Modern Vacancies, Ancient Remedy: How the De Facto Officer Doctrine Applies to Vacancies Act Violations (And How It Should).

AuthorNicolas, Taylor

Table of Contents Introduction I. Threshold Matters: The Appointments Clause and Acting Service II. Setting the Stage: The De Facto Officer Doctrine, the Vacancies Act, and the Constitution A. What is the De Facto Officer Doctrine? B. Is the Doctrine Available for Constitutional Violations? Aurelius and Friends C. What is the Vacancies Act? III. Uncharted Territory: The De Facto Officer Doctrine and the Vacancies Act A. Loophole One: "But I'm Exempt" 1. Offices exempt from the Vacancies Act 2. Offices exempt from [section] 3348 3. The de facto officer doctrine in Loophole One B. Loophole Two: "But Another Statute Governs" 1. Offices governed by agency-specific succession provisions 2. The de facto officer doctrine in Loophole Two C. Loophole Three: "But Those Actions Were Delegable 1. Understanding delegation 2. Actions arguably not covered by the Vacancies Act 3. The de facto officer doctrine in Loophole Three IV. Reading the Tea Leaves: The Future of the De Facto Officer Doctrine A. What to Expect During the Biden Presidency B. The Presidential Preference for Ratification C. The Future of Ratification. V. Taking a Step Back: Normative Values and Policy Concerns A. Efficiency and Functionality B. Democratic Legitimacy C. Equity Conclusion Introduction *

The administrative state "wields vast power and touches almost every aspect of daily life." (1) Agencies regulate the financial markets, (2) deliver the mail, enforce antidiscrimination in the workplace, (3) and run the nation's rail network. (4) They control which curse words can air on television, (5) the percentage of peanuts in products labeled "peanut butter," (6) and most things in between. Much of that power rests in the hands of agency heads and officials.

The Framers, recognizing the dangers inherent in executive power, checked it with the Appointments Clause, which requires Senate confirmation of certain government officers. (7) But practical constraints--be they in-office sickness and death or ails of a more political ilk--forced even the Second Congress to authorize the temporary service of non-Senate-confirmed leaders. (8) Today we call those temporarily serving, non-Senate-confirmed leaders "actings." Their service is authorized and governed primarily by the Federal Vacancies Reform Act of 1998 (Vacancies Act). (9) The scope of that Act is difficult to overstate.

Between 1981 and 2020, there were 147 acting cabinet secretaries and just 171 confirmed ones. (10) And empirical studies have shown that Senate-confirmed positions are vacant between 15% and 25% of the time. (11) Despite the prevalence of acting officials and the power that they wield, the Vacancies Act has received little attention. Within academia, the Act is considered the niche province of administrative law buffs, and even within the federal government, most agency personnel receive only "ad hoc" training and guidance on it. (12) The Act only recently garnered more attention, as challenges to President Trump's actings punctuated his time in office. (13)

With lawsuits challenging Trump-era actings still pending and Biden-era ones brewing, (14) what should become of the actions of improper actings? Of the delisting of the grizzly bear as an endangered species by Jim Kurth "[e]xercising the [authority of the Director"? (15) Of the suspension of rules regulating natural gas on federal lands by Katharine MacGregor "[e]xercising the [authority of the Assistant Secretary"? (16) Actings are everywhere, and actions carried out under the color of their titles have both engendered significant reliance interests and caused enduring harm. In the face of a Vacancies Act violation, should those actions be allowed to stand or be voided--and, crucially, who should get to decide?

The constitutionality (contested), desirability (debatable), and ubiquity (undeniable) of actings have been examined by the legal historians and scholars, judges and Justices who have written about the Act. This Note, by contrast, analyzes how courts have dealt with the aftermath of a Vacancies Act violation. More specifically, it asks whether and when "[a]n ancient tool of equity" (17)--the de facto officer doctrine--might apply to the actions of officials serving in violation of the Vacancies Act. The doctrine provides that a court may "confer[] validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient." (18) In other words, it allows a court to validate the actions of an improperly serving official.

