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If a person is sworn in as an acting secretary of a cabinet department but never receives senate confirmation, and if the administration is happy with that decision, does anything ever really happen?

The Federal Vacancies Reform Act of 1998 is relevant but it seems to be focused on qualifications and how appointments are made. The relevant part on the wiki page mentions some 210 day deadlines, and says

If an office remains vacant after 210 days after the rejection, withdrawal, or return of a second presidential appointment nomination, it remains vacant until a person is appointed by the President, by and with the advice and consent of the Senate. In such instance, only the head of an executive agency may perform office functions until such appointment is made in the case of an office other than the office of head of an executive agency.

That seems to just say the position stays vacant until it's filled. (I might not be understanding this fully)

I'm not sure what I expected, but I assumed there would be a process for resolving the confirmation/position and getting a person confirmed after 210 days. Instead it seems that nothing really happens. Does that person just continue in their current role indefinitely until the position is confirmed (president + senate)?

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  • I was trying to see if there was a nomination that refreshed the 210 day count (as mentioned in FVRA), but couldn't find anything on the senate website, though overall I'm not sure it's relevant: senate.gov/legislative/nom_confc.htm (I realize this page is only confirmed nominations)
    – BurnsBA
    Jul 21, 2020 at 19:22

2 Answers 2

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Q: Is there a process to resolve a cabinet department position unfilled for longer than 210 days?

No. Though there may be multiple 210-day periods under some circumstances, once the last 210-day period has completed, the office is considered vacant.

For a simple example, a cabinet secretary resigns and a 210-day window begins. In the normal course, the president will appoint the deputy secretary to be the acting secretary. After the 210-day window is completed the deputy secretary loses the acting secretary title and the office is declared vacant.

That simple example may become complicated by rejected nominations which will restart the 210-day window.

While an acting secretary can take all actions of the cabinet secretary, the effect of having a vacant office (after the 210-day window) is that those actions that are exclusive to the cabinet secretary cannot be done by anyone else.

Though the question was about a cabinet department, it should be noted that, if the deputy secretary or other office is the vacant office, the cabinet secretary or agency head can perform any required actions of the deputy or other officer.

THE VACANCIES ACT: FREQUENTLY ASKED QUESTIONS

For deputy secretary or other office,

As noted above, once the Vacancies Act cap is reached, the PAS[1] position is vacant and the functions or duties vested in the vacant position by statute or regulation are delegated to the head of the agency. The Vacancies Act also requires the head of the agency to report the vacancy to both the Government Accountability Office and to Congress. The act requires GAO to report Vacancies Act violations to Congress, the president and the Office of Personnel Management.

For cabinet secretary or agency head,

Interestingly, the law does not account for circumstances in which the vacancy in question is that of the agency head and the Vacancies Act cap has been reached. In short, the law delegates the authorities of vacant positions to the agency head, but does not articulate what happens when the vacancy itself is the top position at the agency. The Senate report accompanying the legislation stated that the authorities of a vacant agency head are not addressed in the act “because the Committee expects that there will never be a case where a nomination for these positions is not timely submitted.”

See also, The Vacancies Act: A Legal Overview, August 1, 2022.


1 PAS means President Appointed Senate confirmed

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The remedy the U.S. Constitution provides is a "recess appointment" which can be made to fill a vacancy in an office that would otherwise require U.S. Senate approval (even a U.S. Supreme Court justice) for the remainder of the Congressional session.

But recess appointments can only be made while the U.S. Senate is not in session, something that was historically common, but is now rare.

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