Acting Accountability and Confirmation Integrity

Restoring Senate Advice-and-Consent Through Time-Limited Acting Service, Anti-Delegation Guardrails, and "Caretaker Mode"

Executive Summary

The U.S. Constitution designs a deliberate trade: Presidents nominate principal federal officers, and the Senate confirms them.³ This "advice and consent" check is not ceremonial—it is the main democratic accountability mechanism for who runs the agencies that regulate markets, administer benefits, enforce civil rights, manage disasters, and protect national security.³

Yet a persistent "vacancy loophole" increasingly allows Presidents of either party to run major agencies for long periods with unconfirmed leadership, often by cycling "acting" officials or by using broad delegations of authority that mimic acting service without triggering the law's time limits.¹² The result is a structural incentive problem: if acting service is "good enough," the political cost of waiting out confirmation falls, and the constitutional check becomes optional in practice.¹²

This problem is not theoretical. Under the Federal Vacancies Reform Act of 1998 (FVRA), acting service can last for significant stretches, and the clock can be extended through nomination timing rules and other mechanisms.⁴⁵ Oversight bodies have also documented chronic compliance problems, including incomplete reporting and recurring legal disputes about whether particular "acting" leaders are lawful.⁶⁷⁸ In high-stakes contexts, uncertainty about the legality of leadership can cascade into operational risk, litigation, delayed decisions, and costly reversals.⁶⁸⁹

The urgency is amplified by public distrust and institutional strain. As of September 2025, only 17% of Americans say they trust the federal government to do what is right "just about always" or "most of the time."¹⁹ Meanwhile, majorities consistently support checks on presidential power and the basic principle of separated powers.¹⁷¹⁸ In plain language: people want government to work, but they also want guardrails.

The solution: the Vacancy Loophole Closure Act

This paper synthesizes the legislative mechanics and policy rationale from Document B (proposed act architecture) and Document A (source library and empirical/legal grounding) into a unified reform: the Vacancy Loophole Closure Act.¹²

At its core, the Act would:

1. Impose a hard, one-shot acting limit (90 days) for Senate-confirmed offices, eliminating "shadow extensions."¹
2. Create a "Caretaker Mode" after day 90: the agency keeps running day-to-day, but major, high-discretion decisions are limited unless a Senate-confirmed officer is in place (or a narrow emergency exception is triggered).¹
3. Stop delegation end-runs by treating certain delegations during a vacancy as de facto acting service subject to the same limits and disclosure rules.¹¹¹²
4. Add transparency and enforceability via a public vacancies/acting dashboard, standardized reporting, and strengthened consequences for unlawful service.¹⁶⁷¹⁰
5. Align incentives by requiring prompt nomination and providing Senate process guardrails so both branches bear responsibility for filling leadership roles.¹⁵

Expected outcomes

If enacted, the reform would:

• Restore constitutional checks by making prolonged, unconfirmed leadership structurally difficult.³⁴
• Improve operational stability by reducing legal ambiguity and leadership churn, and by reducing litigation risk tied to unlawful acting service.⁸⁹¹⁰
• Increase accountability and public visibility, enabling press, watchdogs, and Congress to monitor vacancies and acting arrangements in real time.¹⁶⁷
• Maintain continuity through caretaker governance and limited emergency exceptions—ensuring agencies still function while preserving the Senate's role.¹²⁰

In effect, the Act treats prolonged vacancies as what they are: not a convenience, but a constitutional and governance failure that demands a predictable, enforceable response.¹²⁴

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The Problem Statement

1) The constitutional function: advice-and-consent is the legitimacy mechanism

The Appointments Clause assigns the power to nominate principal officers to the President, but requires Senate confirmation to vest lawful authority in those officers.³ This structure is meant to (a) prevent unilateral staffing of powerful offices, (b) impose vetting and accountability, and (c) promote stability by ensuring leaders have recognized legal standing.³

When agencies are led for long periods by unconfirmed officials, two predictable harms arise:

• Accountability leakage: leadership is effectively chosen by a single branch, weakening checks intended by the Constitution.³
• Risk of legal fragility: decisions can be challenged as ultra vires or void, creating downstream uncertainty and cost.⁸⁹¹⁰

2) The statutory gap: FVRA flexibility has become a loophole

FVRA was designed to provide temporary continuity when vacancies occur, but it does so by authorizing acting service under specified conditions and time limits.⁴⁵ The modern reality is that these rules can still allow extended acting control—particularly when combined with nomination timing, strategic vacancies, and broad delegations that blur the line between "acting" and "delegated."¹²⁴⁵

Separately, Congress and oversight entities have repeatedly had to clarify FVRA's constraints through litigation, guidance, and watchdog decisions.⁶⁸⁹¹¹ One of the most important enforcement backstops is that certain actions taken by unauthorized acting officials may have "no force or effect," and may not be ratified in some circumstances.¹⁰ This is a strong remedy on paper—but it is also reactive: it often requires a challenge after harm has already occurred.

