The Vacancies Act is a federal statute that established the procedures that govern filling a vacancy of an executive agency of the federal government before a vacant office that requires presidential appointment and Senate confirmation can be filled. First passed in 1868, the Act was meant to be a practical compromise between the president’s duty to “nominate, and by and with the Advice and Consent, of the Senate shall appoint” certain high-level executive positions, and the reality that offices needed to continue to function during transitions in leadership.
However, after its original passage, ways to evade the rules of the Vacancies Act were increasingly used to delegate functions to subordinates within an executive agency, eroding the Senate’s constitutional mandate to vet and confirm certain appointments.
The Federal Vacancies Reform Act of 1998
The Federal Vacancies Reform Act of 1998 (Vacancies Act) was introduced in the 105th Congress and supported along partisan lines with Republicans supporting the bill and Democrats opposing it. Democrats filibustered the bill so it could not be brought to vote.
The legislation was added to the Omnibus appropriations act, and then passed, and signed by President Clinton. The act applies to principal offices which require presidential appointment and Senate confirmation, commonly referred to as PAS positions (i.e., covered positions). It also limits the number of days someone can serve in these roles in an acting capacity without Senate confirmation. It is the basis for our discussion in this lesson.
