In broad terms, the Vacancies Act authorizes the temporary service of non-Senate-confirmed leaders (commonly called “actings”), while the de facto officer doctrine allows courts to validate the past acts of improperly serving officials. This Note examines whether, when, and how the de facto officer doctrine has applied and should apply to the past acts of improper actings.
Both the Vacancies Act and the de facto officer doctrine are understudied. That fact is somewhat unsurprising: Both doctrines are considered niche areas of the law. Within academia, the Vacancies Act is considered the province of administrative law experts, and even within the federal government, most agency personnel receive only ad hoc training and guidance on it. For its part, the de facto officer doctrine is an ancient tool of equity that many consider to be of decreasing import. But that lack of scholarly treatment is surprising given the ubiquity and importance of acting officials (and the many roles agencies play in our lives). Between 1981 and 2020, there were 147 acting cabinet secretaries and just 171 confirmed ones, and empirical studies have shown that Senate-confirmed positions are vacant between 15% and 25% of the time. Likewise, the de facto officer doctrine has surged to national prominence more than once—most recently in the 2020 Supreme Court case Aurelius. And, notably, courts have already been confronted by many of the questions this Note seeks to address.
This Note does not analyze the Vacancies Act or the de facto officer doctrine at length. Instead, it explores the themes, potential, and pitfalls of using the de facto officer doctrine to validate the actions of officials who have not only skirted Senate confirmation, but also violated the constraints of the Vacancies Act. This Note thus seeks to chart the topography of the intersection of those two bodies of law and to provide a roadmap to future courts confronted with Vacancies Act violations.
* J.D. Candidate, Stanford Law School, 2022. Thank you to Professor Anne Joseph O’Connell for her invaluable suggestions and generous guidance. Thank you also to Professor Barbara Fried and the students of the Legal Studies Workshop, Winter 2021, for their helpful comments and insights. And thank you to the diligent and thoughtful editors of the Stanford Law Review, especially Axel Hufford, Samantha Noh, Mitchell Wong, Daniel Ahrens, Taylor Beardall, Marty Berger, Aneliese Castro, Namrata Verghese, Lisa Wang, and Amir Wright, for their hard work on this Note.