US. Department of Justice
Of?ce of Legal Counsel

 

 

Of?ce of the Assistant Attorney General Washington, D. C. 20530

November 14, 201 8

MEMORANDUM FOR EMMET T. FLOOD
COUNSEL TO THE PRESIDENT

Re: Designating an Acting Attorney General

After Attorney General Jefferson B. Sessions 111 resigned on November 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 Of?ce had previously advised that the President could
designate a senior Department of Justice of?cial, such as Mr. Whitaker, as Acting Attorney
General, and this memorandum explains 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
suf?ciently 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 speci?ed
under section 508. See Authority of the President to Name an Acting Attorney General, 31 Op.
O.L.C. 208 (2007) (?2007 Acting Attorney General?).

We also advised that Mr. Whitaker?s designation would be consistent with the
Appointments Clause of the US. Constitution, which requires the President to obtain ?the
Advice and Consent of the Senate? before appointing a principal of?cer of the United States.
US. Const. art. 11, 2, cl. 2. Although an Attorney General is a principal of?cer requiring
Senate con?rmation, someone who temporarily performs his duties is not. As all three branches
of government have long recognized, the President may designate an acting of?cial to perform
the duties of a vacant principal of?ce, including a Cabinet of?ce, even when the acting of?cial
has not been con?rmed by the Senate.

Congress did not ?rst authorize the President to direct non-Senate-con?rmed of?cials to
act as principal of?cers in 1998; it did so in multiple statutes starting in 1792. In that year,
Congress authorized the President to ensure the government?s uninterrupted work by designating
persons to perform temporarily the work of vacant of?ces. The President?s authority applied to
principal of?ces and did not require the President to select Senate?con?rmed of?cers. In our
brief survey of the history, we have identi?ed over 160 times before 1860 in which non?Senate-
con?rmed persons performed, on a temporary basis, the duties of such high of?ces 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 of?ce of Attorney General were less

frequent, we have identi?ed at least one period in 1866 when a non-Senate-con?rmed Assistant
Attorney General served as Acting Attorney General. Mr. Whitaker?s designation is no more
constitutionally problematic than countless similar presidential orders dating back over 200
years.

Were the long agreement of Congress and the President insuf?cient, judicial precedent
con?rms the meaning of the Appointments Clause in these circumstances. When Presidents
appointed acting Secretaries in the nineteenth century, those of?cers (or their estates) sometimes
sought payment for their additional duties, and courts recognized the lawfulness of such
appointments. The Supreme Court con?rmed the legal understanding of the Appointments
Clause that had prevailed for over a century in United States v. Eaton, 169 US. 331 (1898),
holding that an inferior of?cer may perform the duties of a principal of?cer ?for a limited time[]
and under special and temporary conditions? without ?transform[ing]? his of?ce into one for
which Senate con?rmation is required. Id. at 343. The Supreme Court has never departed from
Eaton?s holding and has repeatedly relied upon that decision in its recent Appointments Clause
cases.

In the Vacancies Reform Act, Congress renewed the President?s authority to designate
non-Senate?con?rmed senior of?cials to perform the functions and duties of principal of?ces. In
2003, we reviewed the President?s authority in connection with the Director of the Of?cer of
Management and Budget who is a principal of?cer, and concluded that the President
could designate a non?Senate-con?rmed of?cial to serve temporarily as Acting Director. See
Designation of Acting Director of the O?ice of Management and Budget, 27 Op. O.L.C. 121
(2003) (?Acting Director of Presidents George W. Bush and Barack Obama placed non-
Senate-con?rmed of?cials in several lines of agency succession and actually designated
uncon?rmed of?cials as acting agency heads. President Trump, too, has previously exercised
that authority in other departments; Mr. Whitaker is not the ?rst uncon?rmed of?cial to act as
the head of an agency in this administration.

It is no doubt true that Presidents often choose acting principal of?cers from among
Senate?con?rmed of?cers. 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 of?ce requiring Senate con?rmation.

1. 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 mechanisms by which an acting of?cer may
take on the functions and duties of an of?ce, when an executive of?cer 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 of?ce.? 5 U.S.C. 3345(a). First,
absent any other designation, the ??rst assistant? to the vacant of?ce shall perform its functions
and duties. Id. 3345 Second, the President may depart from that default course by
directing another presidential appointee, who is already Senate con?rmed, to perform the
functions and duties of the vacant of?ce. Id. 3345(a)(2). Or, third, the President may
designate an of?cer or employee within the same agency to perform the functions and duties of

the vacant of?ce, 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 of?cer may not be nominated by the President to ?ll the
vacant of?ce and continue acting in it, unless he was already the ?rst assistant to the of?ce for at
least 90 days in the 365 days preceding the vacancy or is a Senate-con?rmed ?rst assistant. Id.

see also Nat 7 Labor Relations Bd. v. SW General, Inc, 137 S. Ct. 929, 941
(201 7).

