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July 28, 2014

Temporary Executive Appointments

This is the first of a three-part series on federal agency vacancies, nominations, and Senate confirmations.

Presidents maintain innumerable responsibilities and one of the most important but least-appreciated is selecting qualified people to help him run the federal government.  Many of the leadership positions are at the “political” level and require Senate confirmation.  While nominations can occur at any time when there is a vacancy to be filled, the shift between a first and second presidential term is a very common time for political appointees to step-down and for new people to be nominated to serve.  This piece focuses on how presidentially appointed, Senate-confirmed executive branch positions (PAS positions) may be filled temporarily before a permanent, confirmation occurs.  Vacancies are filled in one of three ways.

  • Under the Federal Vacancies Reform Act of 1998 (P.L. 105-277);
  • By recess appointment; or
  • Through provisions regarding position-specific temporary appointments specifically provided for by law.

It is important to note that these methods do not require the temporary appointee to undergo the usual Senate confirmation process.  The Vacancies Act allows for three ways that a vacant position may temporarily be filled:

  • The first assistant to such a position may automatically assume the functions and duties of the office;
  • The President may direct an officer who is occupying a different advice and consent position to perform these tasks; or
  • The President may select an officer or employee who is occupying a position in the same agency – such an employee must be making a salary equal to or greater than the GS-15 level and must have been with the agency for 90 days of the preceding year.

Appointees under the Vacancies Act have full authority to perform the duties and functions of the office.  However, such temporary appointments only last for 210 days after the date of the vacancy, or 210 days after the Senate reconvenes if in recess when vacancy occurs.  The 210 day time restriction may be waived if:  (1) the first or second nomination to the position is pending before the Senate; or (2) a permanent nomination has been rejected or withdrawn, the temporary appointment may be extended for an additional 210 days.

For example, in April 2010 during his first term, President Obama nominated Dr. Donald Berwick to serve as the Administrator of the Centers for Medicare & Medicaid Services (CMS) in the U.S. Department of Health and Human Services (HHS).  Berwick’s nomination faced significant opposition from Republicans in the Senate, and it was doubtful whether the Senate would vote to confirm his nomination.  Facing such opposition and the need for an Administrator as CMS was facing health care reform implementation, in July 2010, the President appointed Berwick to the top CMS post through a recess appointment.  Because Berwick had been appointed through a recess appointment, he was unable to serve his position indefinitely (as he would have had he received Senate confirmation).  Thus, on December 2, 2011, Dr. Berwick resigned as CMS Administrator because it was unlikely that the Senate would confirm his nomination.  Since then Marilyn Tavenner has served as the Acting Administrator for CMS, after having served as the CMS Principal Deputy Administrator.

Additionally, for temporary appointments filled in the first 60 days after a new President is inaugurated, the 210 restriction period does not begin until after the first 90 days following the inauguration.  So, for example, anyone the President nominates for a position between now and the end of March, the 210 day “clock” does not start until 90 dates following the inauguration.

For more information on temporary appointment procedures, see the January 2008 Congressional Research Service Report (CRS) “Temporarily Filling Presidentially Appointed, Senate-Confirmed Positions” (available through Open CRS).

On Friday, January 25, 2013, a federal appeals court ruled that President Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. The three-judge panel ruled that, as pro forma sessions were held during the “recess” that these appointments were made, the Senate remained in session and therefore these nominations violated the Constitution. The court stated that recess appointments must be made during official recess, defined as the break between sessions of Congress. It has been suggested that this ruling may limit the Presidential ability to bypass the Senate in the appointment process.

Amy Walker and Anna Howard contributed to this posting.

Read the rest of the series:

Presidential Nominations

Senate Confirmations of Presidential Nominees

©2014 Drinker Biddle & Reath LLP. All Rights Reserved

About the Author

Managing Government Relations Director

Ilisa Halpern Paul has more than 20 years of experience in health care, advocacy, and policymaking in non-profit, academic, federally funded, and government settings. Ilisa's practice focuses on advocacy, public policy, and federal support for national patient advocate health professional organizations as well as hospitals and health systems. Prior to joining the firm, Ilisa served as senior government relations director at Arent Fox where she represented and advanced the legislative and regulatory interests of numerous non-profit and advocacy organizations, trade associations,...

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