Since at least 1973, DOJ has taken the position that any executive department or agency whose authorizing legislation vests all powers and functions of the agency in its head and allows the head to delegate such powers and functions to subordinates in her discretion, does not have to comply with that Act, which limits the time during which advice and consent positions may be filled by temporary designees before a nomination is forwarded to the Senate. All executive departments have such provisions. As a consequence, during 1998 some 20% of the 320 advice and consent positions in the departments were being filled by temporary designees, most of whom had served beyond the 120-day limitation period of the Act without presidential submissions of nominations. Following hearings on S. 2176 , the Federal Vacancies Reform Act of 1998 was reported by the Senate Committee on Governmental Affairs on July 15, 1998. Although the bill failed to survive a cloture vote on the Senate floor on September 24, 1998, negotiations between the Senate sponsors and the Administration continued, and a compromise was reached on a revision and included in the FY 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act, which became law on October 21, 1998 ( P.L. The new Vacancies Act rejects the DOJ position on temporary appointments and makes it clear that the Act is the exclusive vehicle for temporarily filling vacant advice and consent positions unless Congress expressly provides otherwise. The court held that the Vacancies Act applied to the situation. 105-277

The Federal Vacancies Reform Act of 1998, Pub.
Since at least 1973, the Justice Department (DOJ) has taken the position that any executive department or agency whose authorizing legislation vests all powers and functions of the agency in its head and allows the head to delegate such powers and functions to subordinates in her discretion, does not have to comply with the Vacancies Act, which limits the time during which advice and consent positions may be filled by temporary designees before a nomination is forwarded to the Senate. All executive departments have such provisions. As a consequence, during 1998 some 20% of the 320 advice and consent positions in the departments were being filled by temporary designees, most of whom had served beyond the 120-day limitation period of the Act without presidential submissions of nominations. The designation by the Attorney General of an acting Assistant Attorney General for Civil Rights in December 1997 in apparent contravention of the Vacancies Act precipitated congressional hearings and the introduction of legislation in both Houses to remedy the perceived noncompliance. Also, a federal appeals court ruling in March 1998 narrowly construing the Vacancies Act further piqued congressional concerns. On July 15, 1998, the Senate Governmental Affairs Committee reported S. 2176, the Federal Vacancies Reform Act. Although the bill failed to survive a cloture vote on the floor, a compromise version was included in the FY 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act, which became law on October 21, 1998 (P.L. 105-277). The new Vacancies Act rejects the DOJ position and makes it the exclusive vehicle for temporarily filling vacant advice and consent positions and provides substantial incentives for the President to send forth timely nominations for Senate consideration.