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 ?rst two categories of persons made
eligible by section 3345(a). He was not the ?rst assistant to the Attorney General, because 28
U.S.C. 5 08(a) identi?es the Deputy Attorney General as the ??rst assistant to the Attorney
General? ?for the purpose of section 3345.? Nor did Mr. Whitaker already hold a Senate-
con?rmed of?ce. 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.

In that position, Mr. Whitaker fell squarely within the third category of of?cials,
identi?ed 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)(l).
Accordingly, under the plain terms of the Vacancies Reform Act, the President could designate

 

1 Attorney General Sessions submitted his resignation [the President?s] request,? Letter for President
Donald J. Trump, from Jefferson B. Sessions 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 of?ce? for purposes of section 3345(a). As this Of?ce recently explained, ?an of?cer is
?unable to perform the functions and duties of the of?ce? during both short periods of unavailability, such as a
period of sickness, and potentially longer ones, such as one resulting from the of?cer?s removal (which would
arguably not be covered by the reference to ?resign[ation]. Designating an Acting Director ofthe Bureau of
Consumer Financial Protection, 41 Op. O.L.C. at *4 (2017); see also Guidance on Application of Federal
Vacancies Reform Act of1998, 23 Op. O.L.C. 60, 61 (1999) (?In ?oor debate, Senators said, by way of example,
that an of?cer would be ?otherwise unable to perform the functions and duties of the of?ce? if he or she were ?red,
imprisoned, or sick?). Indeed, any other interpretation would leave a troubling gap in the ability to name acting
of?cers. For most Senate-con?rmed of?ces, the Vacancies Reform Act is ?the exclusive means? for naming an
acting of?cer. 5 U.S.C. 3347(a). If the statute did not apply in cases of removal, then it would mean that no
acting of?cer?not even the ?rst assistant??could take the place of a removed of?cer, even where the President had
been urgently required to remove the of?cer, for instance, by concerns over national security, corruption, or other
workplace misconduct.

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 General and certain other of?cials 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 someone 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 Acting Director of 0MB, 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 of?cial, but that it remains available as an option to the President. We
reach the same conclusion here: Section 508 does not limit the President?s authority to inVoke
the Vacancies Reform Act to designate an Acting Attorney General.

We previously concluded that section 508 does not prevent the President from relying
upon the Vacancies Reform Act to determine who will be the Acting Attorney General.
Although the Vacancies Reform Act, which ?ordinarily is the exclusive means for naming an
acting of?cer,? 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 of?ce-
speci?c 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 speci?c positions in which
temporary of?cers may serve under the speci?c statutes this bill retains, the Vacancies [Reform]
Act would continue to provide an alternative procedure for temporarily occupying the of?ce.?

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
speci?ed in section 508 (as supplemented by an Attorney General order).

 

2 Under 28 U.S.C. 508(a), in the case of a vacancy in the of?ce of Attorney General, ?the Deputy
Attorney General may exercise all the duties of that of?ce, and for the purpose of [the Vacancies Reform Act] the
Deputy Attorney General is the ?rst assistant to the Attorney General.? If the of?ces 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).

3 One section (entitled ?Exclusion of certain of?ces?) is used to exclude certain of?ces altogether. 5 U.S.C.
3349c. Of?ce-speci?c statutes, however, are mentioned in a different section (entitled ?Exclusivity?) that
generally makes the Vacancies Reform Act ?the exclusive means? for naming an acting of?cer but also speci?es
exceptions to that exclusivity. Id. 3347(a)(l).

At the time of our 2007 Acting Attorney General opinion, the ?rst two of?ces speci?ed 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
Attorney 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 ??rst assistant to the
Attorney General? ?for the purpose of section 3345 of title 5? the provision of the
Vacancies Reform Act providing for the designation of an acting of?cer). 28 U.S.C. 508(a). It
further provides that the Deputy Attorney General ?may? serve as Acting Attorney General, not
that he ?must,? underscoring that the Vacancies Reform Act remains an alternative means of
appointment.4 These statutory cross-references con?rm that section 508 works in conjunction
with, and does not displace, the Vacancies Reform Act.

