Term Year 2016

NLRB v. SW General, Inc

Article II of the Constitution requires that the President obtain “the Advice and Consent of the Senate” before appointing “Officers of the United States.” §2, cl. 2. Given this provision, the responsibilities of an office requiring Presidential appointment and Senate confirmation (PAS office) may go unperformed if a vacancy arises and the President and Senate cannot promptly agree on a replacement. Congress has accounted for this reality by giving the President limited authority to appoint acting officials to temporarily perform the functions of a vacant PAS office without first obtaining Senate approval. The current version of that authorization is the Federal Vacancies Reform Act of 1998 (FVRA).

Section 3345(a) of the FVRA permits three categories of Government officials to perform acting service in a vacant PAS office. Subsection (a)(1) prescribes the general rule that, if a vacancy arises in a PAS office, the first assistant to that office “shall perform” the office’s “functions and duties temporarily in an acting capacity.” Subsections (a)(2) and (a)(3) provide that, “notwithstanding paragraph (1),” the President “may direct” a person already serving in another PAS office, or a senior employee in the relevant agency, to serve in an acting capacity instead. Section 3345 also makes certain individuals ineligible for acting service. Subsection (b)(1) states: “Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section” if the President nominates him for the vacant PAS office and, during the 365-day period preceding the vacancy, the person “did not serve in the position of first assistant” to that office or “served in [that] position . . . for less than 90 days.” The general counsel of the National Lab