. Morrison v. Olson, 487 U.S. 654, 671–72 (1988) (relying on four factors to conclude that an official was an inferior officer: that the official (1) was "subject to removal by a higher Executive Branch official"; (2) "perform[ed] only certain, limited duties"; (3) held an office that was "limited in jurisdiction"; and (4) held an office that was "limited in tenure").

United States v. Arthrex, Inc., 594 U.S. 1, 13 (2021).

E.g., NLRB v. SW Gen., Inc., 580 U.S. 288, 316 (2017) (Thomas, J., concurring); Patrick v. Whitaker, 426 F. Supp. 3d 182, 184–85 (E.D.N.C. 2019) (noting plaintiff's argument "that Mr. Whitaker's designation as Acting Attorney General violated the Appointments Clause"); Joshua L. Stayn, Note, Vacant Reform: Why the Federal Vacancies Reform Act of 1998 Is Unconstitutional, 50 Duke L.J. 1511, 1513 (2001).

SW Gen., Inc., 580 U.S. at 314; see also, e.g., Nw. Immigrant Rts. Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 64–65 (D.D.C. 2020) ("[T]he Acting Secretary of the Department undoubtedly exercises significant governmental authority[.]").

See SW Gen., Inc., 580 U.S. at 313 n.3.

See id. at 315; see also Freytag v. Comm'r, 501 U.S. 868, 882 (1991) ("Special trial judges are not inferior officers for purposes of some of their duties . . . , but mere employees with respect to other responsibilities. The fact that an inferior officer on occasion performs duties that may be performed by an employee not subject to the Appointments Clause does not transform his status under the Constitution.").

See SW Gen., Inc., 580 U.S. at 316.

See 5 U.S.C. § 3345; E. Garrett West, Note, Congressional Power over Office Creation, 128 Yale L.J. 166, 219 (2018) (discussing the "automatic-promotion mechanism" in the context of a first assistant who is an inferior officer performing the duties of a principal office).

See, e.g., United States v. Smith, 962 F.3d 755, 763 (4th Cir. 2020) (holding that Acting Attorney General serving under the Vacancies Act did not violate the Appointments Clause); United States v. Castillo, 772 Fed. Appx. 11, 13 n.5 (3d Cir. 2019) (collecting cases reaching the same conclusion). But see Patrick v. Whitaker, 426 F. Supp. 3d 182, 186 (E.D.N.C. 2019) ("The Court is inclined to agree with plaintiff that the President's designation of Mr. Whitaker as a principal officer pursuant to the [Vacancies Act] 'raises grave constitutional concerns . . . .' However, because the Court concludes that plaintiff lacks standing, it dismisses his claims." (quoting SW Gen., Inc., 580 U.S. at 313)).

See, e.g., West, supra note 325, at 219.

10 U.S.C. § 132(b).

See, e.g., Ben Miller-Gootnick, Note, Boundaries of the Federal Vacancies Reform Act, 56 Harv. J. on Legis. 459, 491 n.163 (2019).

Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121, 122 n.3 (2003); see also 5 U.S.C. § 3345(a)(2) ("[T]he President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity . . . .").

Fortin v. Comm'r of Soc. Sec., 112 F.4th 411, 421 (6th Cir. 2024).

Id. at 420; Shoemaker v. United States, 147 U.S. 282, 301 (1893) (holding that Congress could assign new duties to a previously confirmed officer so long as the new duties were germane to the office).

Fortin, 112 F.4th at 421.

Cf. Auffmordt v. Hedden, 137 U.S. 310, 327 (1890) (holding that a merchant appraiser who "acts only occasionally and temporarily" was not a constitutional officer); United States v. Germaine, 99 U.S. 508, 512 (1878) (holding that a surgeon who exercised "occasional and intermittent" duties, acting only "when called on . . . in some special case" was not a constitutional officer). However, acting service involves the temporary performance of permanent duties established by law, in a way that is potentially distinguishable from the temporary duties at issue in those cases.

E.g., Rop v. Fed. Hous. Fin. Agency, 50 F.4th 562, 571 (6th Cir. 2022); Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1334 (Fed. Cir. 2022); United States v. Smith, 962 F.3d 755, 764 (4th Cir. 2020); Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 148 (D.D.C. 2019), aff'd on other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam).

United States v. Eaton, 169 U.S. 331, 343 (1898). A statute provided that vice-consuls "shall be substituted, temporarily, to fill the places of consuls-general . . . when they shall be temporarily absent." Id. at 336.

Id. at 343.

See also, e.g., Morrison v. Olson, 487 U.S. 654, 672 (1988) (holding that an independent counsel appointed under the Ethics in Government Act of 1978 was an inferior officer that could permissibly be appointed by a court, and noting, among other factors, that the office was "limited in tenure," citing Eaton); United States v. Arthrex, Inc., 594 U.S. 1, 22 (2021) (citing Eaton in discussing historical precedent for inferior officers exercising "limited power under 'special and temporary conditions'").

Eaton, 169 U.S. at 343. In SW General, Inc., Justice Thomas distinguished Eaton by noting that the official serving as acting General Counsel had "served for more than three years in an office limited by statute to a 4-year term, and he exercised all of the statutory duties of that office," saying that there was "nothing 'special and temporary' about Solomon's appointment." NLRB v. SW Gen., Inc., 580 U.S. 288, 313 n.3 (2017) (Thomas, J., concurring).

Eaton, 169 U.S. at 343.