Although the Deputy Attorney General is the default choice for Acting Attorney General
under section 3345(a)(1), the President retains the authority to invoke the other categories of
eligible of?cials, ?notwithstanding [the ?rst-assistant provision in] paragraph 5 U.S.C.
3345(a)(2), (3). Moreover, there is reason to believe that Congress, in enacting the Vacancies
Reform Act, deliberately chose to make the second and third categories of of?cials in section
3345(a) applicable to the of?ce of Attorney General. Under the previous Vacancies Act,'the ?rst
assistant to an of?ce was also the default choice for ?lling a vacant Senate?con?rmed position,
and the President was generally able to depart from that by selecting another Senate?con?rmed
of?cer. See 5 U.S.C. 3347 (1994). That additional presidential authority, however, was
expressly made inapplicable ?to a vacancy in the of?ce of Attorney General.? see also Rev.
Stat. 179 (2d ed. 1878). Yet, when Congress enacted the Vacancies Reform Act in 1998, it did
away with the exclusion for the of?ce of Attorney General. See 5 U.S.C. 3349c (excluding
certain other 

Our conclusion that the Vacancies Reform Act remains available, notwithstanding
section 508, is consistent with our prior opinions. In Acting Director of OMB, we recognized
that an OMB?speci?c statute, 31 U.S.C. 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 unavailable?). More recently, we con?rmed that the President
could designate an Acting Director of the Bureau of Consumer Financial Protection 

 

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 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 ambiguity arising from the appearance of ?shall? in the CFPB-speci?c statute, section 508 expressly
acknowledges that the Deputy Attorney General is the ?rst assistant but will not necessarily serve in the case of a
vacancy in the of?ce 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 language in a proposed section 3345(0)
that would continue to make section 508 ?applicable? to the of?ce. 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 ?nal 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.

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?speci?c statute should ?interact with the
Vacancies Reform Act in the same way as other, similar statutes providing an of?ce-speci?c
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 ?rst assistant to a vacant of?ce ?shall perform the
functions and duties? of that of?ce unless the President designates someone else to do so,

5 U.S.C. 3345(a), and that mandatory language in either the CF PB-speci?c 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 

Courts have similarly concluded that the Vacancies Reform Act remains available as an
alternative to of?ce-speci?c statutes. See Hooks v. Kitsap Tenant Support Servs., Inc. 816 F.3d
550, 55 5?56 (9th Cir. 2016) (General Counsel of the National Labor Relations Board, which has
its own of?ce-speci?c statute prescribing a method of ?lling a vacancy); English v. rump, 279
F. Supp. 3d 307, 323?24 (D.D.C. 2018) (holding that the mandatory language in the CFPB-
speci?c statute is implicitly quali?ed 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 (DC. Cir. July 13, 2018).

For these reasons, we believe that the President. could invoke the Vacancies Reform Act
in order to designate Mr. Whitaker as Acting Attorney 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
uncon?rmed of?cial as Acting Attorney General, Congress may not authorize an appointment
mechanism that would con?ict with the Constitution. See reytag v. Commissioner, 501 U.S.
868, 883 (1991). The Appointments Clause requires the President to ?appoint? principal
of?cers, such as the Attorney General, ?by and with the Advice and Consent of the Senate.?
U.S. Const., art. 11, 2, cl. 2. But for ?inferior Of?cers,? 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 General is consistent
with the Appointments Clause so long as Acting Attorney General is not a principal of?ce that
requires Senate con?rmation. If so, it does not matter whether an acting of?cial temporarily
?lling a vacant principal of?ce is an inferior of?cer or not an ?of?cer? at all within the meaning
of the Constitution, because Mr. Whitaker was appointed in a manner that satis?es the
requirements for an inferior of?cer: 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 of?ce, however, then section 3345(a)(3) would be unconstitutional as
applied, because Mr. Whitaker does not currently occupy a position requiring Senate
con?rmation.

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 of?cer, who must be appointed 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 of?cers and principal of?cers. Edmond, 520 U.S.
at 661. ?Generally speaking, the term ?inferior of?cer? connotes a relationship with some higher
ranking of?cer or of?cers below the President.? Id at 662. There is no of?cer below the
President who supervises the Attorney General.

Although the Attorney General is a principal of?cer, it does not follow that an Acting
Attorney General should be understood to be one. An of?ce under the Appointments Clause
requires both a ?continuing and permanent? position and the exercise of ?signi?cant authority
pursuant to the laws of the United States.? Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018) (internal
quotation marks omitted); see also Of?cers 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 suf?cient authority to be an ?Of?cer of the United States,? it is less
clear whether Acting Attorney General is a principal of?ce.

Because that question involves the division of powers between the Executive and the
Legislative Branches, ?historical practice? is entitled to ?signi?cant weight.? Nat ?l Labor
Relations Bd v. Noel Canning, 134 S. Ct. 2550, 2559 (2014); see also, e. The Pocket Veto
Case, 279 U.S. 655, 689 (1929). That practice strongly supports the constitutionality of
authorizing someone who has not been Senate?con?rmed to serve as an acting principal of?cer.
Since 1792, Congress has repeatedly legislated on the assumption that temporary service as a
principal of?cer does not require Senate con?rmation. As for the Executive Branch?s practice,
our non?exhaustive survey has identi?ed over 160 occasions between 1809 and 1860 on which
non-Senate?con?rmed persons served temporarily as an acting or ad interim principal of?cer in
the Cabinet.

