Designating an Acting Attorney General ( 2018 )

(Slip Opinion)
Designating an Acting Attorney General
The President’s designation of a senior Department of Justice official to serve as Acting
Attorney General was expressly authorized by the Vacancies Reform Act. That act is
available to the President even though the Department’s organic statute prescribes an
alternative succession mechanism for the office of Attorney General.
The President’s designation of an official who does not hold a Senate-confirmed office to
serve, on a temporary basis, as Acting Attorney General was consistent with the Ap-
pointments Clause. The designation did not transform the official’s position into a
principal office requiring Senate confirmation.
November 14, 2018
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
After Attorney General Jefferson B. Sessions III resigned on Novem-
ber 7, 2018, the President designated Matthew G. Whitaker, Chief of
Staff and Senior Counselor to the Attorney General, to act temporarily as
the Attorney General under the Federal Vacancies Reform Act of 1998,
5 U.S.C. §§ 3345–3349d. This Office had previously advised that the
President could designate a senior Department of Justice official, such as
Mr. Whitaker, as Acting Attorney General, and this memorandum ex-
plains the basis for that conclusion.
Mr. Whitaker’s designation as Acting Attorney General accords with
the plain terms of the Vacancies Reform Act, because he had been serving
in the Department of Justice at a sufficiently senior pay level for over
a year. See id. § 3345(a)(3). The Department’s organic statute provides
that the Deputy Attorney General (or others) may be Acting Attorney
General in the case of a vacancy. See 28 U.S.C. § 508. But that statute
does not displace the President’s authority to use the Vacancies Reform
Act as an alternative. As we have previously recognized, the President
may use the Vacancies Reform Act to depart from the succession order
specified under section 508. See Authority of the President to Name an
Acting Attorney General, 31 Op. O.L.C. 208 (2007) (“2007 Acting Attor-
ney General ”).
We also advised that Mr. Whitaker’s designation would be consistent
with the Appointments Clause of the U.S. Constitution, which requires the
President to obtain “the Advice and Consent of the Senate” before ap-
pointing a principal officer of the United States. U.S. Const. art. II, § 2,
cl. 2. Although an Attorney General is a principal officer requiring Senate
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confirmation, someone who temporarily performs his duties is not. As all
three branches of government have long recognized, the President may
designate an acting official to perform the duties of a vacant principal
office, including a Cabinet office, even when the acting official has not
been confirmed by the Senate.
Congress did not first authorize the President to direct non-Senate-
confirmed officials to act as principal officers in 1998; it did so in multi-
ple statutes starting in 1792. In that year, Congress authorized the Presi-
dent to ensure the government’s uninterrupted work by designating per-
sons to perform temporarily the work of vacant offices. The President’s
authority applied to principal offices and did not require the President to
select Senate-confirmed officers. In our brief survey of the history, we
have identified over 160 times before 1860 in which non-Senate-
confirmed persons performed, on a temporary basis, the duties of such
high offices as Secretary of State, Secretary of the Treasury, Secretary of
War, Secretary of the Navy, Secretary of the Interior, and Postmaster
General. While designations to the office of Attorney General were less
frequent, we have identified at least one period in 1866 when a non-
Senate-confirmed Assistant Attorney General served as Acting Attorney
General. Mr. Whitaker’s designation is no more constitutionally problem-
atic than countless similar presidential orders dating back over 200 years.
Were the long agreement of Congress and the President insufficient,
judicial precedent confirms the meaning of the Appointments Clause in
these circumstances. When Presidents appointed acting Secretaries in the
nineteenth century, those officers (or their estates) sometimes sought
payment for their additional duties, and courts recognized the lawfulness
of such appointments. The Supreme Court confirmed the legal under-
standing of the Appointments Clause that had prevailed for over a century
in United States v. Eaton, 169 U.S. 331 (1898), holding that an inferior
officer may perform the duties of a principal officer “for a limited time[]
and under special and temporary conditions” without “transform[ing]” his
office into one for which Senate confirmation is required. Id. at 343. The
Supreme Court has never departed from Eaton’s holding and has repeat-
edly relied upon that decision in its recent Appointments Clause cases.
In the Vacancies Reform Act, Congress renewed the President’s au-
thority to designate non-Senate-confirmed senior officials to perform the
functions and duties of principal offices. In 2003, we reviewed the Presi-
dent’s authority in connection with the Director of the Officer of Man-
agement and Budget (“OMB”), who is a principal officer, and concluded
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Designating an Acting Attorney General
that the President could designate a non-Senate-confirmed official to
serve temporarily as Acting Director. See Designation of Acting Director
of the Office of Management and Budget, 27 Op. O.L.C. 121 (2003)
(“Acting Director of OMB”). Presidents George W. Bush and Barack
Obama placed non-Senate-confirmed officials in several lines of agency
succession and actually designated unconfirmed officials as acting agency
heads. President Trump, too, has previously exercised that authority in
other departments; Mr. Whitaker is not the first unconfirmed official to
act as the head of an agency in this administration.
It is no doubt true that Presidents often choose acting principal officers
from among Senate-confirmed officers. But the Constitution does not
mandate that choice. Consistent with our prior opinion and with centuries
of historical practice and precedents, we advised that the President’s
designation of Mr. Whitaker as Acting Attorney General on a temporary
basis did not transform his position into a principal office requiring Sen-
ate confirmation.
I. The Vacancies Reform Act
Mr. Whitaker’s designation as Acting Attorney General comports with
the terms of the Vacancies Reform Act. That Act provides three mecha-
nisms by which an acting officer may take on the functions and duties
of an office, when an executive officer who is required to be appointed
by the President with the advice and consent of the Senate “dies, resigns,
or is otherwise unable to perform the functions and duties of the office.”
5 U.S.C. § 3345(a). First, absent any other designation, the “first assis-
tant” to the vacant office shall perform its functions and duties. Id.
§ 3345(a)(1). Second, the President may depart from that default course
by directing another presidential appointee, who is already Senate con-
firmed, to perform the functions and duties of the vacant office. Id.
§ 3345(a)(2). Or, third, the President may designate an officer or employ-
ee within the same agency to perform the functions and duties of the
vacant office, provided that he or she has been in the agency for at least
90 days in the 365 days preceding the vacancy, in a position for which the
rate of pay is equal to or greater than the minimum rate for GS-15 of the
General Schedule. Id. § 3345(a)(3). Except in the case of a vacancy
caused by sickness, the statute imposes time limits on the period during
which someone may act. Id. § 3346. And the acting officer may not be
nominated by the President to fill the vacant office and continue acting in
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it, unless he was already the first assistant to the office for at least 90 days
in the 365 days preceding the vacancy or is a Senate-confirmed first
assistant. Id. § 3345(b)(1)–(2); see also Nat’l Labor Relations Bd. v. SW
General, Inc., 137 S. Ct. 929, 941 (2017).
A.
The Vacancies Reform Act unquestionably authorizes the President to
direct Mr. Whitaker to act as Attorney General after the resignation of
Attorney General Sessions on November 7, 2018. 1 Mr. Whitaker did not
fall within the first two categories of persons made eligible by section
3345(a). He was not the first assistant to the Attorney General, because
28 U.S.C. § 508(a) identifies the Deputy Attorney General as the “first
assistant to the Attorney General” “for the purpose of section 3345.” Nor
did Mr. Whitaker already hold a Senate-confirmed office. Although Mr.
Whitaker was previously appointed, with the advice and consent of the
Senate, as the United States Attorney for the Southern District of Iowa,
he resigned from that position on November 25, 2009. At the time of
the resignation of Attorney General Sessions, Mr. Whitaker was serving
in a position to which he was appointed by the Attorney General.
