“Acting” Officers Can’t Act Forever, and Their Rules Are Illegitimate

Ilya ShapiroA core component of the balance of powers between the executive and legislative branches is the Senate ’s role to advise and consent to the appointment of officers. Under the Appointments Clause of Article II, federal officials are nominated by the president with the “advice and consent of the Senate.”However, and this should come as no surprise to anyone, the Senate is not an efficient body; there are often delays with the appointment process, both due to unexpected vacancies, and general political gridlock. Knowing this, Congress enacted theFederal Vacancies Reform Act (FVRA) which allows the president to appoint “acting” officers, without the Senate’s advice and consent, so long as they are only in office for a limited time: a maximum of 210 days. This act is a narrow exception and is the only way that the president can make non ‐​recess appointments which do not go through the advice and consent of the Senate. Nonetheless, in April 2019, Kevin McAleenan assumed the role of “acting” Secretary of the Department of Homeland Security (DHS), directly followed by Chad Wolf who assumed the position in November 2019. Not only did both of their appointmentsviolate the FVRA by going outside of the order of succession, but by the time Wolf was appointed as acting secretary, no one was eligible to be “acting” secretary because the 210 day period had elapsed.These “acting” officers have as much power as their perman...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs