For BYU Law’s annual lecture honoring former BYU Law dean Bruce C. Hafen (1985-89), we welcomed Anne O’Connell, the Adelbert H. Sweet Professor of Law and at Stanford Law School and Senior Fellow at the Stanford Institute for Economic Policy Research. She shed light on why acting, unconfirmed “stand ins” are leading so many federal agencies. More than 1,200 positions across the federal government require presidential nomination and Senate confirmation, and many of these positions remain vacant after months—even years. Why? O’Connell pointed to the Federal Vacancies Reform Act of 1998, which directs that a departing leader’s first assistant become the default acting leader. Rather than providing a transition to permanent leadership, the Vacancies Act instead creates an easy limbo with powerful inertia. O’Connell posited that swelling ranks of stand-in leadership reduces the number of federal government positions that require presidential appointment and Senate confirmation. Should leaders promoted by default have a limited tenure as provided for in the Vacancies Act, or does the Constitution’s Appointments Clause permit a lax approach? Our current mix of default leadership (per the Vacancies Act) with an indeterminate end (per the Appointments Clause) is a perplexing status quo.
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