irst, the Vacancies Reform Act does not say that the president’s authority is overridden where a separate statute, such as Dodd-Frank, provides for other modes of designating an acting official. It merely says that the president’s power is not exclusive in those circumstances. The Department of Justice’s Office of Legal Counsel (OLC) has long taken the position that the president can designate an acting official under the Vacancies Reform Act even where, as here, another statute seemingly mandates that another official shall perform the duties of the office in an acting capacity.

In very similar circumstances, OLC declared President George W. Bush had the authority to designate an acting OMB director, notwithstanding a separate statute providing that the deputy OMB director “acts as the Director when the Director is absent or unable to serve or when the office of Director is vacant.” OLC has drawn support for this interpretation from the legislative history of the Vacancies Reform Act. A Senate Report preceding the statute provided that “even with respect to the specific positions in which temporary officers may serve under the specific statutes this bill retains, the Vacancies [Reform] Act would continue to provide an alternative procedure for temporarily occupying the office.”