Now or NeverThe Appointments Clause requires certain offices to be filled by presidential nomination followed by the advice and consent of the Senate (i.e., confirmation). Although the Supreme Court and cabinet-level appointments generate the most press, they are but a small fraction of the Executive and Judicial Branch positions that the President must fill. In the Executive Branch alone, the President must appoint more than 1,000 officials who require Senate confirmation. Appointment to these posts can be a lengthy process and can often leave a position vacant, thus requiring a temporary appointment. To protect its constitutional power in the confirmation process, Congress restricts how long temporary appointees may serve without confirmation.
DespacitoUnlike the lifelong appointments of federal judges, Executive Branch appointees serve at the pleasure of the President. Senate-confirmed positions are typically those that exercise "significant authority" and include assistant secretaries and under secretaries, ambassadors, general counsel, and inspectors general. Each agency is governed by a different statute with different procedures for appointing acting officers; while some roles are filled automatically, others require the President to designate the temporary appointee.
The Federal Vacancies Reform Act of 1998 updated the law to further limit the time an acting official can serve. The law generally limits service in an acting role to no more than 210 days, with an additional 90 days afforded to a change in the presidential administration. In addition, the acting official may serve indefinitely if a nominee for the role has been submitted to the Senate. If a position remains unfilled after the expiration of the time limit, the position should be declared vacant. At that point, the agency head must take responsibility for performing duties assigned to the position, and all non-essential duties must be delegated to other staff.