Bureau of Land Management and the Appointments Clause

As we discussed in class, the solution for Congress facing a President who seeks to avoid advice-and-consent can limit the use of acting officers. I should have mentioned that Congress has done so, with the Federal Vacancies Reform Act of 1998. The law does a lot. For our purposes, it limits who can be made an acting officer (broadly, it must be the Senate-confirmed first deputy in the office or someone Senate-confirmed to a different position--that is, an acting officer still has been Senate confirmed to something), how long someone can serve in an acting capacity, and how long someone who is not an "acting officer" (because not meeting the statutory requirements) can perform the functions of the office even without the title.

The District of Montana has held that William Perry Pendley's year-plus service as acting director of the Bureau of Land Management violates federal law because he did not meet the requirements to be an acting officer and his appointment to perform the functions was invalid. The court enjoins Perry from continuing to perform the functions of the office and will inquire into BLM actions that may be invalid because approved by someone improperly in the office.