In L.M.-M. v. Cuccinelli, Judge Randolph Moss, a federal judge in the District of Columbia, issued an important opinion setting aside policies limiting asylum applications known as the Asylum Directives. The court held that Kenneth Cuccinelli, who issued them, cannot legally serve as “acting” Director of the United States Citizenship and Immigration Services (“USCIS”) under the 1998 Federal Vacancies Reform Act.

The opinion is particularly important because its analysis casts doubt upon the legality of a widespread but not closely scrutinized strategy for bypassing Senate confirmation requirements for high-level agency officials. Under this in-the-weeds strategy, the agency head delegates around a vacancy in a Senate-confirmed post, allotting the full suite of responsibilities to an unconfirmed individual, someone typically ineligible to “act” under the FVRA’s qualifications, time limits, or both. (This is in addition to the widely-documented significant reliance on acting officials in lieu of Senate-confirmed officials.)

First, some very brief background on the statute and the case. The default “acting” officer for a Senate-confirmed post under the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq., is the “first assistant” to the post. (The President may alternatively designate as “acting” another Senate-confirmed official or a long-term senior official in the agency.)  An acting officer may serve for 210 days; this basic term is subject to certain extensions, including while a nomination is pending in the Senate. Section 3348, the enforcement provision, discussed in greater detail below, provides strictly that certain actions taken by a person not properly “acting” for a Senate-confirmed official “shall have no force or effect” and “may not be ratified.”

A few days after the Senate-confirmed USCIS Director, L. Francis Cissna, resigned, the then-acting Department of Homeland Security, Kevin McAleenan, arranged for Cuccinelli to hurdle over the then-acting USCIS Director (the USCIS Deputy Director). As Steve Vladeck explains here, McAleenan created a new post of “Principal Deputy Director,” designated that job the new “first assistant” post under DHS’s order of succession, and hired Cuccinelli straight into the new job. Both the post and Cuccinelli’s job were to “terminate automatically” upon the President’s appointment of a new USCIS director. Slip op. at 3. Judge Moss found that Cuccinelli could not legally “act” under the FVRA because Cuccinelli “never did and never will serve in a subordinate role—that is, as an ‘assistant’—to any other USCIS official.” Slip op. at 33.

That part of the court’s ruling seems limited to the case’s distinctive facts. But the opinion’s discussion of remedy, particularly if other courts follow it, could have important and broader implications for the practice of delegation. Agency heads often delegate, wholesale, the functions and responsibilities of a vacant Senate-confirmed office. Consider this Secretarial delegation (click on “Secretary’s Orders”) from the Interior Department. It conveys “all functions, duties, and responsibilities” of “vacant non-career Senate-confirmed positions” to named individuals. The current delegation (past lists are longer) covers the directors of the Bureau of Land Management and Office of Surface Mining, as well as the Interior Department Deputy Secretary and others. As of writing—and after Judge Moss’s ruling finding his service as “acting USCIS director” illegal–Ken Cuccinelli himself similarly claims to be both the “senior official performing the duties of the Department of Homeland Security Deputy Secretary,” as well as the “senior official performing the duties of the USCIS director,” though research has not uncovered agency documents that directly support such a delegation. Similar claims were made for the acting Social Security Administrator. Once the FVRA time limits ran out for this official, she signed Federal Register notices in 2018 this way: “Deputy Commissioner . . . performing the duties and functions not reserved to the Commissioner of Social Security.” Anne Joseph O’Connell discusses these practices, as well as inconsistent agency publication of delegation documents, in more detail in her excellent ACUS Report from December, 2019. The effect is to permit the creation of a cadre of shadow acting officials.

