For example, the Homeland Security Act of 2002 as amended by the National Defense Authorization Act for Fiscal Year 2017 mandates that the Under Secretary of Homeland Security for Management is third in the line of succession for Secretary of Homeland Security as an explicit exception to the Federal Vacancies Reform Act,[7][8] and establishes an alternate process by which the Secretary can directly establish a line of succession outside the provisions of the FVRA.

[10] The law applies vacancy provisions of the Federal Judicial Code with respect to the office of the Attorney General.

[13] One of the additional requirements of the Act was to mandate that federal department and agencies create lines of succession plan in case of disaster or emergency.

President George W. Bush signed executive orders designating lines of succession in seven key departments within months after the attack.

[14] The law sets forth additional provisions regarding vacancies existing during presidential inaugural transitions, independent establishments, and exceptions to requirements of this Act for certain board members of independent establishments or Government corporations or commissioners of the Federal Energy Regulatory Commission.

After the Watergate scandal, other laws that allowed agency heads to delegate functions to subordinates were increasingly used as an alternative to evade the strict rules of the Vacancies Act.

[17] No action was seen in the House on this bill, however the legislation was added to the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (H.R.

In 2001, the Duke Law Journal published an article criticizing the nomination process and the Federal Vacancies Reform Act of 1998.

The author, Joshua Stayn, asserts four constitutional problems with the act: In 2018, upon the appointment of Matthew Whitaker as Acting Attorney General, some scholars and former government officials (including former Acting Solicitor General of the United States Neal Katyal) argued that the "senior officer or employee" clause may be unconstitutional when applied to principal officers, because the Appointments Clause of the Constitution requires Senate confirmation for these positions.

[21] In September 2019, a lawsuit was filed challenging Cuccinelli's asylum directives, partially on the basis that his appointment was invalid.

[15][22] On March 1, 2020, US District Court Judge Randolph Moss, who was appointed by Barack Obama, ruled that Cuccinelli's appointment as USCIS director was illegal because the newly created principal deputy director role did not count as a "first assistant" under the Federal Vacancies Reform Act because he had never served in a subordinate role to any other USCIS official.