1 Attorney General Sessions submitted his resignation “[a]t [the President’s] request,”
Letter for President Donald J. Trump, from Jefferson B. Sessions III, Attorney General,
but that does not alter the fact that the Attorney General “resign[ed]” within the meaning
of section 3345(a). Even if Attorney General Sessions had declined to resign and was
removed by the President, he still would have been rendered “otherwise unable to perform
the functions and duties of the office” for purposes of section 3345(a). As this Office
recently explained, “an officer is ‘unable to perform the functions and duties of the office’
during both short periods of unavailability, such as a period of sickness, and potentially
longer ones, such as one resulting from the officer’s removal (which would arguably not
be covered by the reference to ‘resign[ation].’).” Designating an Acting Director of the
Bureau of Consumer Financial Protection, 41 Op. O.L.C. __, at *4 (2017); see also
Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 61
(1999) (“In floor debate, Senators said, by way of example, that an officer would be
‘otherwise unable to perform the functions and duties of the office’ if he or she were
fired, imprisoned, or sick.”). Indeed, any other interpretation would leave a troubling gap
in the ability to name acting officers. For most Senate-confirmed offices, the Vacancies
Reform Act is “the exclusive means” for naming an acting officer. 5 U.S.C. § 3347(a). If
the statute did not apply in cases of removal, then it would mean that no acting officer—
not even the first assistant—could take the place of a removed officer, even where the
President had been urgently required to remove the officer, for instance, by concerns over
national security, corruption, or other workplace misconduct.
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Designating an Acting Attorney General
In that position, Mr. Whitaker fell squarely within the third category of
officials, identified in section 3345(a)(3). As Chief of Staff and Senior
Counselor, he had served in the Department of Justice for more than 90
days in the year before the resignation, at a GS-15 level or higher. And
Mr. Whitaker has not been nominated to be Attorney General, an action
that would render him ineligible to serve as Acting Attorney General
under section 3345(b)(1). Accordingly, under the plain terms of the Va-
cancies Reform Act, the President could designate Mr. Whitaker to serve
temporarily as Acting Attorney General subject to the time limitations of
section 3346.
B.
The Vacancies Reform Act remains available to the President even
though 28 U.S.C. § 508 separately authorizes the Deputy Attorney Gen-
eral and certain other officials to act as Attorney General in the case of
a vacancy. 2 We previously considered whether this statute limits the
President’s authority under the Vacancies Reform Act to designate some-
one else to be Acting Attorney General. 2007 Acting Attorney General,
31 Op. O.L.C. 208. We have also addressed similar questions with respect
to other agencies’ succession statutes. See Designating an Acting Director
of the Bureau of Consumer Financial Protection, 41 Op. O.L.C. __ (2017)
(“Acting Director of CFPB”); Acting Director of OMB, 27 Op. O.L.C.
at 121 n.1. In those instances, we concluded that the Vacancies Reform
Act is not the “exclusive means” for the temporary designation of an
acting official, but that it remains available as an option to the President.
We reach the same conclusion here: Section 508 does not limit the Presi-
dent’s authority to invoke the Vacancies Reform Act to designate an
Acting Attorney General.
We previously concluded that section 508 does not prevent the Presi-
dent from relying upon the Vacancies Reform Act to determine who will
be the Acting Attorney General. Although the Vacancies Reform Act,
2 Under 28 U.S.C. § 508(a), in the case of a vacancy in the office of Attorney General,
“the Deputy Attorney General may exercise all the duties of that office, and for the
purpose of [the Vacancies Reform Act] the Deputy Attorney General is the first assistant
to the Attorney General.” If the offices of Attorney General and Deputy Attorney General
are both vacant, “the Associate Attorney General shall act as Attorney General,” and
“[t]he Attorney General may designate the Solicitor General and the Assistant Attorneys
General, in further order of succession, to act as Attorney General.” Id. § 508(b).
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which “ordinarily is the exclusive means for naming an acting officer,”
2007 Acting Attorney General, 31 Op. O.L.C. at 209 (citing 5 U.S.C.
§ 3347), makes an exception for, and leaves in effect, statutes such as
section 508, “[t]he Vacancies Reform Act nowhere says that, if another
statute remains in effect, the Vacancies Reform Act may not be used.”
Id. In fact, the structure of the Vacancies Reform Act makes clear that
office-specific provisions are treated as exceptions from its generally
exclusive applicability, not as provisions that supersede the Vacancies
Reform Act altogether. 3 Furthermore, as we noted, “the Senate Committee
Report accompanying the Act expressly disavows” the view that, where
another statute is available, the Vacancies Reform Act may not be used.
Id. (citing S. Rep. No. 105-250, at 17 (1998)). That report stated that,
“‘with respect to the specific positions in which temporary officers may
serve under the specific statutes this bill retains, the Vacancies [Reform]
Act would continue to provide an alternative procedure for temporarily
occupying the office.’” Id. We therefore concluded that the President
could direct the Assistant Attorney General for the Civil Division to act as
Attorney General under the Vacancies Reform Act, even though the
incumbent Solicitor General would otherwise have served under the chain
of succession specified in section 508 (as supplemented by an Attorney
General order).
At the time of our 2007 Acting Attorney General opinion, the first two
offices specified in section 508(a) and (b)—Deputy Attorney General
and Associate Attorney General—were both vacant. See 31 Op. O.L.C.
at 208. That is not currently the case; there is an incumbent Deputy Attor-
ney General. But the availability of the Deputy Attorney General does
not affect the President’s authority to invoke section 3345(a)(3). Nothing
in section 508 suggests that the Vacancies Reform Act does not apply
when the Deputy Attorney General can serve. To the contrary, the statute
expressly states that the Deputy Attorney General is the “first assistant to
the Attorney General” “for the purpose of section 3345 of title 5” (i.e., the
provision of the Vacancies Reform Act providing for the designation of
an acting officer). 28 U.S.C. § 508(a). It further provides that the Deputy
3 One section (entitled “Exclusion of certain offices”) is used to exclude certain offices
altogether. 5 U.S.C. § 3349c. Office-specific statutes, however, are mentioned in a
different section (entitled “Exclusivity”) that generally makes the Vacancies Reform Act
“the exclusive means” for naming an acting officer but also specifies exceptions to that
exclusivity. Id. § 3347(a)(1).
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Designating an Acting Attorney General
Attorney General “may” serve as Acting Attorney General, not that he
“must,” underscoring that the Vacancies Reform Act remains an alterna-
tive means of appointment. 4 These statutory cross-references confirm that
section 508 works in conjunction with, and does not displace, the Vacan-
cies Reform Act.
Although the Deputy Attorney General is the default choice for Acting
Attorney General under section 3345(a)(1), the President retains the au-
thority to invoke the other categories of eligible officials, “notwithstanding
[the first-assistant provision in] paragraph (1).” 5 U.S.C. § 3345(a)(2), (3).
Moreover, there is reason to believe that Congress, in enacting the Vacan-
cies Reform Act, deliberately chose to make the second and third catego-
ries of officials in section 3345(a) applicable to the office of Attorney
General. Under the previous Vacancies Act, the first assistant to an office
was also the default choice for filling a vacant Senate-confirmed position,
and the President was generally able to depart from that by selecting
another Senate-confirmed officer. See 5 U.S.C. § 3347 (1994). That addi-
tional presidential authority, however, was expressly made inapplicable
“to a vacancy in the office of Attorney General.” Id.; see also Rev. Stat.
§ 179 (2d ed. 1878), 18 Stat. pt. 1, at 28 (repl. vol.). Yet, when Congress
enacted the Vacancies Reform Act in 1998, it did away with the exclusion
for the office of Attorney General. See 5 U.S.C. § 3349c (excluding
certain other officers). 5
Our conclusion that the Vacancies Reform Act remains available, not-
withstanding section 508, is consistent with our prior opinions. In Acting
Director of OMB, we recognized that an OMB-specific statute, 31 U.S.C.
4 We do not mean to suggest that a different result would follow if section 508 said
“shall” instead of “may,” since as discussed at length in Acting Director of CFPB, such
mandatory phrasing in a separate statute does not itself oust the Vacancies Reform Act.
See 41 Op. O.L.C. __, *7–9 & n.3. The point is that, in contrast with the potential ambi-
guity arising from the appearance of “shall” in the CFPB-specific statute, section 508
expressly acknowledges that the Deputy Attorney General is the first assistant but will not
necessarily serve in the case of a vacancy in the office of Attorney General.
5 When it reported the Vacancies Reform Act, the Senate Committee on Governmental
Affairs contemplated that the Attorney General would continue to be excluded by lan-
guage in a proposed section 3345(c) that would continue to make section 508 “applicable”
to the office. See S. Rep. No. 105-250, at 13, 25; 144 Cong. Rec. 12,433 (June 16, 1998).
But that provision “was not enacted as part of the final bill, and no provision of the
Vacancies Reform Act bars the President from designating an Acting Attorney General
under that statute.” 2007 Acting Attorney General, 31 Op. O.L.C. at 209 n.1.
