Thomas A. Berry
There are currently two vacancies in the cabinet and two deputy secretaries acting as secretaries: Todd Blanche as acting attorney general and Keith Sonderling as acting secretary of labor. This post explains how long they can stay as acting secretaries, whether they can be nominated for the permanent position, and whether there are constitutional concerns with their service.
Almost all vacancies in the executive branch are governed by the Federal Vacancies Reform Act (FVRA) of 1998, which sets uniform rules of who can be an acting officer and how long they can serve. But when the FVRA was enacted, about 40 separate statutes were on the books that provided different special rules for how acting officers may fill particular offices. The offices of attorney general and secretary of labor are both covered by such specific statutes. In 1998, Congress chose to retain these statutes rather than repeal them through the Vacancies Act. (This was, in part, a political judgment that the bill was more likely to be signed by the president if these alternative statutes were retained.) Since 1998, a few more offices have been created that also have special acting statutes, such as the Department of Homeland Security secretary and the Consumer Financial Protection Bureau (CFPB) director. In the FVRA’s Senate report, Congress showed it was aware of retaining these alternative acting officer statutes.
The operative language in the Vacancies Act explains that the act is “the exclusive means” for appointing an acting officer “unless” another “statutory provision expressly” provides for acting service. That language raises a question: When there is an alternative acting statute, does that statute become the only means of installing an acting officer or does the FVRA remain an alternative option? Thus far, courts have consistently held that the FVRA remains an option because it is “exclusive … unless” another acting statute exists, and “not exclusive” does not mean the same thing as “not available.” A recent example of a decision so holding is the DC District Court’s opinion in English v. Trump, when both Leandra English and Mick Mulvaney showed up to work as the purported acting director of the CFPB (English by operation of a statute specific to that office, Mulvaney by operation of the FVRA). The court held that even when the FVRA is not the “exclusive means” for filling a vacancy, it “remains a nonexclusive means to do so.”
As of now, President Trump has chosen to allow the officer-specific acting statutes to operate for both the attorney general vacancy and the secretary of labor vacancy. Why has he chosen this route rather than appoint an acting officer under the FVRA? Because the statutes for both acting attorney general and acting labor secretary come with no time limits, unlike the FVRA. That is true for most or all of the officer-specific acting statutes, and it is the main reason why the executive branch strongly preferred to keep them as an alternative option when the FVRA was passed. Many, such as the labor secretary statute, simply say that an acting officer may serve “until a successor is appointed.”
But there is one important aspect in which these office-specific acting statutes provide less flexibility than the FVRA: They typically limit the choice of acting officer to only one person, the deputy (or “first assistant”) to the vacant position. That is why both acting secretaries now are the respective deputy secretaries of their departments. The upshot is that so long as Trump is happy with the acting service of Blanche and Sonderling, they can remain as acting cabinet secretaries indefinitely, hypothetically for the remainder of the presidential term. But if Trump ever wishes to replace them with different acting secretaries, he will need to use the FVRA, and the FVRA’s time limits will then immediately kick in (calculated dating back to the time of the vacancy, not the time when Trump chooses to use the FVRA to make an appointment).
And there is a further potential advantage to sticking with Blanche and Sonderling. The FVRA generally forbids the same person from being both the acting officer in a position and the Senate nominee for that same position simultaneously. However, the FVRA exempts from this prohibition first assistants (e.g., deputies) who either served for 90 days prior to the vacancy or serve in one of the first assistant positions that itself requires Senate confirmation. Sonderling and Blanche check not just one but both of those boxes. And because they are serving under officer-specific acting statutes rather than the FVRA, this prohibition likely does not apply to them anyway. So Blanche and Sonderling could be nominated for Senate confirmation to their respective acting positions and remain acting secretaries, but no one else would be allowed to perform such a double duty.
Are there any constitutional issues with this statutory scheme? Neither Blanche nor Sonderling have been confirmed by the Senate as cabinet secretaries (that is the whole point of the FVRA); they have only been confirmed as deputy secretaries. The Appointments Clause of the Constitution says that all officers of the United States who are not “inferior” must be confirmed by the Senate, without exception. There is no dispute that a permanent cabinet secretary is a non-inferior (or “principal”) officer.
How then can someone serve in the cabinet who has not been confirmed to the cabinet? The short answer is that the Supreme Court has held that an acting officer is not a principal officer, even if the acting officer is temporarily serving in a principal position (including a cabinet position). In the 1898 case U.S. v. Eaton, the Supreme Court held that “because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official.” Because lower courts are bound by Eaton, they have consistently held that acting officers may serve in principal offices without Senate confirmation.
Nonetheless, the question remains whether acting service could ever extend for so long that it is no longer “for a limited time and under special and temporary conditions.” What if Blanche and Sonderling did serve as acting secretaries for more than two years; could that be too long even under Eaton? While no lower court has ever held that a particular amount of time was too long, Judge Amul Thapar of the Sixth Circuit wrote (in a partial concurrence/dissent) that the two most plausible upper limits based on text and history are either six months or until the expiration of the current Senate session (January 3, 2027). If Blanche or Sonderling serve as acting officers longer than that, it is possible that their actions could come under legal challenge.
In my view, however, Eaton is wrong, and the amount of time should not make a difference. Under the more recent precedent of Edmond v. U.S. (1997), the dividing line between principal and inferior officers is simply whether an officer has a superior besides the president. Acting cabinet members, even those who serve just a day, have no superior except the president and thus appear to be principal officers under Edmond.
In a recent law review article, I proposed an alternative approach: The question instead should be whether the acting officer was confirmed by the Senate to some other position where the Senate would have been reasonably on notice that acting service in the principal position would be a possibility. In other words, the question is whether the Senate has already confirmed the acting officer to a principal position because the Senate knew that there could well come a time when the individual would have no superior but the president. That approach is consistent with the Supreme Court cases Shoemaker v. U.S. (1893) and Weiss v. U.S. (1994), both of which held that a new Senate confirmation is not necessary if an officer is granted new duties “germane” to the duties they held on the day they were confirmed.
In my view, deputy secretaries are the quintessential example of positions where the Senate is on notice that acting service in the cabinet is a real possibility, so I believe both Blanche and Sonderling may serve indefinitely without constitutional concerns given their Senate confirmations as deputy secretaries. However, if President Trump replaces them via the FVRA with someone who either has not been confirmed to any position or has been confirmed to a position far afield from acting cabinet service, then I believe that appointment would be unconstitutional from day one. That was true of Matthew Whitaker’s service as acting attorney general during Trump’s first term. If another such unconfirmed person is tapped for acting service in the cabinet, it will tee up a constitutional question that the Supreme Court is long overdue in confronting.