3) Compliance and transparency failures: we cannot manage what we cannot see

Oversight reviews have found that agencies do not always follow FVRA's reporting expectations or internal controls.⁶ This matters because a time-limit statute without transparent reporting becomes effectively self-policing.

Key documented issues include:

• Incomplete vacancy reporting and inconsistent agency procedures.⁶
• Recurring episodes of disputed or unlawful acting service, requiring GAO or courts to intervene.⁷⁸⁹

Transparency is not a side feature here—it is the enforcement substrate.

4) Governance costs: prolonged vacancies degrade performance and raise risk

A large research and practitioner literature links prolonged vacancies and heavy reliance on actings to organizational drift, weaker coordination, and slower or less coherent policy execution.¹²¹³¹⁴

Two mechanisms are especially relevant:

• Authority discount: acting leaders often have weaker perceived mandate, which can reduce interagency leverage and deter long-term decisions (even when legally permissible).¹²¹⁴
• Incentive distortion: if a President can govern through actings indefinitely, the political payoff of investing in confirmable nominees and Senate coalition-building declines.¹²¹³

In short: the vacancy loophole is not just a process quirk. It is a constitutional check that is becoming optional by default.

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The Proposed Reform

This section merges the mechanics proposed in Document B with the legal/empirical foundation assembled in Document A, translating both into an implementable legislative blueprint.¹²

A) Scope and definitions

Covered offices. The Act applies to all positions requiring Senate confirmation ("PAS" offices), including principal officers and covered high-level deputies.¹⁴
Covered service. "Acting service" is defined functionally: if an individual is exercising the powers of a PAS office during a vacancy—whether via formal FVRA designation or by delegation that effectively substitutes for that office's core authorities—then the time limits and disclosure rules apply.¹¹¹²
Core/nondelegable duties. The Act codifies and clarifies which duties cannot be reassigned to evade the statute (building on existing FVRA concepts and ACUS guidance).¹⁰¹²

B) The core rule: a hard 90-day acting cap (one shot per vacancy)

Rule. An individual may serve as an acting officer for no more than 90 days per vacancy in a covered PAS office.¹
One-shot design. The cap applies per vacancy, not per person. Rotating through multiple actings does not reset the clock.¹
No "shadow extensions." Resets tied to late nominations or serial withdrawals are eliminated or sharply constrained to prevent strategic delay.¹⁴⁵

Rationale. A hard cap creates a predictable incentive: either (1) nominate and confirm a leader, or (2) accept that the agency will operate under caretaker constraints until confirmation.¹²

C) "Caretaker Mode" after day 90 (continuity without major discretionary action)

After day 90—if the PAS office is still vacant and no Senate-confirmed officer is in place—the agency automatically enters Caretaker Mode.¹

Caretaker Mode preserves essential continuity while preventing irreversible or high-discretion moves that effectively substitute for confirmed leadership. The model draws on established "caretaker conventions" used in other Westminster-style systems: routine governance continues, but major commitments are deferred or handled with cross-party consultation.²⁰

Allowed in Caretaker Mode (examples):

• Routine administration and enforcement actions consistent with established policy.¹
• Actions necessary to protect life, safety, property, or comply with court orders.¹
• Implementation of laws/rules already adopted before the vacancy.²⁰
• Budget execution, personnel matters, and oversight/reporting.
• Interagency coordination on existing programs.

Restricted in Caretaker Mode (examples):

• Major rulemakings or policy shifts with wide discretion.
• Significant resource reallocations or strategic commitments beyond current fiscal year.
• High-discretion enforcement priorities (except in emergencies).
• Long-term contracts or binding agreements (above a statutory threshold).

Emergency exception. The Act would provide a narrow window for urgent actions that cannot wait for confirmation—but these actions would require simultaneous (or near-immediate) notification to Congress, and GAO review authority to verify necessity.¹²⁰

D) Anti-delegation guardrails (preventing workarounds)

The Act closes a common evasion route: delegating core statutory authority to a subordinate officer during a vacancy, thereby keeping the leadership slot "technically" open while someone else exercises its functions.¹¹¹²

Rule. If a delegation substantially replicates the role of the vacant PAS office, it counts as acting service and triggers the 90-day clock and disclosure rules.¹¹¹¹²
Clarification process. ACUS or a designated office publishes a list of "nondelegable" core duties for major PAS offices (drawing on statute, precedent, and case law). Agencies can seek clarification through an administrative process with expedited timelines.¹²
Enforcement. Undisclosed delegations that function as acting service are subject to the same "no force or effect" provision that applies to unlawful acting appointments under current FVRA.¹⁰