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§ 502(f ), did not displace the President’s authority under the Vacancies
Reform Act. See 27 Op. O.L.C. at 121 n.1 (“The Vacancies Reform Act
does not provide, however, that where there is another statute providing
for a presidential designation, the Vacancies Reform Act becomes una-
vailable.”). More recently, we confirmed that the President could desig-
nate an Acting Director of the Bureau of Consumer Financial Protection
(“CFPB”), notwithstanding 12 U.S.C. § 5491(b)(5), which provides that
the Deputy Director of the CFPB “shall” serve as Acting Director when
the Director is unavailable. See Acting Director of CFPB, 41 Op. O.L.C.
__. We reasoned that the CFPB-specific statute should “interact with the
Vacancies Reform Act in the same way as other, similar statutes provid-
ing an office-specific mechanism for an individual to act in a vacant
position.” Id. at *7–9 & n.3. We noted that the Vacancies Reform Act
itself provides that a first assistant to a vacant office “shall perform the
functions and duties” of that office unless the President designates some-
one else to do so, 5 U.S.C. § 3345(a), and that mandatory language in
either the CFPB-specific statute or the Vacancies Reform Act does not
foreclose the availability of the other statute. Acting Director of CFPB, 41
Op. O.L.C. __, at *7–8.
Courts have similarly concluded that the Vacancies Reform Act re-
mains available as an alternative to office-specific statutes. See Hooks v.
Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 555–56 (9th Cir. 2016)
(General Counsel of the National Labor Relations Board, which has its
own office-specific statute prescribing a method of filling a vacancy);
English v. Trump, 279 F. Supp. 3d 307, 323–24 (D.D.C. 2018) (holding
that the mandatory language in the CFPB-specific statute is implicitly
qualified by the Vacancies Reform Act’s language providing that the
President also “may direct” qualifying individuals to serve in an acting
capacity), appeal dismissed upon appellant’s motion, No. 18-5007, 2018
WL 3526296 (D.C. Cir. July 13, 2018).
For these reasons, we believe that the President could invoke the Va-
cancies Reform Act in order to designate Mr. Whitaker as Acting Attor-
ney General ahead of the alternative line of succession provided under
section 508.
II. The Appointments Clause
While the Vacancies Reform Act expressly authorizes the President to
select an unconfirmed official as Acting Attorney General, Congress may
8
Designating an Acting Attorney General
not authorize an appointment mechanism that would conflict with the
Constitution. See Freytag v. Comm’r, 501 U.S. 868, 883 (1991). The
Appointments Clause requires the President to “appoint” principal offic-
ers, such as the Attorney General, “by and with the Advice and Consent
of the Senate.” U.S. Const. art. II, § 2, cl. 2. But for “inferior Officers,”
Congress may vest the appointment power “in the President alone, in the
Courts of Law, or in the Heads of Departments.” Id.
The President’s designation of Mr. Whitaker as Acting Attorney Gen-
eral is consistent with the Appointments Clause so long as Acting Attor-
ney General is not a principal office that requires Senate confirmation.
If so, it does not matter whether an acting official temporarily filling
a vacant principal office is an inferior officer or not an “officer” at all
within the meaning of the Constitution, because Mr. Whitaker was ap-
pointed in a manner that satisfies the requirements for an inferior officer:
He was appointed by Attorney General Sessions, who was the Head of
the Department, and the President designated him to perform additional
duties. See Acting Director of OMB, 27 Op. O.L.C. at 124–25. If the
designation constituted an appointment to a principal office, however,
then section 3345(a)(3) would be unconstitutional as applied, because
Mr. Whitaker does not currently occupy a position requiring Senate con-
firmation.
For the reasons stated below, based on long-standing historical practice
and precedents, we do not believe that the Appointments Clause may be
construed to require the Senate’s advice and consent before Mr. Whitaker
may be Acting Attorney General.
A.
The Attorney General is plainly a principal officer, who must be ap-
pointed with the advice and consent of the Senate. See Edmond v. United
States, 520 U.S. 651, 662–63 (1997); Morrison v. Olson, 487 U.S. 654,
670–72 (1988). The Attorney General has broad and continuing authority
over the federal government’s law-enforcement, litigation, and other legal
functions. See, e.g., 28 U.S.C. §§ 516, 533. The Supreme Court has not
“set forth an exclusive criterion for distinguishing between” inferior
officers and principal officers. Edmond, 520 U.S. at 661. “Generally
speaking, the term ‘inferior officer’ connotes a relationship with some
higher ranking officer or officers below the President.” Id. at 662. There
is no officer below the President who supervises the Attorney General.
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Although the Attorney General is a principal officer, it does not follow
that an Acting Attorney General should be understood to be one. An
office under the Appointments Clause requires both a “continuing and
permanent” position and the exercise of “significant authority pursuant to
the laws of the United States.” Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018)
(internal quotation marks omitted); see also Officers of the United States
Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 74
(2007). While a person acting as the Attorney General surely exercises
sufficient authority to be an “Officer of the United States,” it is less clear
whether Acting Attorney General is a principal office.
Because that question involves the division of powers between the
Executive and the Legislative Branches, “historical practice” is entitled
to “significant weight.” Nat’l Labor Relations Bd. v. Noel Canning, 134
S. Ct. 2550, 2559 (2014); see also, e.g., The Pocket Veto Case, 279 U.S.
655, 689 (1929). That practice strongly supports the constitutionality of
authorizing someone who has not been Senate-confirmed to serve as an
acting principal officer. Since 1792, Congress has repeatedly legislated on
the assumption that temporary service as a principal officer does not
require Senate confirmation. As for the Executive Branch’s practice, our
non-exhaustive survey has identified over 160 occasions between 1809
and 1860 on which non-Senate-confirmed persons served temporarily as
an acting or ad interim principal officer in the Cabinet.
Furthermore, judicial precedents culminating in United States v. Eaton,
169 U.S. 331 (1898), endorsed that historical practice and confirm that the
temporary nature of acting service weighs against principal-officer status.
The Supreme Court in Eaton held that an inferior officer may perform the
duties of a principal officer “for a limited time[] and under special and
temporary conditions” without “transform[ing]” his office into one for
which Senate confirmation is required. Id. at 343. That holding was not
limited to the circumstances of that case, but instead reflected a broad
consensus about the status of an acting principal officer that the Supreme
Court has continued to rely on in later Appointments Clause decisions.
1.
Since the Washington Administration, Congress has “authoriz[ed] the
President to direct certain officials to temporarily carry out the duties of
a vacant PAS office [i.e., one requiring Presidential Appointment and
Senate confirmation] in an acting capacity, without Senate confirmation.”
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Designating an Acting Attorney General
SW General, 137 S. Ct. at 934; see also Noel Canning, 134 S. Ct. at 2609
(Scalia, J., dissenting in relevant part) (observing that the President does
not need to use recess appointments to fill vacant offices because “Con-
gress can authorize ‘acting’ officers to perform the duties associated with
a temporarily vacant office—and has done that, in one form or another,
since 1792”). Those statutes, and evidence of practice under them during
the early nineteenth century, did not limit the pool of officials eligible to
serve as an acting principal officer to those who already have Senate-
confirmed offices. This history provides compelling support for the con-
clusion that the position of an acting principal officer is not itself a prin-
cipal office.
In 1792, Congress first “authorized the appointment of ‘any person or
persons’ to fill specific vacancies in the Departments of State, Treasury,
and War.” SW General, 137 S. Ct. at 935 (quoting Act of May 8, 1792,
ch. 37, § 8, 1 Stat. 279, 281). Although the statute expressly mentioned
vacancies in the position of Secretary in each of those Departments, the
President was authorized to choose persons who held no federal office at
all—much less one requiring Senate confirmation. Although the 1792
statute “allowed acting officers to serve until the permanent officeholder
could resume his duties or a successor was appointed,” Congress “im-
posed a six-month limit on acting service” in 1795. Id. at 935 (citing Act
of Feb. 13, 1795, ch. 21, 1 Stat. 415). In 1863, in response to a plea from
President Lincoln, see Message to Congress (Jan. 2, 1863), Cong. Globe,
37th Cong., 3d Sess. 185 (1863), Congress extended the provision to
permit the President to handle a vacancy in the office of “the head of any
Executive Department of the Government, or of any officer of either of
the said Departments whose appointment is not in the head thereof.” Act
of Feb. 20, 1863, ch. 45, § 1, 12 Stat. 656, 656. The 1863 statute allowed
the duties of a vacant office to be performed for up to six months by “the
head of any other Executive Department” or by any other officer in those
departments “whose appointment is vested in the President.” Id.
