Squaring a Circle: Advice and Consent, Faithful Execution, and the Vacancies Reform Act

• Publication year: 2021

Squaring a Circle: Advice and Consent, Faithful Execution, and the Vacancies Reform Act

Ronald J. Krotoszynski
University of Alabama School of Law

Atticus DeProspo
Law Clerk to the Hon. Peter W. Hall, U.S. Court of Appeals for the Second Circuit

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SQUARING A CIRCLE: ADVICE AND CONSENT, FAITHFUL EXECUTION, AND THE VACANCIES REFORM ACT

Ronald J. Krotoszynski, Jr.^* & Atticus DeProspo^†

Successive presidents have interpreted the Federal Vacancies Reform Act of 1998 to authorize the appointment of principal officers on a temporary basis. Despite serving in a mere "acting" capacity and without the Senate's approval, these acting principal officers nevertheless wield the full powers of the office. The best argument in favor of this constitutionally dubious practice is that an acting principal officer is not really a "principal officer" under the U.S. Constitution because she only serves for a limited period. Although not facially specious, this claim elides the most important legal fact: an acting principal officer may exercise the full powers of the office, just like a Senate-confirmed cabinet officer. This approach broadly vindicates Article II's Take Care Clause, which requires that the President have the assistance needed to ensure that "the laws be faithfully executed." Unfortunately, this approach effectively reads the Appointments Clause out of the Constitution. For a person to hold a principal office, the

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Appointments Clause expressly requires that the President first seek and obtain the "advice and consent" of the Senate. Without the Senate's approval, a person cannot constitutionally hold a principal office (i.e., head a cabinet-level department or agency).

This Article proposes a better approach that would vindicate both the Take Care and Appointments Clauses: federal courts should limit the scope of authority acting principal officers may exercise to the performance of essential and necessary tasks—in other words, an acting principal officer must be a caretaker in both form and substance. Federal courts should not allow acting principal officers to undertake new discretionary programmatic initiatives. Moreover, if an acting principal officer attempts to wield the full powers of the office, federal courts should nullify, as ultra vires, discretionary policymaking initiatives that are not clearly essential and necessary to the performance of core executive functions. This approach would render acting principal officers more plausibly "inferior" under the Appointments Clause, would make them subordinate to a supervisor other than the President (Article III courts), and would create a powerful incentive for the President to nominate and obtain the Senate's approval of a principal officer who could constitutionally exercise the full powers of the office.

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Table of Contents

I. Introduction....................................................................734

II. The Inherent Tension Between the Appointments and Take Care Clauses........................................................749

A. The Appointments Clause....................................750
B. The Take Care Clause...........................................753
C. The Appointments and Take Care Clauses Create An Inherent Interbranch Tension That The Text, Unaided, Cannot Resolve....................................756

III. The VRA and the President's Power to Make Unilateral Appointments to Principal Executive Branch Offices.............................................................763

A. The Vra: Its Precursors and Contemporary Operation..............................................................763
B. Growing Presidential Recourse to Acting Appointments over Time......................................772
C. The Constitutional Problem with Granting the President Unilateral Authority to Appoint Acting Principal Officers...................................776

IV. Making the VRA (More) Consistent with the Appointments Clause..................................................788

A. The Example of Caretaker Prime Ministers in Parliamentary Systems.......................................789
B. The Need for Principal Federal Officers to Possess Democratic Legitimacy..........................798
C. Creating A Meaningful Presidential Incentive to Nominate and Secure Senate Approval of Principal Officers................................................802

V. Conclusion......................................................................812

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I. Introduction

Federal courts presently interpret and apply the Federal Vacancies Reform Act of 1998 (VRA)¹ in a way that violates the constitutional doctrine of separation of powers. Persons serving as acting heads of cabinet-level departments are not inferior officers.² Although temporally limited in service—generally to "210 days beginning on the date the vacancy occurs," but with some important exceptions that can lead to significantly longer service—these acting principal officers still exercise the full scope of the office's powers.³ Moreover, through expedient, successive acting appointments, a President may never have to obtain the Senate's consent to persons serving in a principal office within the Executive Branch.⁴ This practice negates the Appointments Clause, which

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expressly requires that all principal officers of the United States be nominated by the President and confirmed by the Senate before taking office.⁵

At the Philadelphia Convention, the Framers seriously considered vesting the President with a free hand to name principal and inferior officers.⁶ However, they ultimately rejected this approach in favor of requiring joint action by the President and Senate for the appointment of all principal officers.⁷ Importantly, the Framers authorized Congress to permit inferior officers to be appointed by "the President alone, [by] the Courts of Law, or [by] the Heads of Departments."⁸ They also provided a mechanism for recess appointments that permits the President to appoint principal and inferior officers for a limited time when the Senate is unavailable to receive presidential nominations and provide its advice and consent.⁹ Neither of these exceptions authorizes the indefinite appointment of a principal officer without the Senate's advice and consent; yet, the VRA authorizes precisely this result.¹⁰

This system of appointment has increasingly not worked quite as the Framers had envisioned. Long delays between nomination and a Senate approval vote are now commonplace; some nominees never receive a confirmation hearing (much less a vote on the merits).¹¹

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Meanwhile, Presidents have become somewhat lackadaisical in even sending formal nominations to the Senate for approval.¹² Instead, Presidents increasingly staff both principal and inferior offices with temporary (or "acting") appointees.¹³ These temporary appointments do not require the Senate's approval; the VRA facially authorizes them.¹⁴ A President's ability to appoint unilaterally an Attorney General, Secretary of Defense, or Secretary of State is deeply troubling and presents a difficult separation of powers problem.¹⁵ Indeed, Justice Thomas recently expressed serious

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doubts about the constitutionality of unilateral presidential appointments to principal offices.¹⁶

The Framers carefully considered how to structure the appointment of principal and inferior Executive Branch officers.¹⁷ The Senate's advice and consent role was intended to prevent imprudent presidential appointments.¹⁸ As Alexander Hamilton explains in Federalist No. 76, requiring the President to seek and obtain the Senate's approval of appointments to principal offices "would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity."¹⁹

The Framers clearly foresaw the possibility of a President attempting to make unwise and arbitrary appointments to senior federal government posts.²⁰ The Senate's approval of presidential nominations was an important structural check against

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improvident appointments to key government positions, and, more generally, served as "an efficacious source of stability in the administration."²¹ In short, "[t]he Framers intended for the Senate to serve as a reliable institutional check on the President."²²

The VRA goes well beyond the constitutionally authorized means of unilateral presidential appointments.²³ As presently enforced, this statute allows the Senate to evade its constitutional obligation to vouch for persons who hold principal offices when it is available to consider such nominations.²⁴ The separation of powers doctrine should prohibit this attempt to shirk the Senate's constitutional obligation. Simply put, Congress by statute cannot absolve the Senate of its constitutional duty to take political responsibility for the President's appointments to principal offices—including heads of the various cabinet-level departments and members of federal independent agencies.²⁵

On the other hand, the President must be able to undertake "core" Article II duties.²⁶ Such duties encompass, at a minimum,

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presidential control over foreign and military affairs, national security, and criminal law enforcement. To discharge these Take Care Clause duties—even if the VRA did not exist—someone in the Departments of State, Defense, and Justice must be able to assist the President with managing these constitutional responsibilities.²⁷ As Professor Walter Dellinger—then serving as the head of the DOJ's Office of Legal Counsel—has explained, "[e]arly Attorneys General repeatedly opined that the President enjoyed a constitutional power of appointment empowering the President to make temporary or ad interim appointments to offices in cases of need without conforming to the requirements of the...