Book Project
Unconfirmed Power
Unilateral Governance at the Pleasure of the President
Christina M. Kinane
When Acting Secretary of Homeland Security Chad Wolf resigned on January 11, 2021, he was the longest-serving unconfirmed Cabinet secretary in U.S. history. Wolf served as one of the nation’s top decision-makers on matters of immigration, national security, and disaster and pandemic response for 425 days without the requisite Senate confirmation. That was until Julie Su, President Biden’s Acting Secretary of Labor, directed the department for 681 days without ever receiving the Senate’s consent. Still, Wolf’s acting status was not an anomaly in the Trump administration, and Su’s was no aberration of Biden’s. President Trump consistently avoided Senate confirmation for more than a third of vacant positions, and instead relied on acting appointees to permanently staff his administration. Yet, the strategy of maintaining vacancies with acting officials was not unprecedented. It had simply gone overlooked. All administrations experience vacancies in agency leadership, and presidents have routinely relied on acting appointees to fill in the gaps. In fact, over the past four decades, on average each year, 27 percent of the top appointees leading the executive branch were doing so on an acting basis. And they did not serve for just a few days; instead, the average acting served for 290 days, long enough to shape the direction of policy.
Nor is the strategy even a modern one. Acting officials have served in government since Washington’s first term, a necessity arising from the constitutional framework in which Article II establishes a single pathway into federal office, presidential nomination and Senate confirmation, and assumes uninterrupted officeholding. However, it does not address contingencies such as absence, death, resignation, removal, illness, or procedural delays that arise while the Senate is in session. The earliest Congresses recognized this gap and enacted a statutory appointments system to supplement the Constitution.
That statutory system invites a familiar interpretation. Models of unilateral action characterize presidents as stepping out on their own, seizing policymaking ground through executive orders, proclamations, and memoranda while Congress resists from the sidelines. We might easily place acting officials in the same category, imagining them as modern instruments that presidents deploy to circumvent a resistant Senate. However, in fact, the acting appointment power was constructed cooperatively. Congress originally established this authority in 1792, located it in the president’s hands, and has revised its parameters in every generation, often in response to presidential actions that demonstrated its potential. For example, in 1795, Congress expanded acting authority from covering absences to addressing vacancies and, within the same statute, introduced the first time limitation, simultaneously granting and restricting power. Congress further limited eligibility during the Civil War, enacted the Vacancies Act of 1868 following the use of an acting appointment in Andrew Johnson’s impeachment, and most recently updated the framework with the Federal Vacancies Reform Act of 1998.
This arrangement endures because it serves the interests of both branches: presidents retain the ability to manage the executive branch, while Congress prevents governmental paralysis during periods between confirmations. What began as an implicit constitutional coupling became a statutory architecture that deliberately decouples (and repeatedly recalibrates) the dual powers inherent in appointment authority, the power to appoint and the power to act. Thus, two appointments systems have always existed in the United States: the constitutional model and the statutory system that actually staffs the government. This book offers the first institutional history and comprehensive empirical analysis of the latter, which operates as the source of unconfirmed power. In tracing how that system was constructed, contested, and rebuilt across more than two centuries, the book advances a developmental theory of appointment authority.
Despite the thousands of major decisions that acting appointees have made when running the government, vacancies and actings have received relatively little scholarly attention. I attribute this omission, in large part, to the conventional definition of a “vacancy” as the absence of a Senate-confirmed appointee, a usage suggesting that agency leadership was either missing or handed to the bureaucracy’s version of a “substitute teacher” while major decisions waited for the permanent appointee. In contrast, I argue that acting appointees, who legally exercise the same authority as their Senate-confirmed counterparts, can be powerful policymakers. The prevailing understanding of appointment politics likewise presumes that presidents unfailingly submit nominees for the Senate’s consideration, when the record shows otherwise. A substantial share of vacancies in recent decades never received a nominee at all, and most of those positions were run by actings with no confirmed successor in prospect. With these surrogates as an outside option to seeking the Senate’s consent, the balance of power in confirmation bargaining tilts in the president’s favor.
Unconfirmed Power details the politics and policy implications of this appointment strategy through a new theoretical framework, quantitative analyses of a new continuous dataset, in-depth interviews with former acting appointees, and qualitative case studies of agency actions that actings have directed. In creating the prospect for acting appointees, Congress produced two varieties: career actings drawn from the standing civil service and political actings selected from the cadre of presidential appointees. Drawing on elite interviews with actings of both varieties who served across the past six administrations, I find that, contrary to the long-standing assumption that actings function as provisional seat-fillers, political actings regularly operate as if they were Senate-confirmed. I then develop an original theory of appointment politics to explain when we should expect presidents to fill vacant positions with actings, leave them empty, or pursue Senate confirmation.
The empirical examination begins with the (Un)Confirmed Appointments dataset, a continuous record of all appointees, empty positions, and nominees for nearly 500 Senate-confirmable positions across the 15 executive departments from 1981 to 2025, collected from hundreds of sources in the absence of any centralized record. The data reveal a phenomenon far larger than existing accounts recognized as acting officials number approximately four times what the literature has documented, and they served at twice the previously reported rate. The book then charts when, where, and for how long vacancies have persisted and actings have served across administrations, departments, and political contexts, before turning to what explains presidents’ appointment choices. I demonstrate that presidents are more likely to appoint actings to positions with high levels of authority to direct policymaking activity, precisely where the stakes of unchecked selection are greatest.
Finally, I turn to the government actions that actings have directed without Senate consent. In a series of qualitative case studies on agency enforcement, monitoring, and rulemaking, I show that actings’ roles in policymaking are frequently indistinguishable from those of confirmed appointees. It is this potential for actings to serve as full replacements that alters the balance of power in Senate confirmation and grants presidents a means to govern unilaterally. The prevailing question asks why presidents circumvent the confirmation process. Yet, two centuries of statute and practice point to a starker conclusion: advice and consent has never been the sole pathway into office, Congress itself constructed the alternative route, and presidents of every party have used it to staff the very positions the Framers most wanted the Senate to check. The government the Constitution describes has never been the only government the United States has had. This book is about the other one.