In 1868, Congress replaced all previous statutes on the subject of va-
cancies with the Vacancies Act of 1868. See Act of July 23, 1868, ch.
227, 15 Stat. 168. That act provided that, “in case of the death, resigna-
tion, absence, or sickness of the head of any executive department of the
government, the first or sole assistant thereof shall . . . perform the duties
of such head until a successor be appointed or the absence or sickness
shall cease.” Id. § 1, 15 Stat. at 168. In lieu of elevating the “first or sole
assistant,” the President could also choose to authorize any other officer
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appointed with the Senate’s advice and consent to perform the duties
of the vacant office until a successor was appointed or the prior occupant
of the position was able to return to his post. Id. § 3, 15 Stat. at 168. In
cases of death or resignation, an acting official could serve for no longer
than ten days. Id. The 1868 act thus eliminated the President’s prior
discretion to fill a vacant office temporarily with someone who did not
hold a Senate-confirmed position. Yet, it preserved the possibility that a
non-Senate-confirmed first assistant would serve as an acting head of an
executive department.
Over the next 120 years, Congress repeatedly amended the Vacancies
Act of 1868, but it never eliminated the possibility that a non-Senate-
confirmed first assistant could serve as an acting head of an executive
department. In 1891, it extended the time limit for acting service in cases
of death or resignation from ten to thirty days. Act of Feb. 6, 1891, ch.
113, 26 Stat. 733. In 1966, it made minor changes during the course of re-
codifying and enacting title 5 of the United States Code. See S. Rep. No.
89-1380, at 20, 70–71 (1966); 5 U.S.C. §§ 3345–3349 (1970). Congress
amended the act once more in 1988, extending the time limit on acting
service from 30 to 120 days and making the statute applicable to offices
that are not in “Departments” and thus are less likely to have Senate-
confirmed first assistants. Pub. L. No. 100-398, § 7(b), 102 Stat. 985, 988
(1988).
Accordingly, for more than two centuries before the Vacancies Reform
Act, Congress demonstrated its belief that the Appointments Clause did
not require Senate confirmation for temporary service in a principal
office, by repeatedly enacting statutes that affirmatively authorized acting
service—even in principal offices at the heads of executive departments—
by persons who did not already hold an appointment made with the Sen-
ate’s advice and consent.
2.
Not only did Congress authorize the Presidents to select officials to
serve temporarily as acting principal officers, but Presidents repeatedly
exercised that power to fill temporarily the vacancies in their administra-
tions that arose from resignations, terminations, illnesses, or absences
from the seat of government. In providing this advice, we have not can-
vassed the entire historical record. But we have done enough to confirm
that Presidents often exercised their powers under the 1792 and 1795
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Designating an Acting Attorney General
statutes to choose persons who did not hold any Senate-confirmed posi-
tion to act temporarily as principal officers in various departments. In the
Washington, Adams, and Jefferson Administrations, other Cabinet offic-
ers (or Chief Justice John Marshall) were used as temporary or “ad inter-
im” officials when offices were vacant between the departure of one
official and the appointment of his successor. See, e.g., Biographical
Directory of the American Congress, 1774–1971, at 13–14 (1971); see id.
at 12 (explaining that the list of Cabinet officers excludes “[s]ubordinates
acting temporarily as heads of departments” and therefore lists only those
who served ad interim after an incumbent’s departure).
President Jefferson made the first designation we have identified of a
non-Senate-confirmed officer to serve temporarily in his Cabinet. On
February 17, 1809, approximately two weeks before the end of the Jeffer-
son Administration, John Smith, the chief clerk of the Department of War,
was designated to serve as Acting Secretary of War. See id. at 14; Letter
from Thomas Jefferson to the War Department (Feb. 17, 1809), National
Archives, Founders Online, https://founders.archives.gov/documents/
Jefferson/99-01-02-9824 (“Whereas, by the resignation of Henry Dear-
borne, late Secretary at War, that office is become vacant. I therefore do
hereby authorize John Smith, chief clerk of the office of the Department
of War, to perform the duties of the said office, until a successor be ap-
pointed.”). As chief clerk, Smith was not a principal officer. He was
instead “an inferior officer . . . appointed by the [Department’s] principal
officer.” Act of Aug. 5, 1789, ch. 6, § 2, 1 Stat. 49, 50. The next Secretary
of War did not enter upon duty until April 8, 1809, five weeks after the
beginning of the Madison Administration. See Biographical Directory
at 14.
Between 1809 and 1860, President Jefferson’s successors designated a
non-Senate-confirmed officer to serve as an acting principal officer in a
Cabinet position on at least 160 other occasions. We have identified 109
additional instances during that period where chief clerks, who were not
Senate confirmed, temporarily served as ad interim Secretary of State (on
51 occasions), Secretary of the Treasury (on 36 occasions), or Secretary
of War (on 22 occasions). See id. at 15–19; 1 Trial of Andrew Johnson,
President of the United States, Before the Senate of the United States, on
Impeachment by the House of Representatives for High Crimes and Mis-
demeanors 575–81, 585–88, 590–91 (Washington, GPO 1868); In re
Asbury Dickins, Rep. C.C. 9, 34th Cong., 1st Sess. at 4–5 (Ct. Cl. 1856)
(listing 18 times between 1829 and 1836 that chief clerk Asbury Dickins
13
Opinions of the Office of Legal Counsel in Volume 42
was “appointed to perform the duties of Secretary of the Treasury” or
Secretary of State “during the absence from the seat of government or
sickness” of those Secretaries, for a total of 359 days). 6 Between 1853 and
1860 there were also at least 21 occasions on which non-Senate-
confirmed Assistant Secretaries were authorized to act as Secretary of the
Treasury. 7
We have also identified instances involving designations of persons
who apparently had no prior position in the federal government, including
Alexander Hamilton’s son, James A. Hamilton, whom President Jackson
directed on his first day in office to “take charge of the Department of
State until Governor [Martin] Van Buren should arrive in the city” three
weeks later. 1 Trial of Andrew Johnson at 575; see Biographical Directo-
ry at 16. President Jackson also twice named William B. Lewis, who held
no other government position, as acting Secretary of War. See 1 Trial of
Andrew Johnson at 575. Moving beyond the offices expressly covered by
the 1792 and 1795 statutes, there were at least 23 additional instances
before 1861 in which Presidents authorized a non-Senate-confirmed chief
clerk to perform temporarily the duties of the Secretary of the Navy (on
21 occasions) or the Secretary of the Interior (on 2 occasions). 8
6 See also Act of July 27, 1789, ch. 4, § 2, 1 Stat. 28, 29 (providing that the chief clerk
in what became the Department of State was “an inferior officer, to be appointed by the
[Department’s] principal officer”); Act of Sept. 2, 1789, ch. 12, § 1, 1 Stat. 65, 65
(providing for an “Assistant to the Secretary of the Treasury,” later known as the chief
clerk, who “shall be appointed by the said Secretary”). The sources cited in the text above
indicate that (1) the following chief clerks served as ad interim Secretary of State: Aaron
Ogden Dayton, Aaron Vail (twice), Asbury Dickins (ten times), Daniel Carroll Brent (five
times), Daniel Fletcher Webster, Jacob L. Martin (three times), John Appleton, John
Graham, Nicholas Philip Trist (four times), Richard K. Cralle, William S. Derrick (fifteen
times), William Hunter (seven times); (2) the following chief clerks served as ad interim
Secretary of the Treasury: Asbury Dickins (eight times), John McGinnis, and McClintock
Young (twenty-seven times); and (3) the following chief clerks (or acting chief clerks)
served as ad interim Secretary of War: Albert Miller Lee, Archibald Campbell (five
times), Christopher Vandeventer, George Graham, John D. McPherson, John Robb (six
times), Philip G. Randolph (five times), Samuel J. Anderson, and William K. Drinkard.
7 See 1 Trial of Andrew Johnson at 580–81, 590–91 (entries for William L. Hodge and
Peter Washington); Act of Mar. 3, 1849, ch. 108, § 13, 9 Stat. 395, 396–97 (providing for
appointment by the Secretary of an “Assistant Secretary of the Treasury”).
