It’s not through recess appointments—it’s via the Federal Vacancies Reform Act.
President-elect Donald Trump’s Nov. 10 tweet on the possibility of recess appointments for his nominees set off a flurry of analysis and concern that he would use this route to circumvent the Senate. But recess appointments are hard to effectuate. And there is a different and entirely lawful route for Trump to appoint loyalists to senior executive branch positions without Senate confirmation: the Federal Vacancies Reform Act (FVRA).
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FVRA establishes rules for presidents to appoint “temporary” acting officials to (potentially very lengthy) positions for which Senate advice and consent is otherwise needed. It applies whenever a vacancy occurs because a Senate-confirmed official “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”
Trump’s announcement late last month that he will nominate Kash Patel to be director of the FBI is a great example of how FVRA might work. Patel likely won’t be confirmed for weeks or months after Trump becomes president on Jan. 20, if ever. But current FBI Director Christopher Wray will either resign before Jan. 20 or be fired on that date. If these events occur, a crucial issue for the incoming Trump administration is to determine who will be acting FBI director on Jan. 20.
Under FVRA, Trump could appoint someone as acting FBI director for potentially more than two years without Senate confirmation. The importance of FVRA goes far beyond Patel, since it gives the president broad authority to skirt the Senate and appoint loyalists to Senate-confirmed positions throughout the executive branch on an “acting” basis.
The FBI succession regulation will determine in the first instance who runs the FBI if Wray resigns before Jan. 20, or is fired on that date. During the period after Wray leaves (by whatever means) and Patel or someone else is confirmed as FBI director, Deputy FBI Director Paul Abbate—assuming he doesn’t resign and isn’t fired—would be first in succession to be acting director under the regulation, until Trump as president chooses otherwise. (Since Wray named Abbate as deputy director in 2021, I assume Abbate is unlikely to be viewed with favor by the incoming Trump administration.) After Abbate comes the associate deputy, then executive assistant director of the National Security Branch, followed by several other senior career officials.
The regulation sets the succession default—a default that accords with Trump’s first option to name an acting director under FVRA, since that option is to replace Wray with “the first assistant to the office.” But FVRA gives Trump two additional options to replace Abbate or a different regulation-specified successor as acting director of the FBI.
First, Trump could choose any Senate-confirmed officer from anywhere in the administration to serve as acting director. That means that Trump could name anyone the Senate confirms for any position in the Trump administration to serve as acting FBI director. This implication of FVRA raises the stakes for every Trump appointment before the Senate.
Second, Trump can choose any FBI official whose rate of pay is “equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule” and who has been in the FBI for 90 days during the previous year. There are several hundred people in the FBI whose rate of pay is equal to or greater than a GS-15 position. I expect that the Trump team is currently scouring this group for a loyalist who can be ensconced on Jan. 20. (There are other restrictions under 5 U.S.C. § 3345 that I think are not plausibly relevant here.)
Someone appointed by Trump through either of these mechanisms could run the FBI for a long time. An acting official appointed at the beginning of an administration can serve for 300 days. But the clock would stop running when Trump formally nominates Patel and during his pending nomination. If the Senate rejects Patel, or Patel withdraws, the clock is reset for 210 days. If Trump nominates a second unconfirmable candidate who is rejected, the clock starts yet again. Anne Joseph O’Connell in the definitive work on FVRA says this scheme in theory permits an acting official to serve for more than two and a half years. (I recommend O’Connell’s work for all matters related to FVRA.)
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Viewed through the FVRA lens, the Patel nomination is a win-win for Trump. If the Senate confirms him, Trump wins. But the Patel nomination may be a lengthy affair. If the Senate rejects him or he withdraws, the length of the process, followed by what may be another controversial nominee, gives the president another win: the backup option of a loyalist atop the FBI for a long time without Senate confirmation. Trump has the option, that is, if he can find such a loyalist in an already-confirmed official at GS-15 pay or greater within the FBI, or in an official who has been confirmed for some other slot in the administration.
I am confident the Trump team has thought through the FVRA gambit described above. The Trump administration used (or tried to circumvent) FVRA in imaginative ways, including many not mentioned here, during its first term. (For more details see chapter 13 of my book with Bob Bauer, “After Trump.”) The Trump team has been planning hard since 2021 to exploit every legal avenue for a reelected Trump to impose his will maximally throughout the executive branch.
Moreover, the first Trump administration was not by a mile the first to fill many senior executive branch positions with acting officials for a long time. The loophole-filled FVRA was a (failed) congressional response in 1988 to President Bill Clinton’s perceived manipulation of the prior Vacancies Act. As Bob Bauer and I explained in “After Trump,” the George W. Bush and Obama administrations used acting officials under FVRA aggressively.
The FVRA path is thus well trod in the executive branch. And the use of FVRA as described above to appoint acting officials is perfectly lawful since Congress in its wisdom expressly authorized it.
FVRA applies to basically all vacancies in Senate-confirmed offices throughout the executive branch, including cabinet-level officials. Remember Acting Attorney General Matthew Whitaker? Trump chose him to run the department after Trump fired Jeff Sessions and until William Barr was confirmed. Because Whitaker had been Sessions’s chief of staff at a pay rate equal to or greater than GS-15 for over a year, Trump could appoint him as acting attorney general under 5 U.S.C. § 3345 (a)(3). The Office of Legal Council (OLC) approved the move even though the Justice Department has a specific succession statute for the attorney general at 28 U.S.C. § 508. Section 508, OLC concluded, did not “displace the President’s authority to use [FVRA] as an alternative.”
“After Trump” described the FVRA scenario above and many other FVRA loopholes, and proposed reforms to narrow presidential discretion to circumvent the Senate (in exchange for Congress significantly reducing the number of Senate-filled positions). This proposal, like so many others to reconstruct the presidency, got nowhere in the past four years.
I should for completion’s sake note two caveats to the above analysis. First, if Wray stays on and forces Trump to fire him, Trump’s authority under FVRA to replace him could narrow. The reason is that it is unsettled whether a vacancy created by presidential firing triggers the FVRA authority due to the officeholder being “unable to perform the functions and duties of the office” under 5 U.S.C. § 3345. (On that issue, and some of the possible implications, see this terrific student Note.)
Second, the president has other options to deal with vacancies. He could achieve the functional equivalent of acting officials by circumventing FVRA through delegation of the tasks of the vacant office. (O’Connell discusses how this works in her piece. Bauer and I describe it at pages 318-19 and 324-25 in “After Trump.”) Or he could try again what he did in his first term with Ken Cuccinelli in the U.S. Citizenship and Immigration Services (USCIS). When a vacancy at the head of USCIS appeared, the agency created a new “principal deputy position” that the president filled with Cuccinelli. Cuccinelli with that step became the “first assistant” and then, under the FVRA, the acting director of USCIS. Although a federal district court declared the arrangement unlawful under FVRA, the matter is not settled.
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I’ve been surprised by the excessive attention given to recess appointments and the relative dearth of attention given to the president’s options under FVRA. As Bauer and I wrote in “After Trump“:
[FVRA] gives the president pretty broad discretion, with fairly long time periods, to appoint acting officials for vacant Senate-confirmable slots. And presidents have used this authority as they saw fit. The need to do so grew after the Supreme Court’s decision in NLRB v. Noel Canning and the Senate practice of conducting pro forma sessions practically killed the possibility of recess appointments.
FVRA is the way that Trump will put in place loyalists for Senate-confirmed positions throughout the administration until the Senate confirms someone for the slot—which in some cases could be a while. Recess appointments are largely a distraction.
– Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003. Published courtesy of Lawfare.
