washington – As President-elect Donald Trump prepares to begin his second term in the White House in a few weeks, he has suggested that he will use recreational dating to bypass the Senate confirmation process and quickly install his picks in key positions in the federal government.
The demand has been met with pushback from some Republicans, but there’s another way Trump could place his loyalists in high-ranking positions without Senate approval, even if it’s temporary: a 25-year-old federal law that sets the rules for presidents to use sitting officials to fill vacancies that require Senate confirmation.
Enacted in 1998, the Federal Vacancies Reform Act, or the Vacancies Act, limits which government employees can temporarily fill the approximately 1,300 federal offices that require a presidential nomination and Senate approval.
The playbook would not be new to Trump, who installed “acting” leaders atop several federal agencies and subagencies in his first term, including the Defense and Interior departments and the Environmental Protection Agency environment
Some of the president-elect’s nominees are likely to face headwinds in the GOP-led Senate, including Pete Hegseth, his pick to lead the Pentagon, and Tulsi Gabbard, whom he plans to nominate as intelligence director national The Vacancies Act could become a key tool for Trump to ensure agencies are staffed with people loyal to him and his agenda.
“Congress has made the policy choice that about 1,300 positions still require Senate consent,” said Thomas Berry, an academic at the Cato Institute. “But what we have now is that at any given time, half or more than half of those are not filled by people confirmed by the Senate, not because Congress has made that policy decision, but because the Vacancies Act can be brought to the limit and perhaps even beyond its limits, and it is so easy for incumbent officers or deputies to act essentially as they would if they were confirmed to the Senate for years at a time.”
How the Vacancies Act works
Under the Vacancies Act, there are three categories of federal workers who may temporarily fill a position covered by the Act:
- The “first assistant,” or deputy, in the vacant office
- Another administration official who has already won Senate confirmation
- An employee of the agency who has worked there for at least 90 days in the year preceding the vacancy and who is at the highest level of the civil service pay scale
The Vacancies Act also sets a time limit on how long an incumbent can serve, allowing them to hold office for 300 days when installed at the start of a new administration. Temporary leaders elevated after the start of a term can remain in their role for 210 days, but that limit can be extended if there is a Senate nomination pending. If a nomination is rejected, returned, or withdrawn, the president gets an additional 210 days.
When Trump took office after he was first inaugurated in January 2017, he used non-controversial, long-serving public officials to serve in acting roles while the confirmation process unfolded, Berry said. He could do the same again in the first few days or weeks after he returns to the White House on January 20.
But Berry said the landscape will change as Trump’s second term progresses. Finally, there will be Senate-confirmed officials in lower-level positions and those with the highest pay grade who have served their agencies for more than 90 days. These officers could then be selected for acting positions.
“The vacancies that people should be most concerned about, the vacancies where Trump has a lot more flexibility, are the ones that occur in the middle of the term, not right on the first day,” he said.
Presidents of both parties have installed incumbents in senior positions in their administrations. But with 30 acting secretaries, Trump used more interim leaders than were confirmed during his first four years in the White House, he has reported. research by Anne Joseph O’Connell, a law professor at Stanford University who has studied the Vacancy Act extensively.
How much Trump relies on the 1998 law in the early months of his second term could depend on his legislative priorities. With a Republican-controlled Congress, the president-elect and Republican lawmakers have said they plan to focus on expanding Trump’s signature tax reform law, parts of which expire next year, as well as border security. And if a member of the Supreme Court retires, filling that seat would also be a top priority as long as Republicans hold a majority in the Senate.
“I assume, given the threat of using the recess appointments clause, that the Senate party leadership will work closely with the White House to get the cabinet or the majority confirmed quickly through the traditional process, so the question is, what else is the Senate going to do as a priority?” O’Connell said. “The Vacancies Act offers a second best way to fill [lower-level] agency charges”.
Since winning the White House in November, Trump has launched a a lot of personal choicesranging from those who will serve in his cabinet if nominated and confirmed by the Senate to ambassadorial nominees to senior White House staff who do not require Senate approval. One such candidate, former Rep. Matt Gaetz of Florida, whom the president-elect selected as attorney general, was removed from consideration after he came under renewed scrutiny for alleged sexual misconduct and illicit drug use, which he denied.
While much of the focus is on Trump’s picks for the top posts in his new administration, sub-agency leaders could be filled through the Vacancies Act or through a delegation of duties to subordinates.
“That strategy can be done in these very influential positions that are just below the level of secretary, and that’s why you see more often pushing the limits of the Vacancies Act at that level,” Berry said.