How Trump could put allies in key government posts without Senate approval

Washington — As President-elect Donald Trump prepares to begin his second term in the White House in just a few weeks, he has suggested that he will use recess appointments to circumvent the Senate confirmation process and quickly install his picks to key positions across the federal government.

The demand has been met with pushback from some Republicans, but there is another way in which Trump could place those loyal to him in high-ranking positions without Senate approval, albeit temporarily: a 25-year-old federal law that sets the rules for presidents to tap acting officials to fill vacant positions that require Senate confirmation.

Enacted in 1998, the Federal Vacancies Reform Act, or the Vacancies Act, limits which government employees can temporarily fill the roughly 1,300 federal offices that require nomination by the president and approval by the Senate. 

The playbook wouldn't be new to Trump, who installed "acting" leaders atop various federal agencies and subagencies in his first term, including the Departments of Defense and Interior and the Environmental Protection Agency.

Some of the president-elect's nominees are likely to face headwinds in the GOP-led Senate, like Pete Hegseth, his pick to lead the Pentagon and Tulsi Gabbard, who he plans to tap for director of national intelligence. The Vacancies Act could become a key tool for Trump to ensure agencies are staffed with those loyal to him and his agenda.

"Congress has made the policy choice to have about 1,300 positions still require Senate consent," said Thomas Berry, a legal scholar at the Cato Institute. "But what we have now is that any given time, half or more than half of those are filled not by Senate-confirmed people, not because Congress made that policy choice, but because the Vacancies Act can be pushed to the limit and maybe even beyond its limits, and it's so easy to have acting officers or sub-delegates essentially act in exactly the same way they would if they were Senate confirmed for years at a time."

How the Vacancies Act works

Under the Vacancies Act, there are three categories of federal workers who can temporarily fill a position covered by the law: 

• The "first assistant," or deputy, to the vacant office
• Another administration official who has already won Senate confirmation
• An agency employee who has worked there for at least 90 days in the year before the vacancy happened and is at the highest level of the civil service pay scale

The Vacancies Act also sets a time limit for how long an acting official can serve, allowing them to fill the position for 300 days when installed at the beginning of a new administration. Temporary leaders elevated after the start of a term can remain in their role for 210 days, but that cap can be extended if a nomination is pending in the Senate. If a nomination is rejected, returned or withdrawn, the president gets another 210 days.

When Trump took office after he was inaugurated the first time in January 2017, he tapped noncontroversial, longtime civil servants to serve in acting roles while the confirmation process played out, Berry said. He could do the same again for the first days or weeks after he returns to the White House on Jan. 20.

But Berry said the landscape will shift as Trump's second term progresses. Eventually, there will be Senate-confirmed officials in lower-level positions and those at the highest pay grade who have served in their agencies for more than 90 days. Those officials could be then tapped for acting positions.

"The vacancies people should be more concerned about, the vacancies where Trump has a lot more flexibility, are the ones that occur in the middle of the term, not right on day one," he said.

Presidents of both parties have installed acting officials in high-ranking positions in their administrations. But with 30 acting secretaries, Trump used more temporary leaders than those who were confirmed during his first four years in the White House, according to research from Anne Joseph O'Connell, a law professor at Stanford University who has extensively studied the Vacancies Act.

How much Trump relies on the 1998 law in the early months of his second term could depend on his legislative priorities. With a Republican-controlled Congress, the president-elect and GOP lawmakers have said they plan to focus on extending Trump's signature tax reform law, portions of which are set to expire next year, as well as border security. And if a member of the Supreme Court retires, filling that seat would also be a significant priority while Republicans have a Senate majority.

"I assume, given the threat to use the recess appointments clause, that the Senate party leadership is going to work closely with the White House to get the Cabinet or most confirmed quickly through the traditional process, so then the question is, what else will the Senate make a priority?" O'Connell said. "The Vacancies Act offers a second-best pathway for filling agency positions."

Since winning the White House in November, Trump has rolled out a slew of personnel picks, ranging from those who will serve in his Cabinet if nominated and confirmed by the Senate to candidates for ambassadorships to senior White House staff who do not require Senate approval. One of those candidates, former Rep. Matt Gaetz of Florida, whom the president-elect selected for attorney general, took himself out of consideration after he came under renewed scrutiny for alleged sexual misconduct and illicit drug use, which he denied.

While much of the focus is on Trump's picks for the most senior roles in his new administration, the leaders of subagencies could be filled through the Vacancies Act or through a delegation of duties to subordinates.

"That strategy can be done at these very influential positions that are just below the secretary level, and that's why you more often see pushing the boundaries of the Vacancies Act at that level," Berry said.