As Donald Trump prepares to commence his second term as President of the United States, he has indicated that he may utilize recess appointments to bypass the Senate confirmation procedure and swiftly appoint his choices to crucial roles throughout the federal government. This move has met with some resistance from Republicans, but there is another method that Trump could use to assign those loyal to him to high-level positions without Senate approval, albeit temporarily. This method involves a 25-year-old federal law known as the Federal Vacancies Reform Act, which outlines the rules for presidents to select acting officials to fill vacant positions that necessitate Senate confirmation.
Introduced in 1998, the Federal Vacancies Reform Act restricts which government employees can temporarily take on the approximately 1,300 federal roles that require the President’s nomination and the Senate’s approval. Trump is no stranger to this strategy, having appointed “acting” leaders to various federal agencies and subagencies during his first term, including the Departments of Defense and Interior and the Environmental Protection Agency.
Several of Trump’s nominees may encounter resistance in the Republican-led Senate, such as Pete Hegseth, his choice for Pentagon leader, and Tulsi Gabbard, his intended nominee for director of national intelligence. In such cases, the Federal Vacancies Reform Act could prove to be a valuable tool for Trump to ensure that agencies are staffed with individuals loyal to him and his agenda.
The Vacancies Act has three categories of federal employees who can temporarily fill a position covered by the law: The “first assistant” or deputy to the vacant office, another administration official who has already won Senate confirmation, or an agency employee who has worked there for at least 90 days in the year before the vacancy occurred and is at the highest level of the civil service pay scale.
The Act also limits how long an acting official can serve, with a maximum of 300 days for those installed at the start of a new administration, and 210 days for those appointed after the start of a term. However, this limit can be extended if a nomination is pending in the Senate, and if a nomination is rejected, returned, or withdrawn, the President gets an additional 210 days.
As Trump’s second term progresses, he will likely have more flexibility in making appointments, particularly for positions that become vacant in the middle of his term. Trump’s use of the 1998 law during his second term will likely depend on his legislative priorities. Since winning re-election, Trump has announced a wide range of personnel selections, from Cabinet members to ambassadorships to senior White House staff. These appointments play a crucial role in shaping the administration’s policy agenda and can influence key decisions made at the federal level.