E) Transparency and enforcement (making accountability real)

Public vacancies dashboard. The Office of Personnel Management (OPM) or a designated entity maintains a centralized, real-time dashboard of all PAS vacancies, acting designations, delegation arrangements that trigger the Act's coverage, and the remaining days before Caretaker Mode.¹⁶⁷

Standardized reporting. Agencies report acting service and covered delegations within a short window (e.g., 5 business days), using standardized formats and templates.⁶¹⁶

GAO/IG audit authority. GAO gains explicit authority to audit compliance, and inspectors general are required to flag potential violations in semiannual reports.⁷⁹

Consequences for unlawful service. Actions taken in violation of the time limits or disclosure requirements have "no force or effect," consistent with current FVRA enforcement principles.¹⁰ The Act would also allow courts to appoint temporary receivers or caretaker managers in egregious cases of noncompliance.

F) Senate and nomination process incentives (both branches own the problem)

Presidential side. The President must submit a formal nomination within 30 days of a vacancy (with limited exceptions for unanticipated departures), or the office automatically enters Caretaker Mode at day 60 instead of day 90.¹⁵

Senate side. The Act encourages (but does not mandate) procedural reforms to expedite committee hearings and floor votes on uncontested nominees, and to establish clear timelines for providing feedback on nominations.¹⁵

Shared accountability. If a nomination is pending in good faith but the Senate has not acted, the caretaker restrictions can be slightly loosened to allow limited operational flexibility—subject to ongoing transparency requirements and GAO oversight.¹¹⁵

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Impact Analysis

1) Empirical foundation: prolonged vacancies harm governance and legitimacy

Research on federal leadership vacancies consistently finds that extended acting service correlates with:

• Weaker agency performance and less policy coherence, because acting leaders hesitate to make long-term commitments or lack the perceived mandate to settle disputes.¹²¹³¹⁴
• Higher legal risk and operational disruption, as actions by unlawfully designated actings can be voided or challenged.⁸⁹¹⁰
• Reduced accountability, since acting officials are less visible to the public and can be rotated out quickly when controversial decisions arise.¹²¹³

Meanwhile, tracking data from Partnership for Public Service and related sources shows that vacancy rates and acting-service durations have trended upward in recent administrations, suggesting a normalization of the loophole.¹⁶

2) Legal foundation: FVRA has enforcement gaps that invite strategic behavior

FVRA's original design assumes good-faith compliance. In practice:

• Nomination timing loopholes allow extensions via late or serial withdrawals.⁴⁵
• Delegation ambiguity permits functional acting service without triggering time limits or reporting.¹¹¹²
• Weak enforcement tools rely on ex post litigation or GAO opinions, which often come too late to prevent harm.⁷⁸⁹

The Vacancy Loophole Closure Act corrects these gaps by (a) hardening the time limits, (b) closing delegation workarounds, and (c) shifting transparency and enforcement from reactive to real-time.

3) Comparative and constitutional logic: caretaker governance is not radical

The idea that governments can operate under constrained, continuity-focused authority during leadership transitions is well-established internationally and in U.S. state/local contexts.²⁰ Caretaker Mode does not prevent day-to-day administration; it prevents major, discretionary policy shifts that should require Senate-confirmed leadership.

Constitutionally, the Act reinforces rather than undermines the separation of powers: it makes advice-and-consent a credible constraint by removing the workaround of indefinite acting service.³

4) Precedents: caretaker governance is a proven continuity model

Caretaker conventions are a longstanding governance practice in several parliamentary systems: routine administration continues, but major decisions and commitments are avoided unless unavoidable (often with consultation).²⁰ The Vacancy Loophole Closure Act adapts this logic to the U.S. separation-of-powers context: caretaker mode is not political theater; it is a continuity mechanism that protects legitimacy.

5) Implementation considerations and mitigations

Concern: What if the Senate delays confirmations?
Mitigation: the Act's design makes delay visible and costly by (a) requiring a decision pathway and (b) ensuring agencies can still operate under caretaker continuity.¹¹⁵¹⁶

Concern: Won't caretaker mode prevent decisive action in crises?
Mitigation: narrow emergency exceptions and the allowance for safety- and court-required action preserve responsiveness while preventing elective, high-discretion policy changes by unconfirmed leadership.¹²⁰

Concern: Won't agencies game the "nondelegable duties" list?
Mitigation: ACUS-style publication, GAO/IG auditing, and standardized reporting reduce incentives and increase detectability of manipulation.⁶¹²¹⁶

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Conclusion

The vacancy loophole is a quiet constitutional failure mode: it allows any President—regardless of party—to reduce Senate confirmation from a requirement to an option.¹² Over time, that shifts the system from shared accountability to unilateral staffing, increases legal uncertainty, and erodes public trust in institutions already running near historic lows.¹⁹

The Vacancy Loophole Closure Act offers a practical, enforceable fix: a short acting window, caretaker continuity rules, anti-delegation guardrails, transparent reporting, and credible enforcement.¹ It does not prevent government from functioning; it prevents government from being run indefinitely by leaders who were never confirmed.

