The designation of Mr. Bill Lann Lee by the Attorney General on December 15, 1997, as Acting Assistant Attorney General for Civil Rights in the Department of Justice (DOJ) revived a longstanding interbranch controversy over the legal propriety of the failure of executive branch departments and agencies to consistently comply with the provisions of the Vacancies Act. Since at least 1973, DOJ has taken the position that any executive department or agency whose authorizing legislation vests all powers and functions of the agency in its head and allows the head to delegate such powers and functions to subordinates in her discretion, does not have to comply with that Act, which limits the time during which advice and consent positions may be filled by temporary designees before a nomination is forwarded to the Senate. All executive departments have such provisions. As a consequence, during 1998 some 20% of the 320 advice and consent positions in the departments were being filled by temporary designees, most of whom had served beyond the 120-day limitation period of the Act without presidential submissions of nominations. Several bills introduced in the 105 th Congress sought to remedy what was seen by many to be noncompliance with the Vacancies Act that seriously undermined the Senate's confirmation prerogative. Following hearings on S. 2176 , the Federal Vacancies Reform Act of 1998 was reported by the Senate Committee on Governmental Affairs on July 15, 1998. Although the bill failed to survive a cloture vote on the Senate floor on September 24, 1998, negotiations between the Senate sponsors and the Administration continued, and a compromise was reached on a revision and included in the FY 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act, which became law on October 21, 1998 ( P.L. 105-277 , Division C, title I, section 151). The new Vacancies Act rejects the DOJ position on temporary appointments and makes it clear that the Act is the exclusive vehicle for temporarily filling vacant advice and consent positions unless Congress expressly provides otherwise. The legislation provides substantial incentives for prompt presidential submissions of nominations, including an increase in the time during which an acting officer may serve when timely nominations are submitted. But the President's choices of action are strictly confined and the failure to comply with the statute's requirements may lead to the vacation of the authorities and responsibilities of the office and to rendering the actions of acting officials void without the possibility of subsequent ratification. Special provision is made for vacancies that occur during a change of Administration after a presidential election. Finally, responsibility for monitoring compliance with the provisions of the law is placed with the Comptroller General. This report will proceed as follows. First, the legislative history of the Vacancies Act is briefly described with particular attention to the early understanding of DOJ with respect to its intended purpose and coverage. That legislative history is also examined for clues as to the congressional intent with respect to the applicability of the Act to DOJ. Next, the development of the conflicting provisions of DOJ and the Comptroller General is reviewed and explained, followed by a recounting of Congress' 1988 attempt to resolve the uncertainty of DOJ's stance through amendatory legislation. The discussion continues with a review of the events that precipitated the most recent controversy and confrontation and the history of the legislative actions that culminated in the passage of the new legislation, and concludes with a detailed description and analysis of that legislation. The Vacancies Act, originally passed in 1868, was intended to prevent the President from delaying sending forth nominations for advice and consent positions which could thereby evade the Senate's confirmation prerogative, and to provide the exclusive means for temporarily filling vacancies in covered positions unless Congress explicitly provided a superseding mechanism. Only two options were available under the statute: either a first assistant or a presidential designee who had previously received Senate confirmation could serve for a strictly defined and limited period. Prior to 1988, the limitation period was 10 days (until 1891) and then 30 days. In that year it was increased to 120 days. An unbroken line of Attorneys General and Office of Legal Counsel opinions from 1880 through 1977 reflected the understanding that there could be only one limited period of occupancy per vacancy (a first assistant's and a presidential designee's service could not be piggybacked) and that a pending nomination did not toll the limitation period. These opinions held that once the time period was exhausted, the office had to remain vacant and the powers and duties of the office could not be lawfully exercised. The Act was understood by the Department of Justice (DOJ) to apply in this rigid manner whether bureau chiefs or the heads of cabinet departments were involved. The only recourse of a President to fill a position in the event the Vacancies Act was unavailable was the nomination process or a recess appointment. However, since 1973, DOJ has taken the position that the Vacancies Act only "provides one [possible] method for filling certain