The FVRA’s “Delegable Duties” Loophole
Over the last two decades, presidents of both parties have increasingly exploited a loophole in the Federal Vacancies Reform Act of 1998 (FVRA) to turn temporary acting officers into de facto permanent officers. Eliminating this loophole would help restore the proper role of the Senate in the appointment process. With a key amendment to the FVRA, Congress can achieve an appropriate balance between accountability and efficiency in the federal appointment process.
The FVRA places limits on both who can serve as an acting officer and how long they can serve.2 These limits are the core limitations that the FVRA places on the executive branch. Without such limits, the executive branch would have little incentive to nominate people for Senate confirmation rather than using the Vacancies Act.3 The drafters of the FVRA thus knew that the key to making it an effective check on the executive branch was meaningful enforcement of these limits.4 In an attempt to give real teeth to the Vacancies Act’s limitations, Congress created an enforcement mechanism that invalidates an invalid acting officer’s work.5 The intention was that if a purported acting officer stayed in office past the FVRA’s deadline or lacked the FVRA’s required qualifications, that officer’s actions could be challenged in court and invalidated.6
But in the years since the FVRA was passed, this enforcement mechanism has not incentivized compliance as intended. That is because only actions that qualify as the performance of a “function or duty of a vacant office” can be invalidated, and the FVRA adopts an exceedingly narrow definition of “function or duty.” The FVRA defines a “function or duty” as “any function or duty of the applicable office that” is established by statute or regulation and required by such statute or regulation “to be performed by the applicable officer (and only that officer).”7 The parenthetical “(and only that officer)” has been interpreted to mean that if a duty is delegable, it doesn’t qualify as a “function or duty” for purposes of the FVRA and is thus exempt from FVRA enforcement.8
Six years after the FVRA was passed, the D.C. Circuit adopted a very broad view as to which powers are delegable in a case called U.S. Telecom . The court held that when a statute sets out an officer’s authorities, “subdelegation to a subordinate federal officer … is presumptively permissible absent affirmative evidence of a contrary congressional intent.”9 Relying on this presumption, the executive branch has repeatedly argued in court that various official duties are subdelegable and thus exempt from the FVRA.10 And when a power of a vacant office is exempt from the FVRA, that power can be performed by anyone without fear of invalidation.
As Professor Nina Mendelson has explained, the executive branch has exploited this loophole to “effectively create[] a new class of pseudo‐acting officials subject to neither time nor qualifications limits.”11 These pseudo‐acting officials are selected without using the FVRA and are usually not eligible to serve under the FVRA, either because they lack the FVRA’s required qualifications or because the FVRA’s time limit has run out. They are typically delegated all of a vacant office’s duties and thus called officials “performing the duties of [fill in Senate‐confirmed position].”12 These pseudo‐actings have all the same power as FVRA‐compliant acting officers, but with none of the tenure or qualification restrictions.13
The use of these pseudo‐actings is widespread. In September 2020, the Constitutional Accountability Center identified 21 positions where the time limits of the FVRA had run out and officials were self‐described on agency websites as “performing the duties” (or equivalent language) of the position.14 Professor Anne Joseph O’Connell has identified at least 73 positions that had no confirmed or acting officer in April 2019, noting that for each of them “the functions of the vacant position presumably were delegated to someone.”15 In other words, they were presumably filled by pseudo‐actings.
The widespread use of this maneuver means that FVRA deadlines have been increasingly ignored. As Professor O’Connell notes, “[i]n the first year of an Administration, one sees a lot of ‘acting’ titles on agency websites. After the Act’s time limits run out, one sees ‘performing the functions of [a particular vacant office]’ language instead.”16 It also means that those who could never win Senate confirmation can nonetheless wield the power of an office indefinitely as a pseudo‐acting.17
These pseudo‐actings wield important power. During the Trump Administration, “numerous Federal Register notices of both proposed and final rules” were signed by pseudo‐actings.18 And so long as the use of pseudo‐actings under this “delegable duties exception” is widespread, alterations to the tenure or qualification requirements in the FVRA will not get to the heart of the problem. Even if the FVRA were amended so that its time limits were shortened or the minimum qualifications to be named an acting officer were raised, the delegable duties exception would still allow the executive branch to bypass the FVRA entirely. So long as that loophole persists, changing the FVRA’s time limits will only change when the titles on agency websites change from “acting” to “performing the functions and duties.”