E.g., Thomas Berry, Is Matthew Whitaker's Appointment Constitutional? An Examination of the Early Vacancies Acts, Yale J. on Reg.: Notice & Comment (Nov. 26, 2018), https://www.yalejreg.com/nc/is-matthew-whitakers-appointment-constitutional-an-examination-of-the-early-vacancies-acts-by-thomas-berry [https://perma.cc/T48S-CPV6] (noting that an official stepping in during a temporary absence is still subject to the supervision of the absent official and asserting that early executive branch practice treated short vacancies differently than more lengthy vacancies); cf., e.g., Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1335 (Fed. Cir. 2022) (holding that an acting official was serving "for a limited time" under Eaton although the service was for the duration of the vacancy).

E.g., Arthrex, 35 F.4th at 1334.

Cf. Rop v. Fed. Hous. Fin. Agency, 50 F.4th 562, 571 (6th Cir. 2022); Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 147–48 (D.D.C. 2019), aff'd on other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam).

Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121, 123–24 (2003); accord Gaiambrone v. Comm'r Soc. Sec., No. 23-2988, 2024 WL 3518305, at *2 n.9 (3d Cir. July 24, 2024); Guedes, 356 F. Supp. 3d at 154–55. But see Fortin v. Comm'r of Soc. Sec., 112 F.4th 411, 420 (6th Cir. 2024) (concluding the "linguistic distinction" between the use of "direct" in the Vacancies Act and a constitutional "appointment" is "deliberate," and holding that acting service does not involve a constitutional appointment).

Rop, 50 F.4th at 571.

See 5 U.S.C. § 3345(a)(1). A similar argument could be raised to challenge acting officials serving under an agency order of succession or delegation order. One federal appeals court responded to such an argument by concluding that a general delegation provision authorized the President, acting through an agency official, to select a delegate to perform the challenged duties. Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1334–35 (Fed. Cir. 2022). The implicit conclusion was that this delegation provision satisfied the requirement of presidential selection.

See West, supra note 325, at 219 (arguing that first assistants can lawfully serve if "(1) the inferior officer's original appointment satisfies the Appointments Clause (i.e., she was lawfully appointed by the President, head of the department, or a court of law) and (2) the contingent duties are . . . 'special and temporary'" (quoting United States v. Eaton, 169 U.S. 331, 343 (1898))).

Eaton, 169 U.S. at 343.

E.g., Williams v. Phillips, 482 F.2d 669, 671 (D.C. Cir. 1973) ("The Government concedes that the President cannot designate an acting officer indefinitely without any presentation to the Senate for confirmation."); Designating an Acting Attorney General, 42 Op. O.L.C. 182, 204 (2018) (confirming OLC's prior conclusion that acting officers should not serve beyond a reasonable time); cf. Dennis v. Luis, 741 F.2d 628, 634 (3d Cir. 1984) (holding there must be some limit under the Virgin Islands constitution on the time period an acting officer may serve because otherwise "there could be a complete nullification of the legislature's power of advice and consent," which would "obliterate the concept of separation-of-powers").

See, e.g., S. Rep. No. 105-250, at 7 (1998) ("A limit must be placed on the President's time to act to fill a position. 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."); 144 Cong. Rec. 22508 (1998) (statement of Sen. Thompson) (discussing indefinite length of acting service as significant problem contrary to legislative intent); 144 Cong. Rec. 22510 (1998) (statement of Sen. Robert Byrd) ("It is precisely that time restriction on the filling of these vacant positions that is, I believe, the linchpin of this issue.").

Status of the Acting Director, Office of Management and Budget, 1 Op. O.L.C. 287, 290 (1977) (footnote omitted) (outlining considerations to determine what period is reasonable, including "the specific functions being performed by the Acting Director; the manner in which the vacancy was created (death, long-planned resignation, etc.); the time when the vacancy was created (e.g., whether near the beginning or the end of a session of the Senate); whether the President has sent a nomination to the Senate; and particular factors affecting the President's choice (e.g., a desire to appraise the work of an Acting Director) or the President's ability to devote attention to the matter"); cf., e.g., Bhatti v. Fed. Hous. Fin. Agency, 332 F. Supp. 3d 1206, 1218 (D. Minn. 2018) (ruling that "determining whether an otherwise validly appointed acting officer has served for 'too long' [in violation of the Appointments Clause] is a non-justiciable political question"), aff'd in part on other grounds, 15 F.4th 848, 852–53 (8th Cir. 2021).

Williams, 482 F.2d at 671.

Rop v. Fed. Hous. Fin. Agency, 50 F.4th 562, 580–81 (6th Cir. 2022) (Thapar, J., concurring in part and dissenting in part) (claiming six months, based on historical practice). The plaintiffs in this case argued for a maximum of about two years, citing the Recess Appointments Clause. Id. at 573 (majority opinion).

E.g., Rop, 50 F.4th at 572 (majority opinion); Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1334–35 (Fed. Cir. 2022); cf. Gaiambrone v. Comm'r Soc. Sec., No. 23-2988, 2024 WL 3518305, at *2 (3d Cir. July 24, 2024) (concluding Vacancies Act time limitations are permissible and declining to impose allegedly constitutionally required time limit of 180 days).

Arthrex, Inc., 35 F.4th at 1335.

E.g., United States v. Smith, 962 F.3d 755, 764, 765 (4th Cir. 2020) (noting that "Eaton is congruous with centuries of unbroken historical practice"); CASA de Md., Inc. v. Wolf, 486 F. Supp. 3d 928, 957 (D. Md. 2020) (stating indefinite service might not raise serious constitutional doubts, given history of statutes authorizing acting officials).

NLRB v. Noel Canning, 573 U.S. 513, 514 (2014).

Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 148 (D.D.C. 2019), aff'd on other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam).

See Act of July 23, 1868, ch. 227, 15 Stat. 168.

NLRB v. SW Gen., Inc., 580 U.S. 288, 294 (2017).

See, e.g., id. at 294–95; The Vacancies Act, 22 Op. O.L.C. 44 (1998).