The delegation strategy has a bipartisan history: widespread use dates to at least the Clinton years, prompting the 1998 Federal Vacancies Reform Act overhaul. Attorney General Janet Reno had invoked the Justice Department’s organic statute to delegate the responsibilities of multiple Senate-confirmed posts to individuals whom the Senate had declined to confirm, including the Solicitor General and Assistant Attorneys General for Civil Rights and for the Office of Legal Counsel. (In contrast to present practices, these individuals also claimed the “acting” title.) That raised Congress’s ire. The Senate Report accompanying the 1998 FVRA specifically stated that the bill was meant to clarify that such reliance on organic statutes was foreclosed. (See p. 17.) The FVRA’s “exclusivity” provision made the Act the exclusive means of filling vacancies, with a narrow exception only for certain agency-specific statutes—while specifically barring reliance on a statute “providing general authority” to an agency head to “delegate” or “reassign” duties.

But delegations of power around Senate-confirmed offices have nonetheless continued. The claim that delegation could remain an implicitly authorized practice is based on the FVRA’s complex main enforcement provision, 5 U.S.C. 3348. Bear with me here. Section 3348 specifies that an action taken “in the performance of any function or duty” that is not in conformity with the FVRA “shall have no force or effect.” Section 3348 in turn defines “function or duty” “[i]n this section” as “any function or duty” that is “established by statute [or regulation]”—and “required by statute [or regulation] to be performed by the applicable officer (and only that officer).” Defenders of the delegation strategy have argued that the “required . . . to be performed by the applicable officer (and only that officer)” language means that the enforcement provision covers only nondelegable functions.

The implication defenders have sought to draw is that delegable functions are generally exempt not only from Section 3348’s enforcement provision, but from the entire Federal Vacancies Reform Act. Two lower court rulings, including from one of Judge Moss’s district court colleagues, seem to have followed this line, as did a 2018 Congressional Research Service report.

(A 1999 Office of Legal Counsel analysis (see Qs 44, 48) and 2008 Comptroller General analysis are more nuanced. They suggest the legal permissibility of “delegation [of particular functions] in the regular course” of agency management, compared to wholesale delegation that responds to a vacancy.) 

As I explain below, the claim that an agency head may simply delegate around a vacant Senate-confirmed office is a flimsy one, given the Act’s text and legislative context. Judge Moss’s decision on remedy in L.M.-M., rejecting the government’s arguments that Section 3348 provided no remedy to the plaintiffs because Mr. Cuccinelli was exercising powers of the delegable variety, identifies some important legal difficulties.

As Judge Moss pointed out, because general statutory provisions authorizing agency heads to exercise and delegate functions are extraordinarily widespread, the logic of the government’s position would extend to nearly every executive agency otherwise subject to the FVRA. Moreover, courts have repeatedly found subdelegation of agency functions to be presumptively permissible absent affirmative evidence of contrary congressional intent. By contrast, statutory provisions specifically assigning duties to officials below the level of Cabinet officials while restricting delegations are vanishingly rare. Similarly, rules delegating agency functions typically do not restrict reassignment. Given all this, the government’s arguments would sharply limit the application of Section 3348’s enforcement provision.

Judge Moss also identified textual obstacles to the government’s interpretation. He reasoned that reading the FVRA’s “officer (and only that officer)” language to exclude from the FVRA’s enforcement provisions those functions generally vested by statute in (and subject to delegation by) the head of the agency would create a textual “conundrum.” Slip op. at 46. That is because the FVRA’s enforcement provision, section 3348(b), does authorize a “fallback” option if no acting official is legally serving: “only the head of such Executive agency may perform any function or duty of such office.” But as Judge Moss pointed out, it is hard to see how the agency head could serve as a fallback and carry out these “nondelegable” functions without possessing the statutory authority to exercise or delegate those functions in the first place – unless the FVRA itself were understood as an affirmative vesting of those powers in the head of the agency, a statutory reading that Judge Moss considered “implausibl[e].”  Slip op. at 45-46. The presumption against implied repeal also supports the court’s reading.

