Acting Officials and the Vacancies Act

Congress has regulated acting officials since 1792, when it allowed the President to designate someone to perform the duties of certain vacant cabinet offices, and the Vacancies Act of 1868 set general rules. After administrations used acting officials to serve for long periods in posts that required Senate confirmation, Congress passed the Federal Vacancies Reform Act, signed on October 21, 1998, which applies to most of the roughly 1,300 positions requiring Senate confirmation.

Under the law, when an office becomes vacant, the first assistant to the office, usually the deputy, automatically becomes the acting official, unless the President instead designates another Senate-confirmed official or a senior employee of the same agency who has served at least 90 days at a high pay level. An acting official may generally serve for 210 days from the vacancy, extended to 300 days at the start of a new administration, and the clock pauses while a nomination is pending. In NLRB v. SW General in 2017 the Supreme Court held that a person nominated to the office generally cannot serve as acting official. The Government Accountability Office reports violations to Congress.

Presidents of both parties have relied heavily on acting officials, and some agency heads have served in acting roles for long stretches or through creative delegations of duties. In 2025 federal judges ruled that several interim or acting U.S. attorneys had been unlawfully appointed, and in November 2025 a judge dismissed indictments obtained by one such appointee for that reason. In December 2025 a federal appeals court upheld one such ruling, for the U.S. attorney's office in New Jersey. Supporters of flexible use of acting officials say they keep the government running when the Senate is slow to confirm, while critics say long acting tenures let presidents bypass the Senate's constitutional role.