Generally, to serve as an acting officer for an advice and consent position, a government officer or employee must be authorized to perform the duties of a vacant office by the Federal Vacancies Reform Act of 1998 (Vacancies Act). This report first describes how the Vacancies Act operates and outlines its scope, identifying when the Vacancies Act applies to a given office, how it is enforced, and which offices are exempt from its provisions. The report then explains who may serve as an acting officer and for how long, focusing on the limitations the Vacancies Act places on acting service. Finally, the report turns to issues of particular relevance to Congress, primarily highlighting the Vacancies Act's enforcement mechanisms. . . shall have no force or effect." Unless an acting officer is serving in compliance with the Vacancies Act, only the agency head can perform a nondelegable duty of a vacant advice and consent office. The Vacancies Act creates two primary types of limitations on acting service: it limits (1) the classes of people who may serve as an acting officer, and (2) the time period for which they may serve. There is an exception to this limitation: a person who is nominated to an office may serve as acting officer for that office if that person is in a "first assistant" position to that office and either (1) has served in that position for at least 90 days or (2) was appointed to that position through the advice and consent process. The Vacancies Act generally limits the amount of time that a vacant advice and consent position may be filled by an acting officer. The 210-day time limitation is tied to the vacancy itself, rather than to any person serving in the office, and the period generally begins on the date that the vacancy occurs. Potential Considerations for Congress

		Exclusivity of the Vacancies Act

The Vacancies Act provides "the exclusive means" to authorize "an acting official to perform the functions and duties" of a vacant office—unless another statute "expressly"
(A) authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or
(B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity[.] . . under the [Vacancies Act] the President 'may' override that default rule." Although the Vacancies Act is, in a sense, self-executing, violations of the Vacancies Act are generally enforced only if a third party with standing (such as a regulated entity that has been injured by agency action) successfully challenges the action as void in court.
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 that 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 governs 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 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.
This report first describes how the Vacancies Act operates and outlines its scope, identifying when the Vacancies Act applies to a given office, how it is enforced, and which offices are exempt from its provisions. The report then explains who may serve as an acting officer and for how long, focusing on the limitations the Vacancies Act places on acting service. Finally, the report turns to issues of particular relevance to Congress, primarily highlighting the Vacancies Act's enforcement mechanisms.