(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; OR
He fails to read on to section (a)(3) which clearly states that he can appoint him:
3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if—
(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and
(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.
Under this section he doesn't have to be in a position that requires Senate approval.He meets the conditions required in this section
Napolitano's point -- which was reinforced by Justice Thomas in his 2017 concurring opinion in the NLRB case -- is that Section (a)(3) of that statute is unconstitutional. In fact, the idea that Congress can override a Constitutional requirement by allowing "temporary" appointments based on GS pay scales is laughable.