positions on an interim basis", and that some departments and agencies, including DOJ, "have statutory authority to assign duties and powers of positions on a temporary basis outside the Vacancies Act". DOJ asserts that it has such authority under Section 509 of title 28, which provides that "[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General," and under Section 510 which permits the Attorney General "from time to time to make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General." It also contends that these "vesting and delegation" provisions make the time limitations of the Vacancies Act on the filling of vacant positions inapplicable to the Department. This special authority is said to date from the establishment of the Department in 1870. In the past, DOJ has denied the applicability of the Vacancies Act, relying on Sections 509 and 510, with respect to vacancies in the offices of FBI Director and Assistant Attorney General for the Criminal Division, and the Departments of Health and Human Services (HHS), Education, and Labor, with the apparent support of DOJ, have adopted the same rationale with respect to administrative provisions in their own enabling legislation that similarly vests all powers and functions of the departments in their heads and allows discretionary delegations to subordinate officers and employees. With equal consistency, the Comptroller General of the United States has disputed DOJ's position. The Comptroller argued that the language and history of the Vacancies Act establish that it is the exclusive authority for the temporary filling of vacant positions which require presidential appointment with the advice and consent of the Senate unless there is specific statutory language providing another means for filling the particular vacancies. Neither the DOJ provisions, nor similar provisions in other department enabling statutes, which have common origins, the Comptroller General argued, have either the requisite specificity or legislative purpose to effect a displacement of the scheme of the Vacancies Act. Following challenges in 1986 to rulings of non-compliance with the Act by the HHS, Labor and Education Departments, the Comptroller General requested that Congress address the growing compliance problem it was facing. Two significant amendments were made to the Act. First, the Act was amended to cover all executive departments and agencies, thereby overruling a 1973 court ruling limiting its coverage to executive and military departments. Second, Section 3348 was rewritten to allow 120 days, rather than 30 days, for a temporary designee to fill a vacancy. The new provision was designed to give the President more time to find a nominee and at the same time emphasize the centrality and importance of the Senate's confirmation prerogative. Thus, if a nomination was sent forward, the time limitation was abated during the period during which it was under consideration. Only if the nomination was rejected or withdrawn did the clock start ticking again on the temporary assignee. In its report, the Senate Committee expressed the belief that in this manner it was dealing with the interpretative controversy between DOJ and the Comptroller General. By giving more leeway to the President to find a nominee, and tying the time limitation on "actings" to the prompt forwarding of nominations, the Committee believed it made more effective and clear the Section 3349 declaration that the Act's provisions are the sole means for filling vacancies in covered agencies. A 1989 opinion by DOJ's Office of Legal Counsel acknowledged the Senate Committee's disagreement with its "longstanding view that the Vacancies Act does not extinguish other general authorities relating to the appointment of officers," but characterized the Committee report's explanation of the statutory changes as an improper and unsuccessful effort to "alter the proper construction of a statute through subsequent legislative history." The opinion signaled that DOJ would continue to adhere to its position that certain provisions in agency enabling statutes may trump the Vacancies Act. The effect of the application of DOJ's supersession policy throughout the executive branch, and consequently on the Senate's confirmation power, has been significant. At the Justice Department, 45 individuals since 1981 have been designated as "actings" in advice and consent positions for periods exceeding the permissible limitation of the Vacancies Act. The acting head of the Department's Criminal Division served in excess of 30 months until a nomination was submitted on March 13, 1998, and the acting Solicitor General served over 14 months until his resignation without any nomination being submitted. As late as September 1998 there were three other positions in the Department which were being filled by temporary designees for which nominations were submitted after the expiration of the 120-day limitation periods. Similar situations presently exist in all the other executive departments. For instance, as of February 1998, 9 vacant advice and consent positions at the Commerce Department were being filled by actings. Of the 9, 7 had occupied the offices in excess of 120 days. One had served for three years. Nominations were pending for 5 of the 7 positions, but none were submitted prior to the expiration of the 120-day statutory limit.