//  3/24/17  //  Quick Reactions

Earlier this week, the Supreme Court delivered an opinion interpreting the Federal Vacancies Reform Act, a law that allows the president to make acting appointments to vacant officer positions that would otherwise require Senate consent. The Court held that the Act’s language prohibits the president from appointing someone as an acting officer while nominating the same person to fill that role permanently. Chief Justice John Roberts’s opinion also included what Sam Bagenstos called a “subtweet” of President Trump: a quote from Alexander Hamilton that Senate confirmation is the “check” against “the appointment of unfit characters” and “family connection.”

It probably wasn’t intentional, but the opinion coming down right when the president gave his daughter all the perks of public employment with none of the responsibilities is a nice reminder that there are laws, not just norms, that are supposed to limit the president’s behavior.

As Brianne Gorod has written for this site, the Federal Vacancies Reform Act has itself become a pretty important law under President Trump. It’s what allowed the president to replace acting attorney general Sally Yates with a random U.S. attorney out of Virginia—the same person who is now running the Department of Justice’s Russia investigation. It’s also what’s allowing the president to get away with naming so few nominees to fill out vacant officer positions around the executive branch. Instead, he’s hiring new employees without Senate confirmation and, under the Act, converting them into acting officers with all of those offices’ power.

Before giving you a legal example (and an illegal example) of how President Trump is doing this, here’s what the Act says: When a Senate-confirmed officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the “first assistant to the office” fills the role “temporarily in an acting capacity.” But if the president doesn’t like the first assistant, the Act lets the president appoint someone else from the same agency. With some exceptions, that someone else can either be an officer already confirmed by the Senate or anyone else who’s worked in the agency for at least 90 days.  

Despite this “90 day” language, the Act gives the president legal (and illegal) opportunities to appoint some guy off the street into a Senate-confirmable office.

For a legal example, consider the solicitor general, the government’s lawyer before the Supreme Court. It’s a Senate-confirmable inferior officer position and it became vacant on inauguration day. On that day, President Trump hired Noel Francisco to be principal deputy solicitor general, an employee position that doesn’t require Senate consent. But because the principal deputy solicitor general is the “first assistant” to the solicitor general, Francisco immediately assumed the title of acting solicitor general. This lasted until President Trump formally nominated Francisco to serve as solicitor general in March, at which point Francisco resigned and a newly hired employee, Jeffrey Wall, took his acting place.

So that’s the legal way a civilian becomes an acting officer overnight. Now consider what appears to be an illegal way.

The U.S. trade representative is the head of an agency and the chief trade negotiator for the United States. It’s a Senate-confirmable principal officer position that also became vacant on inauguration day. The “first assistant” to the office appears to be one of several deputy U.S. trade representatives, another Senate-confirmable officer position. But instead of allowing a deputy to fill the role on January 20, President Trump named a longstanding employee from the agency, Maria Pagan, as acting U.S. trade representative instead.

So far, so good, at least as far as the Act is concerned.

In early March, however, President Trump appointed a member of his transition team, Stephen Vaughn as general counsel and as acting U.S. trade representative at the same time. The general counsel position is an employee role. It’s not the first assistant to the U.S. trade representative. And Vaughn hadn’t worked in the office for 90 days—he’d worked there for 0. Even if he’d started on inauguration day, he’d still be over 40 days short of the threshold. So it’s a little unclear what he’s doing running the nation’s trade policy.

I could be missing something. But the real thing I’m curious about is how often this is happening across the administration. I would think a temporary vacancy at the top of an agency would be a job for the Constitution’s Recess Appointments Clause. Not an employee in his first official day. 


Might the SCOTUS be Wrong in its Unanimous Ruling that Dead Judges Can't Judge?

3/3/19  //  Commentary

The decision is justifiable as a bright-line rule, but the case was not quite the no-brainer that the justices imagined

Michael C. Dorf

Cornell Law School

What’s Next for the Presidential Transition?

2/26/19  //  Commentary

Congress must take steps to ensure that any 2020 transition is an improvement over Trump's transition in 2016

Zachary Piaker

Columbia Law School

Is Trump's Emergency Unconstitutional or 'Merely' Illegal? And Does it Matter?

2/24/19  //  Commentary

And because Trump is a threat to constitutional democracy, the stakes over whether to call his bogus emergency 'merely' unlawful or also unconstitutional are non-trivial.

Michael C. Dorf

Cornell Law School