June 15, 1977

Power of the President to Designate Acting Member

of the Federal Home Loan Bank Board

77-38 MEMORANDUM OPINION FOR THE

COUNSEL TO THE PRESIDENT

This is in response to your inquiry as to whether the President has 

the power to designate an individual to perform the duties of and act as 

a member of the Federal Home Loan Bank Board (hereafter “the 

Board”) pending the appointment of a member of the Board by the 

President by and with the advice and consent of the Senate. We believe 

that the President has this power, but that its exercise may be subject to 

judicial or congressional challenge absent the submission of a nomination for that office prior to or within a reasonable time after the 

designation of the acting member.

The Board is an independent Agency in the executive branch. 12 

U.S.C. § 1437(b). It consists of three members appointed by the President by and with the advice and consent of the Senate. The members 

serve staggered terms expiring on June 30 of the relevant year. Reorganization Plan No. 3 of 1947, §2, 12 U.S.C. § 1437, note. There is no 

holdover provision.

There is now a vacancy on the Board. We understand that the 

President is about to submit a nomination for the position to the Senate. 

It is possible, however, that the Senate may not confirm the nominee 

prior to June 30. On that date the term of another Board member will 

expire. It thus may be that beginning July 1, 1977, there will be only a 

single member of the Board. It generally is recognized that a collective 

body is empowered to act only if a quorum consisting of a simple 

majority is present. See, F TC v. Flotill Products, 389 U.S. 179, 183 

(1967).

We assume that many, especially routine, functions of the Board have 

been delegated to subordinate officers. Still, the Board will not be able 

to make the more important decisions that it has reserved to itself. This 

raises the question of whether the President has the power to prevent 

such an incapacity of the Board by making temporary designations of 

acting members.

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As stated above, the Board is an independent Agency within the 

executive branch. Whatever the term “independent” may mean in this 

context, the continued functioning of the Board is plainly included in 

the constitutional responsibility of the President as the head of the 

executive branch to take care that the laws be faithfully executed.

In the Vacancy Act (5 U.S.C. §§ 3345-3349) Congress has given the 

President specific authority to make such temporary designations in the 

executive and military departments for a period not in excess of 30 

days. The Board, however, is not such a department. See 5 U.S.C. 

§§ 101, 102. It is necessary to consider, therefore, whether the President 

has the power to make such designations with respect to agencies other 

than those departments, absent statutory authority.

This Office has taken the position that the power to make such 

interim designations flows from the President’s responsibility to keep 

executive branch agencies in operation; hence, that the Vacancy Act is 

not a source, but rather a regulation of that power. This view was 

challenged in Williams v. Phillips, 360 F. Supp. 1363 (D.C.C. 1973). In 

that case the District Court took the position that the President could 

make a temporary designation to the position of Director of the Office 

of Economic Opportunity, a position that required Senate confirmation, 

only in the presence of a statutory authorization. This view apparently 

was based on the assumption that such a temporary designation constituted an appointment; it also ignored a governmental practice going 

back more than a century. ,

The Government sought a stay in the Court of Appeals pending 

appeal. While that court denied the stay (482 F. 2d 669), it did indicate 

that it did not necessarily agree with the theory of the District Court. 

It said that it could be argued that the President had the “implied 

[constitutional] power in the absence of limiting legislation . . . to 

appoint an acting director,” for a reasonable period of time before 

submitting the nomination of a new director to the Senate. 482 F. 2d at 

670. But even if that view were sustained, it would not establish that 

the President was entitled to wait for 4-1/2 months before submitting 

such nomination. At 670-671. The Court of Appeals said that the 

measure of a reasonable period for the submission of a nomination 

would be the 30-day period provided by the Vacancy Act. It therefore 

denied the stay because it was not likely to hold that the President was 

entitled to retain the acting official in office for a 4-1/2 month period 

without any nomination. Ibid. It stated:

“. . . Assuming, without deciding, that the court on the merits 

might disagree with the District Court’s approach and might conclude that Phillips’ appointment was not invalid ab initio, this 

would not undercut the determination as to the prospective invalidity of his holding office.” 482 F. 2d at 671.

The opinion of the Court of Appeals can perhaps be read as disagreeing with the approach of the District Court, namely, that no designa151
tion to fill a vacancy can be made in the absence of an authorizing 

statute; similarly, as perhaps agreeing with the Government’s view that 

the President does have the power to fill a vacancy pending confirmation in the absence of a limiting statute, subject, of course, to the 

condition that he must submit a nomination within a reasonable time. It 

is to be noted that this condition is far less rigid than the 30-day 

limitation of the Vacancy Act.1 It permits service beyond that period 

where the President has submitted a nomination within the period but 

the Senate has not acted on the nomination before the period has 

expired.

It may be safe, but obviously not absolutely so, to regard the Court 

of Appeals opinion as indicating that the court would be chary about 

holding that the President lacks the power to fill vacancies temporarily, 

in the absence of authorizing legislation, if he submits a nomination 

prior to or within a reasonable time following the designation. The 30- 

day period of 5 U.S.C. 3348 would be considered a guideline as to what 

constitutes a reasonable period. This view would certainly be strengthened if the person designated by the President were, in analogy to 5 

U.S.C. 3347, a current official appointed after Senate confirmation.

In recent months this Office has given similar advice respecting the 

Community Services Administration and the United States Arms Control and Disarmament Agency. We may mention that, as far as we 

know, this question has not arisen in the past in connection with a 

multimember agency. The reason for this is probably that, as a rule, a 

vacancy in such an agency does not deprive it of a quorum and thus 

does not impede its operations in a substantial way. However, where, as 

here, a vacancy in the Agency has the effect of seriously impeding its

1 T h e A ttorney G eneral has interpreted 5 U.S.C. 3348 in its application to the executive 

departm ents to the effect that the pow er o f an acting official comes to its end on the 30th 

day follow ing the day on which th e vacancy arose even though a nomination is pending. 

F o r the operation o f the Vacancy A ct in such a situation, see 32 Op. A.G. 139 (1920), 

w hich involved the following: U pon the resignation of the Secretary o f State, the U nder 

Secretary o f State becam e Acting Secretary by operation o f the V acancy Act. Thereafter 

a nom ination for Secretary of S tate was submitted. O n M arch 13, 1920, the Acting 

Secretary advised the Attorney G eneral that the 30-day period o f the V acancy A ct had 

expired w ithout the confirmation o f the nom inee and asked for advice about his status. 

T he A ttorney G eneral advised the U nder Secretary that in view o f the expiration of the 

30-day period it w ould be “probably safer to say that you should not take action in any 

case out o f w hich legal rights m ight arise w hich w ould be subject to review by the 

co urts.”

In 1880 the A ttorney General advised the Secretary o f the Treasury that because the 

office o f the Secretary o f the N av y had been vacant in excess o f the statutory period 

(then 10 days), no person in th e D epartm ent o f the Navy was authorized to sign 

requisition on the Departm ent o f the Treasury on account of N avy payments. 16 Op. 

A .G . 596(1880).

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functions the reasons which, in our opinion, authorize the President to 

designate a person to perform the duties of an office filled by a single 

official should apply with equal force to a multimember agency.

L e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

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