Readers familiar with the Vacancies Act will recall that it considerably narrows the remedies at a court's disposal. The text of the Act, codified at 5 U.S.C. [section] 3348, automatically voids all actions taken by improperly serving actings. (19) Indeed, that enforcement provision is what gave the 1998 Act--as compared to its predecessors--its bite. (20) In this Note, I suggest that [section] 3348 is much more porous than generally believed and then probe the implications of that permeability. This Note's chief contribution is thus tracing the topography of this area of law and analyzing the lack of clarity that has developed on the margins of [section] 3348. I analyze what federal courts have said and done when interpreting [section] 3348 and evaluating the propriety of the de facto officer doctrine in Vacancies Act-violation cases. I conclude that the de facto officer doctrine can be a valuable tool necessary to protect the public interest and, by offering normative criteria and guiding principles, suggest how future courts should apply the doctrine to Vacancies Act violations.

This Note proceeds in four parts. Part I provides constitutional and statutory background on the Appointments Clause and acting service. It explains that although Vacancies Acts violations are technically statutory, they are also inescapably constitutional in nature. Before reaching the heart of my analysis--the de facto officer doctrine's applicability to Vacancies Act violations--Part II examines a crucial threshold question: whether the de facto officer doctrine is available for constitutional violations at all. It focuses on a 2020 Supreme Court case that presented that very question: Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC. (21) Part III identifies three loopholes to the Vacancies Act's otherwise muscular enforcement provision: (1) offices exempt from [section] 3348, the "But I'm Exempt" loophole; (2) offices governed by agency-specific succession statutes, the "But Another Statute Governs" loophole; and (3) actions arguably not covered by the Act, the "But Those Actions Were Delegable" loophole. It also analyzes how courts, agencies, and Congress have addressed the de facto officer doctrine in each loophole. Part IV assesses the likelihood that government lawyers will rely on the doctrine in the coming months and years and seeks to predict the success of such a legal strategy. Lastly, Part V steps back, evaluating the normative value of the de facto officer doctrine in light of efficiency, functionality, democratic-legitimacy, and equity concerns.

A brief aside: The sources of legal authority on this topic span all three branches. They include Office of Legal Counsel (OLC) guidance and opinions, (22) Government Accountability Office (GAO) rulings, (23) and judicial opinions from both Article III and Article I courts. A recent exchange illustrates that overlap. In August 2020, the GAO, often called the "congressional watchdog," (24) issued an opinion finding that several high-level officials within the Department of Homeland Security were all serving in violation of the Vacancies Act. (25) The agency contested the GAO's findings. The fact that the Department of Homeland Security responded was itself not surprising, but the tenor of its response was.26 Chad Mizelle, a junior official performing the duties of the General Counsel, demanded that the GAO "rescind" its decision, writing that its conclusions were "baseless and baffling." (27) He further intimated that the agency's decision was inaccurate, partisan, and timed to discredit President Trump. (28) Although the Mizelle example is arguably the most astonishing, it is by no means anomalous. And so, by exploring the de facto officer doctrine's interaction with the Vacancies Act, this Note tells, almost accidentally, a second story: one about interbranch relations, conflict, and strategy.

  1. Threshold Matters: The Appointments Clause and Acting Service

    The Appointments Clause is "among the [most] significant structural safeguards of the constitutional scheme." (29) It serves as a check on the President appointing favorites and ensures that the nation's top leaders are "free from ethical conflicts and qualified to run the government." (30) The Clause is widely understood to create two categories of officers--principal and inferior--although it explicitly names only the latter category. (31) A principal officer must be appointed by the President with the "advice and consent" of the Senate (PAS), (32) while an inferior officer may be appointed directly by the President, by a court, or by a department head (that is to say, without needing to be confirmed by the Senate). (33)

    Senate confirmation can be onerous. (34) According to the most recent Congressional Research Service report on the topic, on average nearly six months elapse between nomination and confirmation of full-time agency leaders. (35) The Vacancies Act is thus a practical answer to the sometimes impractical requirement of Senate confirmation. In recent years, it has served as a response to abuses of the Senate's power (meritless, partisan blocking of appointments) (36) and created abuses of its own (appointments of unqualified individuals who would be unlikely to survive nonpartisan screening). (37)

    Where do actings fit into the...

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