8 See Biographical Directory at 14–17 (chief clerks of the Navy in 1809, 1814–15,
1829, 1831, and 1841); id. at 18 (chief clerk of the Department of the Interior, Daniel
C. Goddard, in 1850 (twice)); In re Cornelius Boyle, Rep. C.C. 44, 34th Cong., 3d Sess. at
14
Designating an Acting Attorney General
At the time, it was well understood that when an Acting or ad interim
Secretary already held an office such as chief clerk, he was not simply
performing additional duties, but he was deemed the Acting Secretary.
We know this, because the chief clerks sometimes sought payment for the
performance of those additional duties. Attorney General Legaré conclud-
ed that Chief Clerk McClintock Young had a claim for compensation as
“Secretary of the Treasury ad interim.” Pay of Secretary of the Treasury
ad Interim, 4 Op. Att’y Gen. 122, 122–23 (1842). And the Court of
Claims later concluded that Congress should appropriate funds to com-
pensate such officers for that service. See, e.g., In re Cornelius Boyle,
Rep. C.C. 44, 34th Cong., 3d Sess. at 9, 1857 WL 4155, at *4 (Ct. Cl.
1857) (“The office of Secretary ad interim being a distinct and independ-
ent office in itself, when it is conferred on the chief clerk, it is so con-
ferred not because it pertains to him ex officio, but because the President,
in the exercise of his discretion, sees fit to appoint him[.]”); Dickins, Rep.
C.C. 9, at 16, 1856 WL 4042, at *3.
Congress not only acquiesced in such appointments, but also required
a non-Senate-confirmed officer to serve as a principal officer in some
instances. In 1810, Congress provided that in the case of a vacancy in the
office of the Postmaster General, “all his duties shall be performed by his
senior assistant.” Act of Apr. 30, 1810, ch. 37, § 1, 2 Stat. 592, 593. The
senior assistant was one of two assistants appointed by the Postmaster
General. Id. When Congress reorganized the Post Office in 1836, it again
required that the powers and duties of the Postmaster General would, in
the case of “death, resignation, or absence” “devolve, for the time being
on the First Assistant Postmaster General,” who was still an appointee of
the Postmaster General. Act of July 2, 1836, ch. 270, § 40, 5 Stat. 80, 89.
On four occasions before 1860, a First Assistant Postmaster General
served as Postmaster General ad interim. See Biographical Directory at
17–19 (in 1841 (twice), 1849, and 1859).
On the eve of the Civil War in January 1861, President Buchanan
summarized the Chief Executive’s view of his authority to designate
interim officers in a message submitted to Congress to explain who had
been performing the duties of the Secretary of War:
3, 12–13 (Ct. Cl. 1857) (identifying 13 times between 1831 and 1838 that chief clerk John
Boyle was appointed as Acting Secretary of the Navy, for a total of 466 days).
15
Opinions of the Office of Legal Counsel in Volume 42
The practice of making . . . appointments [under the 1795 statute],
whether in a vacation or during the session of Congress, has been
constantly followed during every administration from the earliest pe-
riod of the government, and its perfect lawfulness has never, to my
knowledge, been questioned or denied. Without going back further
than the year 1829, and without taking into the calculation any but
the chief officers of the several departments, it will be found that
provisional appointments to fill vacancies were made to the number
of one hundred and seventy-nine . . . . Some of them were made
while the Senate was in session, some which were made in vacation
were continued in force long after the Senate assembled. Sometimes,
the temporary officer was the commissioned head of another de-
partment, sometimes a subordinate in the same department.
Message from the President of the United States, S. Exec. Doc. No. 2,
36th Cong., 2d Sess. at 1–2 (Jan. 15, 1861) (emphases added).
3.
When it comes to vacancy statutes, the office of Attorney General pre-
sents an unusual case, albeit not one suggesting any different constitution-
al treatment. The office was established in the Judiciary Act of 1789, see
Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 93, and the Attorney Gen-
eral was a member of the President’s Cabinet, see Office and Duties of
Attorney General, 6 Op. Att’y Gen. 326, 330 (1854). But the Attorney
General did not supervise an “executive department,” and the Department
of Justice was not established until 1870. See Act of June 22, 1870, ch.
150, § 1, 16 Stat. 162, 162. Thus, the terms of the 1792, 1795, and 1863
statutes, and of the Vacancies Act of 1868, did not expressly apply to
vacancies in the office of the Attorney General.
Even so, the President made “temporary appointment[s]” to the office
of Attorney General on a number of occasions. In 1854, Attorney General
Cushing noted that “proof exists in the files of the department that tempo-
rary appointment has been made by the President in that office.” Office
and Duties of Attorney General, 6 Op. Att’y Gen. at 352. Because the
1792 and 1795 statutes did not provide the President with express authori-
ty for those temporary appointments, Cushing believed it “questionable”
whether the President had the power, but he also suggested that “[p]erhaps
the truer view of the question is to consider the two statutes as declaratory
only, and to assume that the power to make such temporary appointment
16
Designating an Acting Attorney General
is a constitutional one.” Id. Cushing nonetheless recommended the enact-
ment of “a general provision . . . to remove all doubt on the subject” for
the Attorney General and “other non-enumerated departments.” Id.
Congress did not immediately remedy the problem that Cushing identi-
fied, but Presidents designated Acting Attorneys General, both before and
after the Cushing opinion. In some instances, the President chose an
officer who already held another Senate-confirmed office. See Acting
Attorneys General, 8 Op. O.L.C. 39, 40–41 (1984) (identifying instances
in 1848 and 1868 involving the Secretary of the Navy or the Secretary of
the Interior). 9 In other instances, however, non-Senate-confirmed individ-
uals served. After the resignation of Attorney General James Speed, for
instance, Assistant Attorney General J. Hubley Ashton was the ad interim
Attorney General from July 17 to July 23, 1866. See id. at 41; Biograph-
ical Directory at 20. At the time, the Assistant Attorney General was
appointed by the Attorney General alone. See Act of March 3, 1859, ch.
80, 11 Stat. 410, 420 (“[T]he Attorney-General . . . is hereby[] authorized
to appoint one assistant in the said office, learned in the law, at an annual
salary of three thousand dollars[.]”). 10
On other occasions between 1859 and 1868, Ashton and other Assistant
Attorneys General who had not been Senate confirmed also signed several
formal legal opinions as “Acting Attorney General,” presumably when
their incumbent Attorney General was absent or otherwise unavailable.
See Case of Colonel Gates, 11 Op. Att’y Gen. 70, 70 (1864) (noting that
9 This list is almost certainly under-inclusive because the published sources we have
located identify only those who were Acting Attorney General during a period between
the resignation of one Attorney General and the appointment of his successor. They do
not identify individuals who may have performed the functions and duties of Attorney
General when an incumbent Attorney General was temporarily unavailable on account
of an absence or sickness that would now trigger either 28 U.S.C. § 508(a) or 5 U.S.C.
§ 3345(a).
10 In 1868, Congress created two new Assistant Attorneys General positions to be “ap-
pointed by the President, by and with the advice and consent of the Senate,” and specified
that those positions were “in lieu of,” among others, “the assistant attorney-general now
provided for by law,” which was “abolished” effective on July 1, 1868. Act of June 25,
1868, ch. 71, § 5, 15 Stat. 75, 75. A few weeks later, Ashton was confirmed by the Senate
as an Assistant Attorney General. See S. Exec. J., 40th Cong. 2d Sess. 369 (July 25,
1868). He was therefore holding a Senate-confirmed office when he served another stint
as Acting Attorney General for several days at the beginning of the Grant Administration
in March 1869, see Biographical Directory at 21, and when he signed five opinions as
“Acting Attorney General” in September and October 1868.
17
Opinions of the Office of Legal Counsel in Volume 42
the question from the President “reached this office in [the Attorney
General’s] absence”). 11 In 1873, when Congress reconciled the Vacancies
Act of 1868 with the Department of Justice’s organic statute, it expressly
excepted the office of Attorney General from the general provision grant-
ing the President power to choose who would temporarily fill a vacant
Senate-confirmed office. See Rev. Stat. § 179 (1st ed. 1875), 18 Stat. pt.
1, at 27. There is accordingly no Attorney General-specific practice with
respect to the pre-1998 statutes.
B.
Well before the Supreme Court’s foundational decision in Eaton in
1898, courts approved of the proposition that acting officers are entitled to
payment for services during their temporary appointments as principal
officers. See, e.g., United States v. White, 28 F. Cas. 586, 587 (C.C.D.