Furthermore, judicial precedents culminating in United States v. Eaton, 169 U.S. 331
(1898), endorsed that historical practice and con?rm that the temporary nature of acting service
weighs against principal?of?cer status. The Supreme Court in Eaton held that an inferior of?cer
may perform the duties of a principal of?cer ?for a limited time[] and under special and
temporary conditions? without ?transform[ing]? his of?ce into one for which Senate
con?rmation is required. Id. at 343. That holding was not limited to the circumstances of that
case, but instead re?ected a broad consensus about the status of an acting principal of?cer 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 of?cials to temporarily carry out the duties of a vacant PAS of?ce one requiring
Presidential Appointment and Senate con?rmation] in an acting capacity, without Senate
con?rmation.? 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 ?ll vacant of?ces because ?Congress can authorize ?acting? of?cers to perform
the duties associated with a temporarily vacant of?ce?~?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 of?cials eligible to serve as an acting principal
of?cer to those who already have Senate-con?rmed of?ces. This history provides compelling
support for the conclusion that the position of an acting principal of?cer is not itself a principal
of?ce.

9

In 1792, Congress ?rst ?authOrized the appointment of ?any person or persons? to ?ll
speci?c 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 of?ce at all?much less one requiring Senate
con?rmation. Although the 1792 statute ?allowed acting of?cers to serve until the permanent
Of?ceholder could resume his duties or a successor was appointed,? Congress ?imposed a six-
month limit on acting service? in 1795. Id. at 935 (citing Act of Feb. 13, 1795, 'ch. 21, 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 of?ce of ?the head of any Executive Department of the
Government, or of any of?cer 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 of?ce to be performed for up to six months by ?the head of any other
Executive Department? or by any other of?cer in those departments ?whose appointment is
vested in the President.? Id

In 1868, Congress replaced all previous statutes on the subject of vacancies 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, resignation, absence, or sickness of the head of any executive department
of the government, the ?rst 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 ??rst or sole assistant,? the President could also choose to authorize any
other of?cer appointed with the Senate?s advice and consent to perform the duties of the vacant
of?ce 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 of?cial could serve
for no longer than ten days. Id. The 1868 act thus eliminated the President?s prior discretion to
?ll a vacant of?ce temporarily with someone who did not hold a Senate-con?rmed position.
Yet, it preserved the possibility that a non?Senate-con?rmed ?rst 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-con?rmed ?rst 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 orgresignation 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 of?ces that are not in ?Departments?
and thus are less likely to have Senate-con?rmed ?rst assistants. Pub. L. No. 100-398, 
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 con?rmation for
temporary service in a principal of?ce, by repeatedly enacting statutes that af?rmatively
authorized acting service?even in principal of?ces at the heads of executive departments?by
persons who did not already hold an appointment made with the Senate?s advice and consent.

2.

Not only did Congress authorize the Presidents to select of?cials to serve temporarily as
acting principal of?cers, but Presidents repeatedly exercised that power to ?ll temporarily the
vacancies in their administrations that arose from resignations, terminations, illnesses, or
absences from the seat of government. In providing this advice, we have not canvassed the
entire historical record. But we have done enough to con?rm that Presidents often exercised
their powers under the 1792 and 1795 statutes to choose persons who did not hold any Senate-
con?rmed position to act temporarily as principal of?cers in various departments. In the
Washington, Adams, and Jefferson Administrations, other Cabinet of?cers (or Chief Justice John
Marshall) were used as temporary or ?ad interim? of?cials when of?ces were vacant between the
departure of one of?cial and the appointment of his successor. See, e. Biographical Directory
of the American Congress, 1 774497], at 13??14 (1971); see id at 12 (explaining that the list of
Cabinet of?cers 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 ?rst designation we have identi?ed of a non-Senate-
con?rmed of?cer to serve temporarily in his Cabinet. On February 17, 1809, approximately two
weeks before the end of the Jefferson 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), Founders Unline, National
Archives, (??Whereas, by the
resignation of Henry Dearborne, late Secretary at War, that of?ce is become vacant. I therefore
do hereby authorize John Smith, chief clerk of the of?ce of the Department of War, to perform
the duties of the said of?ce, until a successor be appointed?). As chief clerk, Smith was not a
principal of?cer. He was instead ?an inferior of?cer . . . appointed by the [Department?s]
principal of?cer.? 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, ?ve 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-
con?rmed of?cer to serve as an acting principal of?cer in a Cabinet position on at least 160
other occasions. We have identi?ed 109 additional instances during that period where chief
clerks, who were not Senate con?rmed, 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 Misdemeanors, 575?81, 585?88, 590?91 (Washington, GPO 1868); In re Asbury
Dickins, 34th Cong, Sess., Rep. CC. 9, at 4?5 (Ct. C1. 1856) (listing 18 times between 1829
and 1836 that chief clerk Asbury Dickins 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-con?rmed Assistant Secretaries were authorized to act as
Secretary of the Treasury.7