A Loophole that Congress Never Intended
This is not how Congress expected the delegable duties exception to operate. Early FVRA drafts allowed agency heads to perform any function or duty of a vacant office that was subject to the enforcement mechanism.19 But some Senate offices were still concerned that the enforcement mechanism might overwhelm the bandwidth of an agency head. They worried that government duties might go unperformed if an agency head did not have enough hours in the day to carry out all the duties of every office lacking a confirmed or acting officer.20
The delegable duties exception was proposed to address these concerns. The intention was to exempt lower‐level duties, so that they would not be restricted solely to the agency head. The FVRA’s drafters expected that the delegable duties exception would thus allow a necessary division of labor between the agency head and subdelegatees. As one Senate office memo put it, “[p]aperwork can get signed by an agency head, but what about policy setting or rule writing or program operations that goes on under some office?”21 The delegable duties exception was created so that the latter types of functions, those lower‐level functions that were routinely subdelegated in the normal course of agency operations, could continue to be performed by subdelegatees during an extended vacancy. As one Senate office memo summed up, “even though the agency head would have to sign off on a final policy while that position was vacant; the agency head would not also have to develop the policy.”22 Senator Thompson, introducing the bill on the Senate floor, similarly described the delegable duties exception as applying to “the routine functions of the office.”23
The FVRA’s drafters thus did not anticipate that final decisionmaking authority to sign off on final agency actions would be routinely interpreted as subdelegable and thus exempt from FVRA enforcement. As noted above, it was only after the D.C. Circuit’s U.S. Telecom decision in 2004 that the executive branch began consistently arguing that the authority to take even final agency action is presumptively subdelegable and thus presumptively exempt from FVRA enforcement. That is the origin of today’s widespread use of pseudo‐actings.
The Solution: Eliminating the Nondelegable Duties Exception
The FVRA can be amended to limit the scope of the delegation loophole and incentivize permanent nominations. Doing so would also create a meaningful division of labor between the agency head and other subordinates during extended vacancies. The answer lies in an aspect of the FVRA that has not received enough attention: the limitation of enforcement to the invalidation of “action[s].”
The FVRA invalidates any “action taken by” an invalidly serving acting officer “in the performance of any function or duty of” the vacant office.24 The FVRA borrows the same definition of “action” that is found in the Administrative Procedure Act.25 Thus, an act taken by an invalidly serving acting officer is subject to invalidation only if it is both an “action” as defined by the APA and a performance of a “function or duty” as defined by the FVRA.
This means that no matter how the FVRA defines a “function or duty,” most of the day‐to‐day routine functions of an office cannot be invalidated by the FVRA because they are not “agency actions” as defined by the APA. Drafting an internal deliberative memo on a policy question for a superior to review, for example, would not qualify as an “action.”26
In addition, there is a further practical limitation that makes it even more difficult for the FVRA to invalidate “routine” functions. Since a legal challenge is the only means of implementing the FVRA’s enforcement mechanism, an action that can’t be challenged in court is effectively exempt from FVRA enforcement.27 In practice, such actions will generally be limited to “final” actions,28 actions that are necessary antecedents of later final actions,29 actions that can be collaterally attacked during enforcement proceedings, or actions that are important enough for Congress to have created a specific cause of action allowing them to be reviewed in court.
Simply amending the FVRA to eliminate the delegable duties exception would thus assign a small but meaningful subset of the functions of a vacant office to the agency head alone when there is no valid acting officer: those functions that qualify as “actions” and that can be challenged in court. This reform could be accomplished by changing the FVRA’s definition of a “function or duty” from any duty “required” by statute or regulation “to be performed by the applicable officer (and only that officer)” to instead any duty “assigned” by statute or regulation “to be performed by the applicable officer,” period. While a few additional amendments to the FVRA would be warranted to avoid any unintended consequences,30 eliminating the four parenthetical words “(and only that officer)” is the core solution.
This change would achieve the key goal of creating an enforcement mechanism that encourages permanent nominations by means of some inconvenience to an agency without ratcheting that inconvenience up to such a level that it creates agency paralysis. With the delegation loophole closed, the Vacancies Act would finally achieve the balance that Congress intended: a text that cannot be exploited to install unconfirmed acting officers indefinitely, but that also provides enough alternatives to ensure that the work of an office continues even if it is vacant for a lengthy period.