Md. 1851) (Taney, Circuit J.) (“[I]t often happens that, in unexpected
contingencies, and for temporary purposes, the appointment of a person
already in office, to execute the duties of another office, is more conven-
ient and useful to the public, than to bring in a new officer to execute the
duty.”); Dickins, Rep. C.C. 9, at 17, 1856 WL 4042, at *3 (finding a chief
clerk was entitled to additional compensation “for his services[] as acting
Secretary of the Treasury and as acting Secretary of State”). Most signifi-
cantly, in Boyle, the Court of Claims concluded that the chief clerk of the
Navy (who was not Senate confirmed) had properly served as Acting
Secretary of the Navy on an intermittent basis over seven years for a total
of 466 days. Rep. C.C. 44, at 8, 1857 WL 4155, at *1–2 (1857). The court
expressly addressed the Appointments Clause question and distinguished,
for constitutional purposes, between the office of Secretary of the Navy
and the office of Acting Secretary of the Navy. Id. at 8, 1857 WL 4155 at
*3 (“It seems to us . . . plain that the office of Secretary ad interim is a
distinct and independent office in itself. It is not the office of Secre-
11There were two additional opinions signed by Ashton as “Acting Attorney General”
in 1864 and 1865 (11 Op. Att’y Gen. 482; 11 Op. Att’y Gen. 127); as well as four signed
as “Acting Attorney General” by Assistant Attorney General John Binckley in 1867 (12
Op. Att’y Gen. 231; 12 Op. Att’y Gen. 229; 12 Op. Att’y Gen 222; 12 Op. Att’y Gen.
227); two signed as “Acting Attorney General” by Assistant Attorney General Titian J.
Coffey in 1862 and 1863 (10 Op. Att’y Gen. 492; 10 Op. Att’y Gen. 377); and one signed
as “Acting Attorney General” by Assistant Attorney General Alfred B. McCalmont in
1859 (9 Op. Att’y Gen. 389).
18
Designating an Acting Attorney General
tary[.]”). Furthermore, the court emphasized, the defining feature of the
office of Secretary ad interim was its “temporary” character, and it must
therefore be considered an inferior office:
Congress has exercised the power of vesting the appointment of a
Secretary ad interim in the President alone, and we think, in perfect
consistency with the Constitution of the United States. We do not
think that there can be any doubt that he is an inferior officer, in the
sense of the Constitution, whose appointment may be vested by
Congress in the President alone.
Id.
When the Supreme Court addressed this Appointments Clause issue in
1898, it reached a similar conclusion. In United States v. Eaton, the Court
considered whether Congress could authorize the President alone to
appoint a subordinate officer “charged with the duty of temporarily per-
forming the functions” of a principal officer. 169 U.S. at 343. The statute
authorized the President “to provide for the appointment of vice-consuls
. . . in such manner and under such regulations as he shall deem proper.”
Id. at 336 (quoting Rev. Stat. § 1695 (2d ed. 1878), 18 Stat. pt. 1, at 303
(repl. vol.)). The President’s regulation provided that “[i]n case a vacancy
occurs in the offices both of the consul and the vice-consul, which re-
quires the appointment of a person to perform temporarily the duties of
the consulate, the diplomatic representative has authority to make such
appointment, with the consent of the foreign government . . . immediate
notice being given to the Department of State.” Id. at 338 (quoting regula-
tion). Pursuant to that authority, Sempronius Boyd, who was the diplo-
matic representative and consul-general to Siam, appointed Lewis Eaton
(then a missionary who was not employed by the government) as a vice-
consul-general and directed him to take charge of the consulate after
Boyd’s departure. Id. at 331–32. With the “knowledge” and “approval” of
the Department of State, Eaton remained in charge of the consulate, at
times calling himself “acting consul-general of the United States at Bang-
kok,” from July 12, 1892, until a successor vice-consul-general arrived on
May 18, 1893. Id. at 332–33. In a dispute between Boyd’s widow and
Eaton over salary payments, the Court upheld Eaton’s appointment, and
the underlying statutory scheme, against an Appointments Clause chal-
lenge. Id. at 334–35, 352.
The Constitution expressly includes “Consuls” in the category of offic-
ers whose appointment requires the Senate’s advice and consent. U.S.
19
Opinions of the Office of Legal Counsel in Volume 42
Const. art. II, § 2, cl. 2. The Eaton Court, however, concluded that a
“vice-consul” is an inferior officer whose appointment Congress may
“vest in the President” alone. 169 U.S. at 343. The Court held that Eaton’s
exercise of the authority of a Senate-confirmed office did not transform
him into an officer requiring Senate confirmation:
Because the subordinate officer is charged with the performance of
the duty of the superior for a limited time and under special and
temporary conditions, he is not thereby transformed into the superior
and permanent official. To so hold would render void any and every
delegation of power to an inferior to perform under any circumstanc-
es or exigency the duties of a superior officer, and the discharge of
administrative duties would be seriously hindered.
Id. The Court concluded that more than forty years of practice “sustain the
theory that a vice-consul is a mere subordinate official,” which defeated
the contention that Eaton’s appointment required Senate confirmation. Id.
at 344. In so doing, the Court cited Attorney General Cushing’s 1855
opinion about appointments of consular officials, which had articulated
the parameters for that practice. See id. 12 Significantly, the Court also
made clear that its holding was not limited to vice-consuls or to the exi-
gencies of Eaton’s particular appointment. Rather, the Court emphasized
that the temporary performance of a principal office is not the same as
holding that office itself. The Court feared that a contrary holding would
bear upon “any and every delegation of power to an inferior to perform
under any circumstances or exigency.” Id. at 343 (emphasis added). In
view of the long history of such appointments, Eaton simply confirmed
the general rule. It did not work any innovation in that practice.
The Court has not retreated from Eaton, or narrowed its holding, but
instead has repeatedly cited the decision for the proposition that an inferi-
or officer may temporarily perform the duties of a principal officer with-
out Senate confirmation. In Edmond, the Court observed that “‘inferior
officers’ are officers whose work is directed and supervised at some level
by others who were appointed by Presidential nomination with the advice
12In the 1855 opinion, Attorney General Cushing explained that a vice-consul is “the
person employed to fill the [consul’s] place temporarily in his absence.” Appointment of
Consuls, 7 Op. Att’y Gen. 242, 262 (1855). He noted that consuls had to be Senate-
confirmed, but vice-consuls were regarded as the “subordinates of consuls” and therefore
did not require “nomination to the Senate.” Id. at 247.
20
Designating an Acting Attorney General
and consent of the Senate.” 520 U.S. at 663. But the Court also observed
that there is no “exclusive criterion for distinguishing between principal
and inferior officers” and restated Eaton’s holding that “a vice consul
charged temporarily with the duties of the consul” is an “inferior” officer.
Id. at 661. In Morrison, the Court emphasized that a subordinate who
performed a principal officer’s duties “for a limited time and under spe-
cial and temporary conditions” is not “thereby transformed into the supe-
rior and permanent official,” and explained that a vice-consul appointed
during the consul’s “temporary absence” remained a “subordinate officer
notwithstanding the Appointment Clause’s specific reference to ‘Consuls’
as principal officers.” 487 U.S. at 672–73 (quoting Eaton, 169 U.S. at
343). Justice Scalia’s dissenting opinion in Morrison similarly described
Eaton as holding that “the appointment by an Executive Branch official
other than the President of a ‘vice-consul,’ charged with the duty of
temporarily performing the function of the consul, did not violate the
Appointments Clause.” Id. at 721 (Scalia, J., dissenting). Likewise, in his
dissenting opinion in Free Enterprise Fund v. Public Company Account-
ing Oversight Board, 537 F.3d 667 (D.C. Cir. 2008), aff ’d in part and
rev’d in part, 561 U.S. 447 (2010), then-Judge Kavanaugh cited Eaton to
establish that “[t]he temporary nature of the office is the . . . reason that
acting heads of departments are permitted to exercise authority without
Senate confirmation.” Id. at 708 n.17 (Kavanaugh, J., dissenting). Nota-
bly, Judge Kavanaugh also cited our 2003 opinion, which concluded that
an OMB official who was not Senate confirmed could serve as Acting
Director of OMB. See id. (citing Acting Director of OMB, 27 Op. O.L.C.
at 123).