We have also identi?ed 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 ?rst day in of?ce 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 Directory 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 of?ces expressly covered by
the 1792 and 1795 statutes, there were at least 23 additional instances before 1861 in which
Presidents authorized a non-Senate-con?rmed 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

At the time, it was well understood that when an Acting or ad interim Secretary already
held an of?ce 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

 

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 of?cer, 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 (?ve times), Daniel Fletcher Webster, Jacob L. Martin (three times), John
Appleton, John Graham, Nicholas Philip Trist (four times), Richard K. Cralle, William S. Derrick (?fteen 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 (?ve
times), Christopher Vandeventer, George Graham, John D. McPherson, John Robb (six times), Philip G. Randolph
(?ve 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,
34th Cong, 3d Sess., Rep. CC. 44, at 3, 12?13 (Ct. C1. 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).

10

payment for the performance of those additional duties. Attorney General Legar? concluded 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 compensate
such of?cers for that service. See, e. g, In re Cornelius Boyle, 34th Cong, 3d Sess., Rep. CC.
44, at 9, 1857 WL 4155, at *4 (Ct. C1. 1857) (?The of?ce of Secretary ad interim being a distinct
and independent of?ce in itself, when it is conferred on the chief clerk, it is so conferred not
because it pertains to him ex o?icio, but because the President, in the exercise of his discretion,
sees ?t to appoint Dickins, 34 Cong. Rep. CC. 9, at 16, 1856 WL 4042, at 

Congress not only acquiesced in such appointments, but also required a non?Senate?
con?rmed of?cer to serve as a principal of?cer in some instances. In 1810, Congress provided
that in the case of a vacancy in the of?ce 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 I
Congress reorganized the Post Of?ce 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 of?cers in a message submitted to
Congress to explain who had been performing the duties of the Secretary of War:

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 period 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 of?cers of the several departments, it will be found that provisional
appointments to ?ll 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 o?icer was the commissioned head of
another department, sometimes a subordinate in the same department.

Message from the President of the United States, 36th Cong, 2d Sess., Exec. Doc. No. 2, at 1?2
(1861) (emphases added).

3.
When it comes to vacancy statutes, the of?ce of Attorney General presents an unusual
case, albeit not one suggesting any different constitutional treatment. The of?ce was established

in the Judiciary Act of 1789, see Act of Sept. 24, 1789, ch. 20, 35, 1 Stat. 73, 93, and the
Attorney General was a member of the President?s Cabinet, see O?ice and Duties of Attorney

11

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
ofJune 22, 1870, ch. 150, 1, 16 Stat. 162, 162. Thus, the terms 0fthe 1792, 1795, and 1863
statutes, and of the Vacancies Act of 1868, did not expressly apply to vacancies in the of?ce of
the Attorney General.

Even so, the President made ?temporary appointment[s]? to the of?ce of Attorney
General on a number of occasions. In 1854, Attorney General Cushing noted that ?proof exists
in the ?les of the department that temporary appointment has been made by the President in that
of?ce.? Oj?ce 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 authority 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 is a
constitutional one.? Id Cushing nonetheless recommended the enactment 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?ed, but Presidents
designated Acting Attorneys General, both before and after the Cushing opinion. In some
instances, the President chose an of?cer who already held another Senate-con?rmed of?ce. 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?con?rmed individuals 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; Biographical 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 Attorney-General  is hereby[] authorized
to appoint one assistant in the said of?ce, learned in the law, at an annual salary of three
thousand 10

On other occasions between 1859 and 1868, Ashton and other Assistant Attorneys
General who had not been Senate con?rmed also signed several formal legal opinions as ?Acting
Attorney General,? presumably when their incumbent Attorney General was absent or otherwise

 

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 ?appointed by the
President, by and with the advice and consent of the Senate,? and speci?ed 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 con?rmed by the Senate as
an Assistant Attorney General. See 18 Sen. Exec. J. 369 (July 25, 1868). He was therefore holding a Senate-
con?rmed of?ce 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 ?ve opinions as ?Acting
Attorney General? in September and October 1868.

