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Two current members of the Cabinet are currently unconfirmed, one being SecDef and the other being vacant for more than a year now, and it doesn't seem to cause any problems.

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 ?

Besides as the Senate doesn't have the power to remove nor to confirm removal of a member, who would have the power to remove an acting member of the Cabinet ?

The only reason I found was that only specific confirmed members of the Cabinet (not all of them, and in a specified order, and except VP, Speaker and pro tempore president of the Senate) could become acting POTUS, per the presidential succession act of 1947. But apart from that, what's the catch ?

(This question also extends to the other high officials who need to be confirmed by the Senate.)

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  • A question in return. Why would a president send cabinet members for confirmation if the senate doesn't force them to play by the rules and confirm people in the job?
    – Joe W
    Dec 15 '20 at 14:53
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    Cabinet members do not have to be eligible to become POTUS in order to be confirmed - there have been a fair number of them over the years who were not in the line of succession due to failing to meet the requirements (mostly due to being born outside the US, or sometimes being too young) Dec 15 '20 at 18:46
  • I don't understand your question @JoeW Dec 16 '20 at 8:34
  • The fact that cabinet members need to be confirmed is something that needs to be enforced to have any meaning. If the senate is willing to let a president have acting cabinet members who are not legally in that position why would a president bother with senate confirmations?
    – Joe W
    Dec 16 '20 at 14:01
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    Trump ignored them and they didn't force the matter as they should have. Once the president realizes they can safely ignore congress that is all they will do.
    – Joe W
    Dec 17 '20 at 13:10
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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.

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    Might also include in there how the Trump administration is ignoring these rules as well as any action taken against them to try and enforce the rules.
    – Joe W
    Dec 15 '20 at 14:54
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Because the appointments clause in the Constitution in Artile 2 Section 2 says so...

... [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

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    Yes but if it applied to the acting members, there wouldn't currently be an acting Secretary of Homeland Security, still in office after more than a year without confirmation Dec 15 '20 at 14:41
  • @CGCampbell I didn't know he didn't attempt to confirm him. But would he had, and would the confirmation have failed (say no vote happened), would the acting secretary be dismissed ? If so, after how long ? Dec 16 '20 at 8:41

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