In SW General, the Court acknowledged the long history of Acts of
Congress permitting the President to authorize officials to temporarily
perform the functions of vacant offices requiring Senate approval. 137
S. Ct. at 935. Although the Court’s opinion did not address the Appoint-
ments Clause, Justice Thomas’s concurring opinion suggested that a
presidential directive to serve as an officer under the Vacancies Reform
Act should be viewed as an appointment, and that such a direction would
“raise[] grave constitutional concerns because the Appointments Clause
forbids the President to appoint principal officers without the advice and
consent of the Senate.” Id. at 946. But Justice Thomas also distinguished
Eaton on the ground that the acting designation at issue in SW General
was not “special and temporary” because it had remained in place “for
more than three years in offices limited by statute to a 4-year term.” Id. at
21
 Opinions of the Office of Legal Counsel in Volume 42
946 n.1. Justice Thomas’s opinion may therefore be understood to be
consistent not only with Eaton, but also with the precedents of this Office,
which have found it “implicit” that “the tenure of an Acting Director
should not continue beyond a reasonable time.” Continuing Service of
Deputy Director of OMB as Acting Director During Vacancy, 1 Op.
O.L.C. 287, 289–90 (1977). Even under Justice Thomas’s opinion, Mr.
Whitaker’s designation as Acting Attorney General, which was made one
week ago, and which would lapse in the absence of a presidential nomina-
tion, should qualify as “special and temporary” under Eaton.
C.
Executive practice and more recent legislation reinforces that an inferi-
or officer may temporarily act in the place of a principal officer. In 1980,
for instance, this Office raised no constitutional concerns in concluding
(in the context of a non-executive office) that the Comptroller General
was statutorily authorized to “designate an employee” of the General
Accounting Office to be Acting Comptroller General during the absence
or incapacity of both the Senate-confirmed Comptroller General and the
Senate-confirmed Deputy Comptroller General. Authority of the Comp-
troller General to Appoint an Acting Comptroller General, 4B Op. O.L.C.
690, 690–91 (1980).
Most significantly, in 2003, this Office relied on Eaton in concluding
that, although “the position of Director [of OMB] is a principal office, . . .
an Acting Director [of OMB] is only an inferior officer.” Acting Director
of OMB, 27 Op. O.L.C. at 123. We did not think that that conclusion had
been called into question by Edmond ’s statement that an inferior officer is
one who reports to a superior officer below the President, because in that
case “[t]he Court held only that ‘[g]enerally speaking’ an inferior officer
is subordinate to an officer other than the President,” and because Edmond
did not deal with temporary officers. 27 Op. O.L.C. at 124 (citations
omitted). Assuming that for constitutional purposes the official designated
as acting head of an agency would need to be an inferior officer (and that
the OMB official in question was not already such an officer), we further
concluded that the President’s designation of an acting officer under the
Act should be regarded as an appointment by the President alone—
a constitutionally permissible mode for appointing an inferior officer.
Id. at 125. Since then, Presidents George W. Bush and Obama each used
their authority under the Vacancies Reform Act to place non-Senate-
22
Designating an Acting Attorney General
confirmed Chiefs of Staff in the lines of succession to be the acting head
of several federal agencies. 13 In three instances, President Obama placed a
Chief of Staff above at least one Senate-confirmed officer within the same
department. 14 And, in practice, during the Bush, Obama, and Trump
Administrations, multiple unconfirmed officers were designated to serve
as acting agency heads, either under the Vacancies Reform Act or another
office-specific statute. 15 Those determinations reflect the judgments of
13 See Memorandum, Designation of Officers of the Social Security Administration, 71
Fed. Reg. 20333 (Apr. 17, 2006); Memorandum, Designation of Officers of the Council
on Environmental Quality, 73 Fed. Reg. 54487 (Sept. 18, 2008) (later superseded by 2017
memorandum cited below); Memorandum, Designation of Officers of the Overseas
Private Investment Corporation to Act as President of the Overseas Private Investment
Corporation, 76 Fed. Reg. 33613 (June 6, 2011); Memorandum, Designation of Officers
of the Millennium Challenge Corporation to Act as Chief Executive Officer of the Mil-
lennium Challenge Corporation, 77 Fed. Reg. 31161 (May 21, 2012); Memorandum,
Designation of Officers of the General Services Administration to Act as Administrator of
General Services, 78 Fed. Reg. 59161 (Sept. 20, 2013); Memorandum, Designation of
Officers of the Office of Personnel Management to Act as Director of the Office of
Personnel Management, 81 Fed. Reg. 54715 (Aug. 12, 2016); Memorandum, Providing an
Order of Succession Within the National Endowment of the Humanities, 81 Fed. Reg.
54717 (Aug. 12, 2016); Memorandum, Providing an Order of Succession Within the
National Endowment of the Arts, 81 Fed. Reg. 96335 (Dec. 23, 2016); Memorandum,
Designation of Officers or Employees of the Office of Science and Technology Policy to
Act as Director, 82 Fed. Reg. 7625 (Jan. 13, 2017); Memorandum, Providing an Order of
Succession Within the Council on Environmental Quality, 82 Fed. Reg. 7627 (Jan. 13,
2017).
14 See Executive Order 13612, Providing an Order of Succession Within the Depart-
ment of Agriculture, 77 Fed. Reg. 31153 (May 21, 2012); Executive Order 13735, Provid-
ing an Order of Succession Within the Department of the Treasury, 81 Fed. Reg. 54709
(Aug. 12, 2016); Executive Order 13736, Providing an Order of Succession Within the
Department of Veterans Affairs, 81 Fed. Reg. 54711 (Aug. 12, 2016).
15 For example, during this administration, Grace Bochenek, a non-Senate-confirmed
laboratory director, served as Acting Secretary of Energy from January 20, 2017, until
March 2, 2017; Tim Horne, a non-Senate-confirmed Regional Commissioner, served as
Acting Administrator of the General Services Administration from January 20, 2017, until
December 12, 2017 (pursuant to a designation under a GSA-specific statute); Phil Rosen-
felt, a non-Senate-confirmed Deputy General Counsel, served as Acting Secretary of
Education from January 20, 2017, until February 7, 2017 (pursuant to a designation under
a statute specific to that department); Don Wright, a non-Senate-confirmed Deputy
Assistant Secretary, served as Acting Secretary of Health and Human Services from
September 30, 2017, until October 10, 2017; Peter O’Rourke, a non-Senate-confirmed
Chief of Staff, served as Acting Secretary of Veterans Affairs from May 29, 2018, until
July 30, 2018; and Shelia Crowley, a non-Senate-confirmed Chief of Operations, served,
23
Opinions of the Office of Legal Counsel in Volume 42
these administrations that the President may lawfully designate an uncon-
firmed official, including a Chief of Staff, to serve as an acting principal
officer.
Congress too has determined in the Vacancies Reform Act and many
other currently operative statutes that non-Senate-confirmed officials may
temporarily perform the functions of principal officers. By its terms, the
Vacancies Reform Act applies to nearly all executive offices for which
appointment “is required to be made by the President, by and with the
advice and consent of the Senate.” 5 U.S.C. § 3345(a); see id. § 3349c(1)–
(3) (excluding only certain members of multi-member boards, commis-
sions, or similar entities). And it specifically provides for different treat-
ment in some respects depending on whether the vacant office is that of
an agency head. Id. § 3348(b)(2). Moreover, the statute contemplates that
non-Senate-confirmed officials will be able to serve as acting officers in
certain applications of section 3345(a)(1) as well as in all applications of
section 3345(a)(3), which refers to an “officer or employee.” The latter
provision had no counterpart in the Vacancies Act of 1868, but it was not
completely novel, because clerks, who were not Senate-confirmed, were
routinely authorized to serve as acting officers under the 1792 and 1795
statutes. 16
Congress has also enacted various statutes that enable deputies not con-
firmed by the Senate to act when the office of the Senate-confirmed agen-
cy head is vacant. See 12 U.S.C. § 4512(f ) (providing for an Acting Direc-
tor of the Federal Housing Finance Agency); id. § 5491(b)(5) (providing
for an Acting Director of the Bureau of Consumer Financial Protection);
upon President’s Obama’s designation, as Acting Director of the Peace Corps from
January 20, 2017, until November 16, 2017. During the Obama administration, Darryl
Hairston, a career employee, served as Acting Administrator of the Small Business
Administration from January 22, 2009, until April 6, 2009, and Edward Hugler, a non-
Senate-confirmed Deputy Assistant Secretary, served as Acting Secretary of Labor from
February 2, 2009, until February 24, 2009. During the Bush Administration, Augustine
Smythe, a non-Senate-confirmed Executive Associate Director served as Acting Director
of OMB from June 10, 2003, until late June 2003, consistent with our opinion.
