Courts Narrow Legal Pathways for Acting Federal Officials

Why It Matters

The Trump administration's use of acting officials to staff federal agencies is running into a hard legal wall, and a new Congressional Research Service report published April 29 lays out exactly why.

The Federal Vacancies Reform Act of 1998 governs who can legally serve in a temporary capacity in senior executive positions requiring Senate confirmation. Courts in 2025 and 2026 have been steadily narrowing how that law can be used, and the CRS report arrives as a timely legal map of where the landmines are.

The Big Picture

The Vacancies Act is the primary federal law governing temporary appointments to presidentially appointed, Senate-confirmed positions. It allows three categories of people to serve in an acting capacity: the "first assistant" to the vacant office, a senior agency official at the GS-15 level or above who has served at least 90 days in the preceding year, or a person the president has formally nominated to fill the position permanently.

Acting service is generally capped at 210 days from when the vacancy begins, though that clock can be extended if the president submits a nomination to the Senate.

The law is also, in most cases, the exclusive mechanism for filling these vacancies temporarily. The president cannot simply bypass it by invoking other authorities.

Recent court decisions have sharpened the law's teeth in ways that directly affect the current administration's staffing strategy. In August 2025, a federal judge ruled that a first assistant can only assume a vacant office under the Act at the moment the vacancy occurs. Someone who takes on the first assistant role after a vacancy has already opened cannot use the Act to claim acting authority. That ruling directly invalidated the appointment of Alina Habba as Acting U.S. Attorney for the District of New Jersey.

Courts in 2025 and 2026 also held that the Vacancies Act does not authorize acting service on multimember boards governing certain federal agencies, including the National Labor Relations Board, the Merit Systems Protection Board, and the Federal Trade Commission. The Third Circuit ruled in 2025 that Vacancies Act violations carry criminal law implications as well.

Political Stakes

For the Trump administration, the legal exposure is substantial. The administration has relied heavily on acting officials across numerous federal agencies, particularly in the early months of the second term. PEER.org has documented what it describes as "repeated violations" of the Act by the administration.

The multimember board rulings are particularly consequential. The administration has moved to reshape independent agencies by removing members and installing acting replacements. If courts find those appointments invalid under the Vacancies Act, a wide range of agency decisions on labor, trade, and civil service matters could be rendered legally void or voidable. That creates downstream legal risk for every regulation, ruling, or enforcement action those agencies have taken under improperly seated officials.

The Senate confirmation bottleneck adds another layer of pressure. The Act's exclusivity clause limits the administration's ability to seat officials in senior positions without either going through the Senate or strictly complying with the Act's procedures. The report notes one available workaround: filing a formal Senate nomination extends the 210-day acting service clock, giving the administration a legitimate path to extend temporary leadership while nominations are pending. But that still requires formal Senate engagement, which has been a persistent friction point.

For Congress, the report is a reminder that the Vacancies Act is both a tool and a constraint. Lawmakers on both sides have an institutional interest in ensuring that the Senate's confirmation role is not circumvented. The string of court rulings invalidating acting appointments gives Congress leverage to press the administration on nominees and creates a legal record that could inform future oversight or legislation.

For the public, the stakes are practical. Decisions made by improperly appointed officials at agencies like the NLRB or FTC may not hold up in court, potentially unwinding enforcement actions, labor rulings, or regulatory decisions that affect workers, businesses, and consumers.

The Bottom Line

The CRS report is a legal reference document, but its timing is pointed. Courts have spent the past year steadily tightening the rules around acting official appointments, and the administration's staffing approach has generated litigation at nearly every turn.

The core takeaway is this: actions taken by an improperly serving acting official may be considered void, and the legal architecture around the Vacancies Act is now being enforced by courts in ways it historically was not. For an administration that has leaned on temporary appointments as a governing strategy, that is a significant and compounding legal liability.

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