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03/21/2021

Ronald Krotoszynski & Atticus DeProspo: Advice and Consent, Faithful Execution, and the Vacancies Reform Act
Michael Ramsey

Ronald J. Krotoszynski Jr. (University of Alabama - School of Law) & Atticus DeProspo (Law Clerk to the Hon. Peter W. Hall, U.S. Court of Appeals for the Second Circuit) have posted Squaring a Circle: Advice and Consent, Faithful Execution, and the Vacancies Reform Act (55 Georgia Law Review 731 (2021)) (85 pages) on SSRN.  Here is the abstract:

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

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

Via Larry Solum at Legal Theory Blog, who says "Highly Recommended."