Acting Officials and Delegated Officials in Federal Agencies

The federal bureaucracy relies on both political appointees and careerists to operate effectively. There are currently over 1200 agency positions that are supposed to be filled through the presidential nomination and Senate confirmation process; these jobs are known as PAS positions (Presidential Appointee in a Position Requiring Senate Confirmation). But there are staggering “vacancies” in these positions–at the start of every administration but also at other times, including in the final months (and years) of a president’s tenure. Many of these “vacant” positions can be filled temporarily.

Namely, the Federal Vacancies Reform Act of 1998 provides for temporary leadership primarily in executive agencies. The Act specifies who can serve in an acting capacity, for how long, and in what positions. Actions taken by an official not serving in accordance with the Act generally cannot take effect, unless Congress enacts legislation. After the time limits (which can vary by timing in the administration and nomination status) established by the Act have passed, however, agencies can often continue to function through delegations of authority (mostly “down” to lower level officials but sometimes “up” to the agency leader).

This policy lab will focus on current federal agency practices in the face of vacancies in top positions. Professor O’Connell has been selected by the Administrative Conference of the United States, an independent federal agency dedicated to improving regulatory and administrative processes in government through consensus-driven applied research, to lead a study and draft agency recommendations. These recommendations will be deliberated and voted on first by an ACUS committee and, if approved, then by the ACUS’s full membership in the fall. Past ACUS studies and recommendations on other topics are available here:

This policy lab will focus on several issues: 1. Prevalence of Acting Officials – To date, there has been no systematic investigation of acting officials. Using data from the Government Accountability Office on vacancies and acting officials for the past two completed administrations and the first two years of the current administration, we will provide an empirical portrait of acting leaders–by agency, position, and time in an administration. For some agencies, we will try to classify the acting officials as either careerists or political appointees. 2. Agency Practices – Using case studies conducted by students in the policy lab, we will examine how agencies operate when confronted with vacancies in positions that must be filled by PAS leaders. Specifically, through news searches, a survey, and agency interviews, we will seek information on the following topics for a number of agencies: whether and how an agency fills vacant PAS positions (including the development and modification of succession plans and the use of senior careerists); whether and how it uses delegation of authority within the agency; whether and how it tracks the Vacancies Acts time limits and use of relevant titles; other practices it employs when top positions are empty; and how it uses the Office of Legal Counsel’s guidance on the Act. 3. Recommendations – Based on the first two items, we will then identify best practices and craft recommendations for agencies. Students will work in teams, with each team allocated a cluster of agencies. The teams will investigate the prevalence of acting officials (and delegated authority) in their agencies. In addition, the teams will analyze survey responses on agency practices and will conduct interviews with senior officials in their agencies. Students will be doing careful primary and secondary factual investigation work, analyzing GAO and other agency data (including from a survey of agencies), and interacting with agency officials. Some of this work may require travel to Washington, D.C. to better understand agency practices.

This policy lab is open to all J.D. students at the law school. Having taken Administrative Law is desired but not necessary. If you are interested in enrolling in this policy lab, please email a brief statement of interest and your resume. Students wishing to undertake R credit will perform additional research for a full report analyzing the issues and results of the team research. R credit is possible only by consent of the instructor. After the term begins, and with the consent of the instructor, students accepted into the course may transfer from section (01) into section (02), which meets the R requirement.

See course details
Consent of Instructor Form


Clients & Deliverables

Client: Administrative Conference of the United States

Deliverables: Client briefing and research supporting full report to ACUS in 2020