The court further noted that Section 3348’s definition of “function or duty” to encompass those specifically assigned to the officer by regulation (and as the section further specifies, assigned at any time during the 180-day period preceding the vacancy) presupposes the agency head’s general authority to use rules to delegate—or reassign—that authority. Judge Moss accordingly interpreted the enforcement provisions to encompass functions generally vested in (and subject to delegation by) agency heads. The court concluded that even if Cuccinelli claimed to be carrying out arguably delegable functions, the FVRA’s enforcement provisions still rendered the actions of no force or effect. Slip op. at 46.

Judge Moss was only considering arguments concerning the potential delegability of the functions Cuccinelli purported to exercise. But the arguments apply with even more force when an agency head actually delegates the responsibilities of a vacant Senate-confirmed office to an individual with no valid claim to “act” under the FVRA. In this delegation scenario, two additional textual arguments strengthen the conclusion that the practice violates the Federal Vacancies Reform Act.  First, reading the FVRA to prohibit this practice avoids making trivial the Act’s exclusivity provision, section 3347(b), which specifically restricts agency use of a statute providing “general authority” “to delegate duties” or “reassign duties” as a substitute for the FVRA’s framework.

Second, even if Section 3348 were read not to provide a remedy when a person illegally “acts” by exercising a particular delegable function, Section 3348 begins by stating that its definitions of “function or duty” apply only “[i]n this section,” not in the entire Act. The FVRA’s qualification requirements for acting officers and time limitations on acting service could still be enforced under the Administrative Procedure Act, though such claims might be subject to harmless error arguments, reliance on the de facto officer doctrine, or potential after-the-fact ratification. (Legislative history indicates that Section 3348’s strict enforcement language was in part aimed at precluding ratification arguments.[1])

More broadly, the bulk delegation of the responsibilities of a Senate-confirmed post undercuts the FVRA’s framework and purpose. The FVRA’s time limitations on acting officials, together with qualifications requirements and stringent enforcement provisions, were supposed to permit reasonable agency function but still prod presidents to honor the Appointments Clause by promptly nominating individuals for Senate-confirmed posts. Tolerating broad delegation substantially undermines that incentive by permitting the agencies to create pseudo-acting officials not authorized by the FVRA. As Judge Moss recognized, if vesting-and-delegation statutes were sufficient to negate the FVRA, Congress would have “done little to ‘restore constitutionally mandated procedures.’” Slip op. at 49 (quoting the Senate Report at 8).

Legal approval of delegation around a vacant office also would render the 1998 FVRA wholly inadequate to address the very Clinton-era actions that formed the legislative context for the statute’s enactment. The only difference between the present delegations and the Clinton-era delegations is a slight loss in status: unlike the Clinton-era officials, the current recipients of delegated authority are not using the title “Acting.”

Clearly, the FVRA does not permit an agency head to delegate the entire set of powers of a Senate-confirmed post elsewhere in response to a vacancy. (For principal officer posts, such actions also raise potential Appointments Clause issues, though that is beyond the scope of this discussion.) The actions of unconfirmed individuals serving as high-level officials within the Interior Department or Department of Homeland Security without meeting FVRA requirements thus are legally vulnerable. And although agency heads may be broadly empowered to reallocate particular functions among agency officials and assign them non-exclusively in the ordinary course of running the agency, Section 3348 may bar agency heads from revising even informal allocations of individual functions or duties fewer than 180 days before a vacancy arises. (As Judge Moss points out, delegations and directives might be considered rules under the Administrative Procedure Act exempt from notice and comment requirements as rules of “agency organization.” Slip op. at 47 n. 12.)

At a broad level, the Federal Vacancies Reform Act of 1998 sought to restore and preserve the Senate’s role in considering presidential nominees when the Constitution or a statute requires confirmation, while allowing for circumscribed executive flexibility to respond to exigency and to prepare nomination packages for the Senate. As Judge Moss’s analysis in L.M.-M. suggests, delegations of power around vacant Senate-confirmed offices—and the arguments made to justify those delegations—are directly at odds with those goals.

Nina A. Mendelson is the Joseph L. Sax Collegiate Professor of Law at the University of Michigan Law School.

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[1] Senate Report, pp. 19-20.