12

unavailable. See Case of Colonel Gates, 11 Op. Att?y Gen. 70, 70 (1864) (noting that the
question from the President ?reached this of?ce 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 of?ce of Attorney General from the general provision
granting the President power to choose who would temporarily ?ll a vacant Senate-con?rmed
of?ce. See Rev. Stat. 179 1st ed. 1875). There is accordingly no Attorney General?speci?c
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 of?cers are entitled to payment for services during their
temporary appointments as principal of?cers. See, e. g. United States v. White, 28 F. Cas. 586,
587 (C.C.D. Md. 1851) (Taney, Circuit J.) often happens that, in unexpected contingencies
and for temporary purposes, the appointment of a person already in of?ce, to execute the duties
of another of?ce, is more convenient and useful to the public, than to bring in a new of?cer to
execute the Dickins, 34 Cong. Rep. CC. 9, at 17, 1856 WL 4042, at *3 (?nding a chief
clerk was entitled to additional compensation ?for his services as acting Secretary of the
Treasury and as acting Secretary of State?). Most signi?cantly, in Boyle, the Court of Claims
concluded that the chief clerk of the Navy (who was not Senate con?rmed) had properly served
as Acting Secretary of the Navy on an intermittent basis over seven years for a total of 466 days.
34 Cong. Rep. CC. 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 of?ce
of Secretary of the Navy and the of?ce of Acting Secretary of the Navy. Id. at 8, 1857 WL 4155
at *3 (?It seems to us . . . plain that the of?ce of Secretary ad interim is a distinct and
independent of?ce in itself. It is not the of?ce of Furthermore, the court
emphasized, the de?ning feature of the of?ce of Secretary ad interim was its ?temporary?
character, and it must therefore be considered an inferior of?ce: 

9

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 of?cer, 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 of?cer ?charged with the duty of
temporarily performing the functions? of a principal of?cer. 169 US. at 343. The statute

 

11 There 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).

'13

authorized the President ?to provide for the appointment of vice-consuls . . . in such a manner
and under such regulations as he shall deem proper.? Id. at 336 (quoting Rev. Stat. 1695 (2d
ed. 1878)). The President?s regulation provided that case a vacancy occurs in the of?ces
both of the consul and the vice?consul, which requires 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 regulation). Pursuant to that authority, Sempronius
Boyd, who was the diplomatic 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 Bangkok,? 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 challenge.
Id. at 334?35, 352.

The Constitution expressly includes ?Consuls? in the category of of?cers whose
appointment requires the Senate?s advice and consent. US. Const. art. ll, 2, cl. 2. The Eaton
Court, however, concluded that a ?Vice?consul? is an inferior of?cer whose appointment
Congress may ?vest in the President? alone. 169 US. at 343. The Court held that Eaton?s
exercise of the authority of a Senate-con?rmed of?ce did not transform him into an of?cer
requiring Senate con?rmation:

Because the subordinate of?cer 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 of?cial. To so hold would
render void any and every delegation of power to an inferior to perform under any
circumstances or exigency the duties of a superior of?cer, 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 of?cial,? which defeated the contention that Eaton?s appointment
required Senate con?rmation. Id at 344. In so doing, the Court cited Attorney General
Cushing?s 1855 opinion about appointments of consular of?cials, which had articulated the
parameters for that practice. See id.12 Signi?cantly, the Court also made clear that its holding
was not limited to vice-consuls or to the exigencies of Eaton?s particular appointment. Rather,
the Court emphasized that the temporary performance of a principal of?ce is not the same as
holding that of?ce 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

 

12 In the 1855 opinion, Attorney General Cushing explained that a vice-consul is ?the person employed to
?ll 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-con?rmed, but vice?consuls were regarded as the ?subordinates of consuls? and
therefore did not require ?nomination to the Senate.? Id. at 247.

14

343 (emphasis added). In View of the long history of such appointments, Eaton simply
con?rmed 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 inferior of?cer may temporarily perform
the duties of a principal of?cer without Senate con?rmation. In Edmond, the Court observed
that ??inferior of?cers? are of?cers whose work is directed and supervised at some level by
others who were appointed by Presidential nomination with the advice 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 of?cers? and restated Eaton?s holding that ?a vice
consul charged temporarily with the duties of the consul? is an ?inferior? of?cer. Id at 661. In
Morrison, the Court emphasized that a subordinate who performed a principal of?cer?s duties
?for a limited time and under special and temporary conditions? is not ?thereby transformed into
the superior and permanent of?cial,? and explained that a Vice-consul appointed during the
consul?s ?temporary absence? remained a ?subordinate of?cer 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 of?cial other than the President
of a ?vice-consul,? charged with the duty of temporarily preforming the function of the consul,
did not violate the Appointments Clause.? Id. at 721 (Scalia, ., dissenting). Likewise, in his
dissenting opinion in Free Enterprise Fund v. Public Company Accounting Oversight Board, 537
F.3d 667 (DC. Cir. 2008), a??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 of?ce is the . . . reason
that acting heads of departments are permitted to exercise authority without Senate
con?rmation.? Id at 708 n.17 (Kavanaugh, J. dissenting). Notably, Judge Kavanaugh also cited
our 2003 opinion, which concluded that an OMB of?cial who was not Senate con?rmed could
serve as Acting Director of OMB. See id. (citing Acting Director of 0MB, 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 of?cials to temporarily perform the functions of vacant of?ces
requiring Senate approval. 137 S. Ct. at 935. Although the Court?s opinion did not address the
Appointments Clause, Justice Thomas?s concurring opinion suggested that a presidential
directive to serve as an of?cer 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 of?cers without the advice and
consent of the Senate.? Id. 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 of?ces limited by statute to a 4-year term.? Id. at
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 Of?ce, which have found it ?implicit? that ?the tenure
of an Acting Director should not continue beyond a reasonable time.? Status 0fthe Acting
Director, O?ice of Management and Budget, 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 nomination, should
qualify as ?special and temporary? under Eaton.

