President Obama received a lot of praise in November and December for how quickly he named his Cabinet and other important political appointees. If previous trends hold, however, it could be late Summer or Fall before many of the 1100 political appointees throughout the executive branch are in place. For example, it took President Clinton only an average of 5 days after assuming office to appoint and confirm his initial Cabinet secretaries but 250 days on average to appoint and confirm his administration’s initial assistant secretaries; appointments by President Reagan and both Presidents Bush follow a similar trend.
These numbers come from an early working paper Professor Anne Joseph O’Connell of Berkeley Law School (Boalt Hall) presented at the Law & Politics Workshop this past Tuesday. Her paper collected data on the cycle of political appointments and political vacancies in the Carter, Reagan, George H.W. Bush, Clinton, and George W. Bush administrations. The most surprising conclusion of the paper is that politically appointed executive agency positions were vacant (or filled by acting officials), on average, 25 percent of the time during these administrations. This includes extended vacancies in fairly important posts; the median vacancy period for the head of OLC is 230 days for example.
Professor O’Connell suggests these findings should both trouble us from a policy perspective and cause us to rethink some of the assumptions about administrative agencies that underlie administrative law. She argues agency vacancies are bad from a policy perspective for three primary reasons. First, vacant political posts potentially lead to agency inertia because acting officials often lack the political will or capital to push through innovative initiatives or undertake controversial enforcement actions.
Second, vacancies potentially lead to agency confusion as careerists find their assignments often shifting and thus slack on their work, anticipating that the new appointee will ignore or reverse their work; this concern seems unpersuasive as significant policy shifts between appointees within the same administration seem relatively uncommon and policy shifts across administrations seem inevitable. At the extreme, this dynamic can lead to careerists rebelling against political control and effectively replacing the political appointees as primary policymakers.
Third, vacancies potentially undermine agency accountability by disconnecting one of the links between the administrative state and the political branches. As many participants noted, the bite of this claim is dependent on the forms of accountability one is concerned about. Temporary appointees may be more accountable to the President than permanent appointees, however the absence of confirmation makes them less accountable to Congress. Professor O’Connell responded that we should be troubled when officials are not sufficiently accountable to both the President and Congress. The bite of this claim is also contingent on which view of the administrative state one subscribes to. Those who emphasize political accountability as the basis for a legitimate administrative state are more likely to be troubled by this disconnect than those who believe the administrative state should be a politically isolated technocracy.
While most participants wanted more data about who the temporary appointees typically are before evaluating Professor O’Connell’s policy concerns, two interesting views on why this may not be troubling were put forth. First, there may be some optimal or necessary number of political appointees in the government that is less than the number of political positions available. However, Congress may recognize that vacancies are inevitable and therefore create additional political positions so that on average the optimal number of positions are filled. And if the optimal number of positions are filled on average, then at least the inertia and confusion problems are nonexistent. A way to explore this possibility is to look at corporate America and compare the vacancy rate in department head, Vice President, and Executive Vice President positions to the vacancy rate in the executive branch.
Second, vacancies and the attendant inertia may actually be congressional mechanisms for controlling the level of delegation. For example, Congress may not confirm any appointee to a particular post because inaction is better than the result of action given the prevailing political climate. For example, a weak Republican Congress may not want a powerful Democratic administration exercising its delegated authority to set OHSA regulations. There are two ways to explore this question. First, one could look for disparate confirmation rates between noncontroversial positions, such as National Archivist, and controversial positions, such as Assistant AG for the Civil Rights Division. Second, one could look for changes in vacancy patterns after alternative nondelegation tools became unavailable, such as the legislative veto.
Turning to the doctrinal aspects of the paper, Professor O’Connell tentatively suggests several administrative law doctrines in need of reconsideration given the pervasiveness of vacant political posts. First is the presumption that agency leaders have acted in good faith, which Professor O’Connell argues is based on the existence of a legitimate agency decisionmaker. She admits the case law on the issue “does not seem promising,” but suggests courts should be more willing to question the presumption of regularity when decisions are made by acting officials. The outlook is more grim than she admits, however. United States v. Armstrong suggests the presumption applies whenever an executive official is exercising statutorily delegated authority, which acting officials are as long as their acting capacity does not violate the Federal Vacancies Reform Act of 1988; even if they are violating the Act, the de facto officer doctrine indicates their actions are probably legally binding, although Professor O'Connell suggests a provision of the Act may implicitly bar operation of the doctrine. Finally, current rational basis review doctrine under the Fifth Amendment strongly suggest courts are unwilling to look into the subjective, actual intent of executive officials.
More provocatively, if pervasive political vacancies lead to agency inaction, then maybe courts should compel agency action more frequently than they currently do. Professor O’Connell suggests courts should worry less about interfering with agency resource decisions when they are pervasively leaderless because they are likely underutilized anyway. This neglects the concern in Norton v Southern Utah Wilderness Alliance that courts are simply ill-equipped for resolving abstract policy disagreements or constantly overseeing the day-to-day operationalization of compelled agency action.
It is also unclear how courts can resolve agency inertia without exacerbating either agency confusion or the lack of political accountability. Suppose a court compelled a leaderless Bureau of Land Management to regulate snowmobiles in wilderness study areas. Can the new Director of BLM disregard the compelled action as presumably BLM is capable of fully using its resources once the Director is in place? If so, then court-compelled action has all of the confusion concerns that exist under acting leadership. If not, then the compelled action makes the BLM look less politically accountable as its priorities are being partially set by the group most insulated from political control: life-tenured judges. In short, whatever the merits of courts compelling agency action, such action does not address the specific problems of pervasive political vacancies.
The paper concludes by suggesting a number of sensible steps that Presidents can take to minimize the number and length of agency vacancies, such as seeking two-year commitments from political appointees and better preparing the Presidential Personnel Office for the wave of vacancies that come two years into a President’s term. Presidents may also want to consider naming a political appointee’s successor well in advance. This is currently a popular trend in both the NFL and college football where a head coach’s successor is often named two or three years in advance.
Football adopted this model to keep top talent from leaving for other, more immediate opportunities. Similarly, the Deputy Assistant AG for Antitrust might not pursue private sector opportunities if he has public assurance that he is next in line to head the Antitrust Division. This practice will also cut down on the length of vacancies because the successor’s nomination can be sent to the Senate the day the vacancy opens up. This is valuable because Professor O’Connell’s paper shows most of the lag in appointing a successor for a political post occurs before a nominee is chosen, not during the Senate confirmation process.
Furthermore, this may help mitigate inertia, confusion, and accountability concerns. An acting official will have more political will and capital both inside and outside his organization if it is known he will soon be the confirmed political appointee in that post. This model also preserves accountability to Congress because the acting official knows he will soon have to face a confirmation hearing and may not attain confirmation if he is not responsive to congressional desires.
Finally, many participants were also intrigued by a suggestion in the paper that outside groups help fill lower-level political positions more rapidly. The idea is that AEI, the Center for American Progress, and other groups are already familiar with people qualified for these positions and can therefore provide a menu of names right after the election. This raises the usual concerns about capture, but it also raises interesting questions about stigmatization. Assuming Presidents have to disclose they located a nominee through AEI, otherwise uncontroversial nominees may be unfairly saddled with all of AEI’s ideological baggage.