16 Echoing the movement in the early nineteenth century to chief clerks rather than
Senate-confirmed officials from other departments, section 3345(a)(3) was reportedly the
product of a desire to give the President “more flexibility” to use “qualified individuals
who have worked within the agency in which the vacancy occurs for a minimum number
of days and who are of a minimum grade level.” S. Rep. No. 105-250, at 31 (additional
views of Sen. Glenn et al.); id. at 35 (minority views of Sens. Durbin and Akaka).
24
Designating an Acting Attorney General
21 U.S.C. § 1703(a)(3) (providing for an Acting Director of the Office of
National Drug Control Policy); 40 U.S.C. § 302(b) (providing for an
Acting Administrator of the General Services Administration); 44 U.S.C.
§ 2103(c) (providing for an Acting Archivist). All of those provisions
contemplate the temporary service of non-Senate-confirmed officials as
acting principal officers, and these statutes would appear to be unconstitu-
tional if only a Senate-confirmed officer could temporarily serve as an
acting principal officer.
Similarly, other current statutes provide that, although the deputy is
appointed by the President with the Senate’s advice and consent, the
President or the department head may designate another official to act
as the agency head, even though that official is not Senate-confirmed.
See 20 U.S.C. § 3412(a)(1) (providing that “[t]he Secretary [of Education]
shall designate the order in which other officials of the Department shall
act for and perform the functions of the Secretary . . . in the event of
vacancies in both” the Secretary and Deputy Secretary positions); 31
U.S.C. § 502(f ) (providing that the President may designate “an officer of
the Office [of Management and Budget] to act as Director”); 38 U.S.C.
§ 304 (providing that the Deputy Secretary of Veterans Affairs serves as
Acting Secretary “[u]nless the President designates another officer of the
Government”); 42 U.S.C. § 7132(a) (providing that “[t]he Secretary [of
Energy] shall designate the order in which the Under Secretary and other
officials shall act for and perform the functions of the Secretary . . . in the
event of vacancies in both” the Secretary and Deputy Secretary positions);
49 U.S.C. § 102(e) (providing that the Secretary of Transportation shall
establish an order of succession that includes Assistant Secretaries who
are not Senate-confirmed for instances in which the offices of the Secre-
tary, Deputy Secretary, and Under Secretary of Transportation for Policy
are vacant); 40 U.S.C. § 302(b) (providing that the Deputy Administrator
serves as Acting Administrator of General Services when that office “is
vacant,” “unless the President designates another officer of the Federal
Government”); cf. 44 U.S.C. § 304 (limiting the individuals whom the
President may choose to serve as Acting Director of the Government
Printing Office to those who occupy offices requiring presidential ap-
pointment with the Senate’s advice and consent).
Indeed, if it were unconstitutional for an official without Senate con-
firmation to serve temporarily as an acting agency head, then the recent
controversy over the Acting Director of the CFPB should have been
resolved on that ground alone—even though it was never raised by any
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Opinions of the Office of Legal Counsel in Volume 42
party, the district court, or the judges at the appellate argument. On No-
vember 24, 2017, the Director of the CFPB appointed a new Deputy
Director, expecting that she would become the Acting Director upon his
resignation later that day. Acting Director of CFPB, 41 Op. O.L.C. __,
at *2 n.1. The Director of the CFPB relied on 12 U.S.C. § 5491(b)(5),
which expressly contemplates that a non-Senate-confirmed official (the
Deputy Director) will act as a principal officer (the Director). The Presi-
dent, however, exercised his authority under 5 U.S.C. § 3345(a)(2) to
designate the Director of OMB as Acting Director of the CFPB. See
English, 279 F. Supp. 3d at 330. When the Deputy Director challenged the
President’s action, we are not aware that anyone ever contended that the
Deputy Director was constitutionally ineligible to serve as Acting Direc-
tor because she had not been confirmed by the Senate. If the newly in-
stalled Deputy Director of the CFPB could lawfully have become the
Acting Director, then the Chief of Staff to the Attorney General may serve
as Acting Attorney General in the case of a vacancy.
D.
The constitutionality of Mr. Whitaker’s designation as Acting Attorney
General is supported by Supreme Court precedent, by acts of Congress
passed in three different centuries, and by countless examples of execu-
tive practice. To say that the Appointments Clause now prohibits the
President from designating Mr. Whitaker as Acting Attorney General
would mean that the Vacancies Reform Act and a dozen statutes were
unconstitutional, as were countless prior instances of temporary service
going back to at least the Jefferson Administration.
There is no question that Senate confirmation is an important constitu-
tional check on the President’s appointments of senior officers. The
Senate’s role “serves both to curb Executive abuses of the appointment
power, and to promote a judicious choice of [persons] for filling the
offices of the union.” Edmond, 520 U.S. at 659 (internal quotation marks
omitted). At the same time, the “constitutional process of Presidential
appointment and Senate confirmation . . . can take time: The President
may not promptly settle on a nominee to fill an office; the Senate may be
unable, or unwilling, to speedily confirm the nominee once submitted.”
SW General, 137 S. Ct. at 935. Despite their frequent disagreements over
nominees, for over 200 years, Congress and the President have agreed
upon the value and permissibility of using temporary appointments,
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Designating an Acting Attorney General
pursuant to limits set by Congress, in order to overcome the delays of the
confirmation process.
If the President could not rely on temporary designations for principal
offices, then the efficient functioning of the Executive Branch would be
severely compromised. Because most Senate-confirmed officials resign at
the end of an administration, a new President must rely on acting officials
to serve until nominees have been confirmed. If Senate confirmation were
required before anyone could serve, then the Senate could frustrate the
appropriate functioning of the Executive Branch by blocking the confir-
mation of principal officers for some time. See 144 Cong. Rec. 27496
(Oct. 21, 1998) (statement of Sen. Thompson) (noting that section
3345(a)(3) had been added because “[c]oncerns had been raised that,
particularly early in a presidential administration, there will sometimes
be vacancies in first assistant positions, and that there will not be a large
number of Senate-confirmed officers in the government,” as well as
“concerns . . . about designating too many Senate-confirmed persons from
other offices to serve as acting officers in additional positions”). A politi-
cal dispute with the Senate could frustrate the President’s ability to exe-
cute the laws by delaying the appointment of his principal officers.
The problems with a contrary rule are not limited to the beginning of an
administration. Many agencies would run into problems on an ongoing
basis, because they have few officers subject to Senate confirmation.
Thus, when a vacancy in the top spot arises, such an agency would either
lack a head or be forced to rely upon reinforcements from Senate-
confirmed appointees outside the agency. Those outside officers may be
inefficient choices when a non-Senate-confirmed officer within the agen-
cy is more qualified to act as a temporary caretaker. At best, designating
a Senate-confirmed officer to perform temporary services would solve
a problem at one agency only by cannibalizing the senior personnel of
another.
It is true that these concerns do not apply to the current circumstances
of the Department of Justice, which is staffed by a number of Senate-
confirmed officers. Following Attorney General Sessions’s resignation,
the President could have relied upon the Deputy Attorney General, the
Solicitor General, or an Assistant Attorney General to serve as Acting
Attorney General. But the availability of potential alternatives does not
disable Congress from providing the President with discretion to desig-
nate other persons under section 3345(a)(3) of the Vacancies Reform Act.
Nothing in the text of the Constitution or historical practice suggests that
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Opinions of the Office of Legal Counsel in Volume 42
the President may turn to an official who has not been confirmed by the
Senate if, but only if, there is no appropriate Senate-confirmed official
available.
III.
The President’s designation to serve as Acting Attorney General of
a senior Department of Justice official who does not currently hold a
Senate-confirmed office is expressly authorized by 5 U.S.C. § 3345(a)(3).
Mr. Whitaker has been designated based upon a statute that permits him
to serve as Acting Attorney General for a limited period, pending the
Senate’s consideration of a nominee for Attorney General. Consistent
with our 2003 opinion, with Eaton, and with two centuries of practice,
we advised that his designation would be lawful.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
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