15

C.

Executive practice and more recent legislation reinforces that an inferior of?cer may
temporarily act in the place of a principal of?cer. In 1980, for instance, this Of?ce raised no
constitutional concerns in concluding (in the context of a non-executive of?ce) that the
Comptroller General was statutorily authorized to ?designate an employee? of the General
Accounting Of?ce to be Acting Comptroller General during the absence or incapacity of both the
Senate?con?rmed Comptroller General and the Senate?con?rmed Deputy Comptroller General.
Authority of the Comptroller General to Appoint an Acting Comptroller General, 4B Op. O.L.C.
690, 690?91 (1980).

Most signi?cantly, in 2003, this Of?ce relied on Eaton in concluding that, although ?the
position of Director [of is a principal of?ce, . . . an Acting Director [of is only an
inferior of?cer.? 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 ?5 statement that an inferior of?cer is one
who reports to a superior of?cer below the President, because in that case ?[t]he Court held only
that [g]enerally speaking? an inferior of?cer is subordinate to an of?cer other than the
President,? and because Edmond did not deal with temporary of?cers. 27 Op. O.L.C. at 124
(citations omitted). Assuming that for constitutional purposes the of?cial designated as acting
head of an agency would need to be an inferior of?cer (and that the OMB of?cial in question
was not already such an of?cer), we further concluded that the President?s designation of an
acting of?cer under the Act should be regarded as an appointment by the President alone?a
constitutionally permissible mode for appointing an inferior of?cer. Id. at 125. Since then,
Presidents George W. Bush and Obama each used their authority under the Vacancies Reform
Act to place non?Senate-con?rmed 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-con?rmed of?cer within the same department.14 And, in practice, during the
Bush, Obama, and Trump Administrations, multiple uncon?rmed of?cers were designated to
serve as acting agency heads, either under the Vacancies Reform Act or another of?ce?speci?c

 

13 See Memorandum, Designation of Of?cers of the Social Security Administration, 71 Fed. Reg. 20333
(Apr. 17, 2006); Memorandum, Designation of Of?cers of the Council on Environmental Quality, 73 Fed. Reg.
54487 (Sept. 18, 2008) (later superseded by 2017 memorandum cited below); Memorandum, Designation of
Of?cers 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 Of?cers of the Millennium
Challenge Corporation to Act as Chief Executive Of?cer of the Millennium Challenge Corporation, 77 Fed. Reg.
31161 (May 21, 2012); Memorandum, Designation of Of?cers of the General Services Administration to Act as
Administrator of General Services, 78 Fed. Reg. 59161 (Sept. 20, 2013); Memorandum, Designation of Of?cers of
the Of?ce of Personnel Management to Act as Director of the Of?ce 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 Of?cers or
Employees of the Of?ce 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 Department of Agriculture, 77
Fed. Reg. 31153 (May 21, 2012); Executive Order 13735, Providing an Order 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).

16

statute.15 Those determinations re?ect the judgments of these administrations that the President
may lawfully designate an uncon?rmed of?cial, including a Chief of Staff, to serve as an acting
principal of?cer.

Congress too has determined in the Vacancies Reform Act and many other currently
operative statutes that non-Senate?con?rmed of?cials may temporarily perform the functions of
principal of?cers. By its terms, the Vacancies Reform Act applies to nearly all executive of?ces
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 (excluding only certain
members of multi-member boards, commissions, or similar entities). And it speci?cally
provides for different treatment in some respects depending on whether the vacant of?ce is that
of an agency head. Id 3348(b)(2). Moreover, the statute contemplates that non-Senate?
con?rmed of?cials will be able to serve as acting of?cers in certain applications of section
3345(a)(1) as well as in all applications of section 3345(a)(3), which refers to an ?of?cer 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?con?rmed, were routinely authorized to
serve as acting of?cers under the 1792 and 1795 statutes.16

Congress has also enacted various statutes that enable deputies not con?rmed by the
Senate to act when the of?ce of the Senate?con?rmed agency head is vacant. See 12 U.S.C.
4512(f) (providing for an Acting Director of the Federal Housing Finance Agency); id
549l(b)(5) (providing for an Acting Director of the Bureau of Consumer Financial Protection);
21 U.S.C. 1703(a)(3) (providing for an Acting Director of the Of?ce 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?con?rmed of?cials as acting

