Acting (law): Difference between revisions
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In the United States, the rules for appointment of acting officials are covered in many cases by the [[Federal Vacancies Reform Act of 1998]] (FVRA).<ref>{{Cite web|url=https://fas.org/sgp/crs/misc/R44997.pdf|title=The Vacancies Act: A Legal Overview|last=Brannon|first=Valerie C.|date=2018-07-20|website=[[U.S. Congressional Research Service]]|pages=9–13|access-date=2018-11-08}} {{PD-notice}}</ref> Legal scholar Anne Joseph O'Connell notes that one central—and unresolved—question about the nature of acting officials under FVRA is their status under the [[Appointments Clause]] of the [[Constitution of the United States]].{{Sfn|O'Connell|2020|p=660}} O'Connell observes that portions of FVRA, an act of Congress which sets out a detailed scheme for filling vacant positions in federal agencies, may be unconstitutional if acting officials can be "principal" officers under the Appointments Clause.{{Sfn|O'Connell|2020|p=660}} The constitutional issue emerges because the Appointments Clause requires principal officers to be appointed by the President with the [[advice and consent]] of the Senate. If acting officers who take office pursuant to FVRA—not pursuant to presidential nomination and Senate confirmation—can be considered principal officers, then the FVRA would be unconstitutional to the extent that it allows this to occur.{{Sfn|O'Connell|2020|p=662 (note 238)}} Heilpern, for his part, argues that acting [[Cabinet of the United States|Cabinet]]-level officials are principal officers.{{Sfn|Heilpern|2019|p=265|ps= : "… this article shows that under current Supreme Court case law, an interim Cabinet Head is clearly an 'Officer of the United States'".}} |
In the United States, the rules for appointment of acting officials are covered in many cases by the [[Federal Vacancies Reform Act of 1998]] (FVRA).<ref>{{Cite web|url=https://fas.org/sgp/crs/misc/R44997.pdf|title=The Vacancies Act: A Legal Overview|last=Brannon|first=Valerie C.|date=2018-07-20|website=[[U.S. Congressional Research Service]]|pages=9–13|access-date=2018-11-08}} {{PD-notice}}</ref> Legal scholar Anne Joseph O'Connell notes that one central—and unresolved—question about the nature of acting officials under FVRA is their status under the [[Appointments Clause]] of the [[Constitution of the United States]].{{Sfn|O'Connell|2020|p=660}} O'Connell observes that portions of FVRA, an act of Congress which sets out a detailed scheme for filling vacant positions in federal agencies, may be unconstitutional if acting officials can be "principal" officers under the Appointments Clause.{{Sfn|O'Connell|2020|p=660}} The constitutional issue emerges because the Appointments Clause requires principal officers to be appointed by the President with the [[advice and consent]] of the Senate. If acting officers who take office pursuant to FVRA—not pursuant to presidential nomination and Senate confirmation—can be considered principal officers, then the FVRA would be unconstitutional to the extent that it allows this to occur.{{Sfn|O'Connell|2020|p=662 (note 238)}} Heilpern, for his part, argues that acting [[Cabinet of the United States|Cabinet]]-level officials are principal officers.{{Sfn|Heilpern|2019|p=265|ps= : "… this article shows that under current Supreme Court case law, an interim Cabinet Head is clearly an 'Officer of the United States'".}} |
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In [[Commonwealth realm|Commonwealth]] countries including Canada and Australia, the [[Carltona doctrine]] is the overarching legal principle governing when a [[Minister of the Crown|minister]] may be said to be acting for or on behalf of a government department.<ref>{{Cite web|last=McMillan|first=John|date=2000-11-07|others=Research Paper 13 2000-01|title=Parliament and Administrative Law|url=https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0001/01RP13|url-status=live|archive-url=|archive-date=|access-date=2020-07-22|publisher=[[Parliament of Australia]]|language=en-AU}}</ref>{{sfn|Malkin|2008|pp=547–548}} |
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==See also== |
==See also== |
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== Sources == |
== Sources == |
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* {{Cite journal|last=Heilpern|first=James A.|date=2019|title=Acting Officers|url=http://georgemasonlawreview.org/wp-content/uploads/2020/06/Heilpern_Final_Web2-1.pdf|journal=[[George Mason Law Review]]|volume=27|issue=1|pages=263–306|via=}} |
* {{Cite journal|last=Heilpern|first=James A.|date=2019|title=Acting Officers|url=http://georgemasonlawreview.org/wp-content/uploads/2020/06/Heilpern_Final_Web2-1.pdf|journal=[[George Mason Law Review]]|volume=27|issue=1|pages=263–306|via=}} |
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* {{Cite journal|last=Malkin|first=Alissa|date=2008|title=Government Reorganization and the Transfer of Powers: Does Certainty Matter?|url=https://papers.ssrn.com/abstract=2714178|journal=[[Ottawa Law Review]]|language=en|volume=39|issue=3|pages=537–570|via=}} |
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* {{Cite journal|last=O'Connell|first=Anne Joseph|date=2020|title=Actings|url=https://columbialawreview.org/content/actings/|journal=[[Columbia Law Review]]|volume=120|issue=3|pages=613–728|doi=10.2307/26910475|issn=0010-1958|jstor=26910475}} |
* {{Cite journal|last=O'Connell|first=Anne Joseph|date=2020|title=Actings|url=https://columbialawreview.org/content/actings/|journal=[[Columbia Law Review]]|volume=120|issue=3|pages=613–728|doi=10.2307/26910475|issn=0010-1958|jstor=26910475}} |
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Revision as of 06:25, 22 July 2020
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In law, when someone is said to be acting in a position it can mean that the position has not yet been formally created, the person is only occupying the position temporarily to ensure continuity, or the person does not have a mandate.
