Why would a president actually seek confirmation for any Cabinet position by the Senate ? Why wouldn't they just put whomever they want as acting Secretary of Whatever ?
The Federal Vacancies Reform Act of 1998 limits who may serve as Acting Secretary and for how long.
Courthouse New Service reports in Federal Judge Nullifies Actions Taken by Acting BLM Director, October 16,2020, that –
After a federal judge found the acting director of the Bureau of Land Management had been serving in the position unlawfully for over a year, the same judge has now struck down a trio of actions taken while he was at his post.
William Perry Pendley, 75, found himself thrust into a legal battle over the validity of his position earlier this year when Democratic Governor of Montana Steve Bullock filed a lawsuit against Pendley and the BLM with allegations that he was improperly serving in his role as acting director.
Bullock pointed to the fact that under President Donald Trump, not a single chief of the BLM, a crucial agency within the Department of the Interior responsible for overseeing and managing over 200 million acres of public land, has been officially confirmed by the U.S. Senate.
Each one has served in the position in an acting capacity only, Pendley included, who was appointed to the job by Secretary of the Interior David Bernhardt last year.
Bullock claimed that with the Trump administration allowing Pendley to serve in the position for so long without an official confirmation hearing, Pendley’s tenure stood in direct violation of the Federal Vacancies Reform Act.
The Vacancies Act: A Legal Overview, Updated May 28, 2020
Summary
The Federal Vacancies Reform Act of 1998 (Vacancies Act) generally provides the exclusive means by which a government employee may temporarily perform the nondelegable functions and duties of a vacant advice-and-consent position in an executive agency. Unless an acting officer is serving in compliance with the Vacancies Act, any attempt to perform the functions and duties of that office will have no force or effect.
The Vacancies Act limits a government employee’s ability to serve as an
acting officer in two primary ways. First, the Vacancies Act provides that only three classes of people may serve temporarily in an advice-and-consent position. As a default rule, the first assistant to a position automatically becomes the acting officer. Alternatively, the President may direct either a senior official of the agency or a person serving in any other advice-and-consent position to serve as the acting officer. Second, the Vacancies Act limits the length of time a person may serve as acting officer: a person may serve either (1) for a limited time period running from the date that the vacancy occurred or (2) during the pendency of a nomination to that office. The Vacancies Act is primarily enforced when a person who has been injured by an agency’s action challenges the action based on the theory that it was taken in contravention of the Act.
There are, however, a few key limitations on the scope of the Vacancies Act. Notably, the Vacancies Act has largely been interpreted to govern the ability of a person to perform only those functions and duties of an office that are nondelegable. Unless a statute or regulation expressly specifies that a duty must be performed by the absent officer, that duty may likely be delegated to another government employee. In other words, delegable job responsibilities are outside the purview of the Vacancies Act. In addition, if another statute expressly authorizes acting service, that other statute may render the Vacancies Act nonexclusive, or possibly even inapplicable.
