Not really. They merely have to advise and consent. If the Senate were to pass a rule “Upon a vacancy in a cabinet position, the Assistant Secretary shall assume that position until filled through nomination and confirmation.” I would argue that they pre-emptively gave their advice and consent to filling the position with that person.
Yes through the Senate’s majority vote on the controlling law
I can’t believe how much effort is being put into, “nuh-uh, she was not on Trump’s cabinet!” It’s reminiscent of Trump flipping out because his inauguration crowd was so small. “Nuh-uh, it was too the biggest crowd ever!”
That would be a very stretching argument. AFAIK, the “advice and consent” has been consistently understood to mean confirmation hearings/voting, and is not discharged by passing a law once. Basically, the “advice and consent” presumes that the current Senate does the advising and consenting, not the Senate decades ago.
The only effort you see is here on this thread, and it’s because I consider it an interesting (if pretty irrelevant) point.
Where else do you see this effort?
Oh, you’re providing plenty. Keep up the good work, Sisyphus.
Except it isn’t. The Constitution does not define the term cabinet or cabinet member. It refers in Article II § 2 to “the principal Officer in each of the executive Departments” and again in the 25th Amendment to “principal officers of the executive departments.”
One might argue that “cabinet” is simply a synonym for “principal officers of the executive departments.” But that is also incorrect, since by longstanding tradition, the Cabinet also includes the Vice President.
Your definition of qualification for the Cabinet also excludes recess appointments, which the Constitution specifically exempts from Senate confirmation, and who are not considered Acting appointments at all.
Let’s ignore the issue of statutory succession for the moment and focus on transitionary appointments. The governing statute is the Federal Vacancies Reform Act that I mentioned above. That act provides, in part
In other words, the Congress in their wisdom has delegated to the President the power to appoint acting officers to vacant principal executive positions when making a presidential transition. The only requirements are
That the appointment be made from the pool of subordinates whose appointment previously required the consent of the Senate, and
That the appointment not last longer than 210 + 90 days from the inauguration.
The Senate, by agreeing to this legislation, has implicitly granted their consent to the temporary appointment of principal officers subject to these conditions, by virtue of having previously provided their consent to the appointment of the subordinate officers who so qualify.
Neither the Constitution nor any federal law makes any distinction between “principal officers of the executive departments” and “acting principal officers of the executive departments.” Neither the Constitution nor any federal law or regulation establishes the Cabinet, defines the term “cabinet member” or “cabinet officer.” It is clear that the structure and functioning of the Cabinet is entirely informal and traditional, and completely at the discretion of the President.
It is also clear that, subject to the time-limit conditions outlined above, there is no legal difference between a Secretary of Foo and an Acting Secretary of Foo. To the extent that we can legitimately define “cabinet member” as “the department heads plus the Vice President, plus whomever else the President may stick in that little room,” any Acting Secretary clearly qualifies.
She WAS confirmed by the Senate 84-12
Not to that position. The “advice and consent” is non-transferable from position to position.
George W. Bush had three “acting” cabinet members at one time. Seemed perfectly legal.
Except that it seems it can be, and routinely is, during transitions. And that
means that they were appointed with the advise and consent of the senate.
I read somewhere that it might get awkward, because so many of the senate-approved officials have left that Trump wouldn’t have many people to choose from.
Acting cabinet members have to stay in the hall and shout their advice through the open doorway during cabinet meetings.
If it helps, think of it this way.
The position of, say, Under Secretary of State for Political Affairs, is defined, legally, as an appointment which requires the consent of the Senate and one which may serve as Acting Secretary of the department according to the terms of the Vacancies Reform Act.
When the Senate grants their consent to an appointment to that position, they are saying, “we approve Bob Lobb for the position of Under Secretary of State for Political Affairs, whose duties may also include acting as the Secretary of State in accordance with current legislation.” They don’t explicitly say all that, but it’s implied, since the duties of statutory executive positions are largely defined by their department’s enabling legislation and other laws (including the FVRA.)
So the Senate is well aware that they are voting to confirm someone who may be called upon by a President to act as the department head for some time. The Senate, understandably, does not want people acting indefinitely, since they generally want to be more rigorous about confirming top-level officials. That’s why the FVRA was passed, to make it clear that an under secretary may only exercise the power of a department head for a limited time.
All of that, however, is ultimately immaterial to whether or not an acting secretary is a “cabinet member.” The only authority that defines “cabinet member” is the President. And historically, the Cabinet has included acting department heads. That was true when Washington appointed the first Cabinet and it’s true today. There is no reason to suspect that this will change anytime in the future (though given Trump’s surprise re-org of the NSC, anything is possible.)
I know I’ll regret stepping in to point out the obvious, but the above statement does not in any way read as “Cabinet members stop being cabinet members when the Presidency changes hands.”
But even if we take your definition, you’re still wrong on the facts. because Yates served at the request of the Trump administration.
(bolding mine).
Checking in to see if still debating about what the meaning of “is” is.
Still are.
Checking out. 
I didn’t say that, did I? Gates served as Sec. of Defense without having to be confirmed again.
I never said she didn’t, so I cannot be “wrong” on that fact. I said she was not confirmed to that position by the Senate.
Had she not been fired, and had Trump wanted to keep her for four years, would she have to be confirmed?
Yes.
…since the intention is to remove “acting” from her title. The 300 day limit would still apply, wouldn’t it?
If you read carefully I said it would be a rule not a law. And Senate Rules are re-approved every session so on January 3rd this Senate would have approved that rule had it existed.
What’s the difference between “fired” and “forced to resign?”