It can also mean that the 'acting' person is temporarily filling and executing the role of a position in case the individual meant to execute the role is incompetent or incapacitated. The 1910 edition of Black's Law Dictionary defines "acting" as:
A term employed to designate a locum tenens who is performing the duties of an office to which he does not himself claim title; e.g., "Acting Supervising Architect." Fraser v. United States. 16 Ct. Cl. 514. An acting executor is one who assumes to act as executor for a decedent, not being the executor legally appointed or the executor in fact. Morse v. Allen, 99 Mich. 303, 58 N. W. 327. An acting trustee is one who takes upon himself to perform some or all of the trusts mentioned in a will. Sharp v. Sharp, 2 Barn. & Ald. 415.[1]
In the first case cited therein, Fraser v. United States, the Supervising Architect of the Treasury, James G. Hill, had been suspended with pay while being investigated for a charge of fraud. Another person, John Fraser, was then directed by the Secretary of the Treasury to take charge of and perform the duties of Hill's office as "Acting" Supervising Architect. Officially, Fraser was merely a contractor who had been contracted to oversee the construction of a building for the Bureau of Engraving and Printing. When Hill was returned to his position some five and a half months later, Fraser sought to be compensated for the time he had worked as Acting Supervising Architect, seeking the difference between the salary for that office and his much lower pay as a contracting architect for the Treasury. The Court of Claims found that the "acting" position was not a statutory creation, and that Fraser was entitled to no pay beyond that of his contract for the period.[2]
Organizations should have a succession plan including the designation of an acting CEO if the person in that job vacates that position before a replacement has been determined. For example, the lead director on the board of directors may be designated to assume the responsibilities of the CEO until the board finds a new CEO.[3]
Examples of notable acting positions in politics include:
In the United States, the rules for appointment of acting officials are covered in many cases by the Federal Vacancies Reform Act of 1998 (FVRA).[4] Legal scholar Anne Joseph O'Connell notes that one central—and unresolved—question about the nature of acting officials under FVRA is their status under the Appointments Clause of the Constitution of the United States.[5] O'Connell observes that portions of FVRA, an act of Congress which sets out a detailed scheme for filling vacant positions in federal agencies, may be unconstitutional if acting officials can be "principal" officers under the Appointments Clause.[5] The constitutional issue emerges because the Appointments Clause requires principal officers to be appointed by the President with the advice and consent of the Senate. If acting officers who take office pursuant to FVRA—not pursuant to presidential nomination and Senate confirmation—can be considered principal officers, then the FVRA would be unconstitutional to the extent that it allows this to occur.[6] Heilpern, for his part, argues that acting Cabinet-level officials are principal officers.[7]
In Commonwealth countries including Canada and Australia, the Carltona doctrine is the overarching legal principle governing when a minister may be said to be acting for or on behalf of a government department.[8][9]
See also
References
- ^ Black's Law Dictionary (1910), p. 23.
- ^ Fraser v. United States, 16 Ct. Cl. 507 (1880).
- ^ Ann Brockett, Zabihollah Rezaee, Corporate Sustainability: Integrating Performance and Reporting (2012), p. 139.
- ^ Brannon, Valerie C. (2018-07-20). "The Vacancies Act: A Legal Overview" (PDF). U.S. Congressional Research Service. pp. 9–13. Retrieved 2018-11-08.
This article incorporates text from this source, which is in the public domain.
- ^ a b O'Connell 2020, p. 660.
- ^ O'Connell 2020, p. 662 (note 238).
- ^ Heilpern 2019, p. 265: "… this article shows that under current Supreme Court case law, an interim Cabinet Head is clearly an 'Officer of the United States'".
- ^ McMillan, John (2000-11-07). "Parliament and Administrative Law". Research Paper 13 2000-01. Parliament of Australia. Retrieved 2020-07-22.
{{cite web}}: CS1 maint: url-status (link) - ^ Malkin 2008, pp. 547–548.
Sources
- Heilpern, James A. (2019). "Acting Officers" (PDF). George Mason Law Review. 27 (1): 263–306.
- Malkin, Alissa (2008). "Government Reorganization and the Transfer of Powers: Does Certainty Matter?". Ottawa Law Review. 39 (3): 537–570.
- O'Connell, Anne Joseph (2020). "Actings". Columbia Law Review. 120 (3): 613–728. doi:10.2307/26910475. ISSN 0010-1958. JSTOR 26910475.
If an internal link incorrectly led you here, you may wish to change the link to point directly to the intended article.