If Congress wants advice-and-consent to remain a real check rather than a historical artifact, closing the vacancy loophole is not a niche reform—it is foundational.

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Reference List

1. Document B (user-provided) - 11 - Vacancy Loophole Closure Act (uploaded file).
   Link: sandbox:/mnt/data/11%20-%20Vacancy%20Loophole%20Closure%20Act.docx

2. Document A (user-provided) - Vacancy Loophole Closure Source Library (uploaded file).
   Link: sandbox:/mnt/data/Vacancy%20Loophole%20Closure%20Source%20Library.md.docx

3. U.S. Constitution, Appointments Clause - Constitution Annotated, Congress.gov.
   Link: https://constitution.congress.gov/browse/essay/artII-S2-C2-3-1/ALDE_00013092/

4. Federal Vacancies Reform Act (FVRA) - U.S. Code (House Office of Law Revision Counsel).
   Link: https://uscode.house.gov/view.xhtml?path=/prelim@title5/part3/subpartB/chapter33/subchapter3&edition=prelim

5. Congressional Research Service - The Vacancies Act: A Legal Overview (R44997).
   Link: https://www.congress.gov/crs-product/R44997

6. U.S. Supreme Court - NLRB v. SW General, Inc. (2017), opinion PDF.
   Link: https://www.supremecourt.gov/opinions/16pdf/15-1251_ed9g.pdf

7. U.S. Government Accountability Office (GAO) - Federal Vacancies Reform Act legal materials (database).
   Link: https://www.gao.gov/legal/federal-vacancies-reform-act

8. GAO Decision - B-331650 (FVRA legality analysis in DHS leadership context).
   Link: https://www.gao.gov/products/b-331650

9. GAO Report - GAO-03-806, Federal Vacancies Reform Act—key elements for agency procedures.
   Link: https://www.govinfo.gov/content/pkg/GAOREPORTS-GAO-03-806/html/GAOREPORTS-GAO-03-806.htm

10. FVRA enforcement provision - 5 U.S.C. § 3348 (U.S. Code, House Office of Law Revision Counsel).
    Link: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section3348&num=0&edition=prelim

11. U.S. Department of Justice (OLC) - FVRA guidance materials (Justice.gov).
    Link: https://www.justice.gov/file/146441/dl

12. Administrative Conference of the United States (ACUS) - Acting Agency Officials and Delegations of Authority (supporting report for Recommendation 2019-7).
    Link: https://www.acus.gov/document/acting-agency-officials-and-delegations-authority

13. Anne Joseph O'Connell - Actings (Columbia Law Review, PDF).
    Link: https://columbialawreview.org/wp-content/uploads/2020/04/OConnell_Actings.pdf

14. Anne Joseph O'Connell - Vacant Offices: Delays in Staffing Top Agency Positions (Southern California Law Review, PDF).
    Link: https://southerncalifornialawreview.com/2009/10/30/vacant-offices-delays-in-staffing-top-agency-positions-by-anne-joseph-oconnell/

15. Center for Effective Government (University of Chicago) - Primer on bureaucratic vacancies and reforms.
    Link: https://effectivegov.uchicago.edu/primers/bureaucratic-vacancies

16. Partnership for Public Service / Our Public Service - Political Appointee Tracker (vacancy/confirmation monitoring).
    Link: https://ourpublicservice.org/performance-measures/political-appointee-tracker/

17. Annenberg Public Policy Center - Most Americans support checks on presidential power.
    Link: https://www.annenbergpublicpolicycenter.org/most-americans-support-checks-on-presidential-power/

18. Issue One - New poll finds voters concerned about presidential power (press release / memo hub).
    Link: https://issueone.org/press/new-poll-finds-voters-concerned-about-presidential-power/

19. Pew Research Center - Public Trust in Government: 1958–2025 (Fact Sheet, Dec. 4, 2025).
    Link: https://www.pewresearch.org/politics/2025/12/04/public-trust-in-government-1958-2025/

20. Australia Department of the Prime Minister and Cabinet - Guidance on Caretaker Conventions (continuity model).
    Link: https://www.pmc.gov.au/sites/default/files/resource/download/guidance-caretaker-conventions-2021.pdf

21. Congress.gov - H.R. 4434 (118th): Accountability for Acting Officials Act (related legislative precedent).
    Link: https://www.congress.gov/bill/118th-congress/house-bill/4434

    Changelog

• December 27, 2024 — Fixed MDX syntax errors (removed invalid {#id} heading anchors)
• December 26, 2024 — Initial draft published