 

15 For example, during this administration, Grace Bochenek, a non?Senate-con?rmed laboratory director,
served as Acting Secretary of Energy from January 20, 2017, until March 2, 2017; Tim Home, a non-Senate-
con?rmed 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-speci?c statute); Phil Rosenfelt,
a non-Senate-con?rmed Deputy General Counsel, served as Acting Secretary of Education from January 20, 2017,
until February 7, 2017 (pursuant to a designation under a statute speci?c to that department); Don Wright, a non-
Senate-con?rmed 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-con?rmed Chief of Staff, served as
Acting Secretary of Veterans Affairs from May 29, 2018, until July 30, 2018; and Shelia Crowley, a non?Senate-
con?rmed Chief of Operations, served, 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-con?rmed Deputy Assistant Secretary, served as Acting Secretary
of Labor from February 2, 2009, until February 24, 2009. During the Bush Administration, Augustine a
non-Senate-con?rmed 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-con?rmed
of?cials from other departments, section 3345(a)(3) was reportedly the product of a desire to give the President
?more ?exibility? to use ?quali?ed 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 id at 35 (minority views of Sens. Durbin and Akaka).

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principal of?cers, and these statutes would appear to be unconstitutional if only a Senate-
con?rmed of?cer could temporarily serve as an acting principal of?cer.

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 of?cial to act as the agency head, even though that of?cial is not Senate-
con?rmed. See 20 U.S.C. 3412(a)( 1) (providing that ?[t]he Secretary [of Education] shall
designate the order in which other of?cials 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 of?cer
of the Of?ce [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 of?cer 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 of?cials
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?con?rmed for instances in which the of?ces of the Secretary, Deputy Secretary, and
Under Secretary of Transportation for Policy are vacant); 4O U.S.C. 302(b) (providing that the
Deputy Administrator serves as Acting Administrator of General Services when that of?ce ?is
vacant,? ?unless the President designates another of?cer 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 Of?ce to those who occupy of?ces requiring presidential
appointment with the Senate?s advice and consent).

Indeed, if it were unconstitutional for an of?cial without Senate con?rmation 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
party, the district court, or the judges at the appellate argument. On November 24, 2017, the
Director of the CF PB 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?con?rmed of?cial (the Deputy Director) will act as a principal
of?cer (the Director). The President, however, exercised his authority under 5 U.S.C.
3345(a)(2) to designate the Director of OMB as Acting Director of the CF PB. 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 Director because she had not been con?rmed by the Senate. If the newly
installed 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 executive practice. To say that the Appointments Clause now

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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 con?rmation is an important constitutional check on the
President?s appointments of senior of?cers. The Senate?s role ?serves both to curb Executive
abuses of the appointment power, and to promote a judicious choice of [persons] for ?lling the
of?ces of the union.? Edmond, 520 US. at 659 (internal quotation marks omitted). At the same
time, the ?constitutional process of Presidential appointment and Senate con?rmation . . . can
take time: The President may not settle on a nominee to ?ll an of?ce; the Senate may
be unable, or unwilling, to speedily con?rm 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, pursuant to limits set by Congress, in order to overcome the delays of the
con?rmation process.

If the President could not rely on temporary designations for principal of?ces, then the
ef?cient functioning of the Executive Branch would be severely compromised. Because most
Senate?con?rmed of?cials resign at the end of an administration, a new President must rely on
acting of?cials to serve until nominees have been con?rmed. If Senate con?rmation were
required before anyone could serve, then the Senate could frustrate the appropriate functioning of
the Executive Branch by blocking the con?rmation of principal of?cers 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 ?rst assistant positions, and that there will
not be a large number of Senate?con?rmed of?cers in the government,? as well as ?concerns . . .
about designating too many Senate-con?rmed persons from other of?ces to serve as acting
of?cers in additional positions?). A political dispute with the Senate could frustrate the
President?s ability to execute the laws by delaying the appointment of his principal of?cers.

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 of?cers
subject to Senate con?rmation. 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?con?rmed
appointees outside the agency. Those outside of?cers may be inef?cient choices when a non-
Senate-confirmed of?cer within the agency is more quali?ed to act as a temporary caretaker. At
best, designating a Senate-con?rmed of?cer 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-con?rmed of?cers. 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 designate 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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the President may turn to an of?cial who has not been con?rmed by the Senate if, but only if,
there is no appropriate Senate?con?rmed of?cial available.



The President?s designation to serve as Acting Attorney General of a senior Department
of Justice of?cial who does not currently hold a Senate-con?rmed of?ce 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.

yo

STEVEN A. ENGEL
Assistant Attorney General

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