88 Pages Posted: 30 May 2009 Last revised: 13 May 2010
Date Written: November 1, 2009
Federal agencies make an astounding number of policy decisions, engaging in more lawmaking and adjudication than Congress and the federal courts. These policy judgments range from the seemingly trivial, such as the size of holes in swiss cheese, to matters of life-and-death importance, such as how to limit power plant emissions of sulfur dioxide, nitrogen oxides, and mercury. According to the statute books, over 1100 Senate-confirmed presidential appointees are supposed to run these agencies and direct these policy decisions, comprising a small but critically important component of a federal workforce of over 2.5 million employees. Yet filling these top-level positions in the federal administrative state is cumbersome, inconsistent, and at times controversial. New administrations are often quick to select the cabinet but take much longer to staff the next few layers. Appointee tenure is short, leading to many new openings a year or two later. Then agency officials flee government service near the end of an administration. Vacancies, particularly if frequent and lengthy, may have detrimental consequences for the modern administrative state. They contribute to agency inaction, foster confusion among nonpolitical employees, and undermine agency legitimacy. More surprising is that vacancies also can have beneficial repercussions for agency performance.
Using new data from the Office of Personnel Management (“OPM”), this Article provides a systematic study of executive agency vacancies from President Carter to President George W. Bush. By one measure, Senate-confirmed positions were empty (or filled by acting officials), on average, one-quarter of the time over these administrations. These extensive vacancies have potentially far-reaching implications for constitutional and administrative law. Participants in debates over the unitary theory of the executive might want to spend less time analyzing the legitimacy of restrictions on the president’s removal power and pay more attention to the absence of presidential appointments at the front end of the process. Commentators interested in congressional delegation of authority to agencies might consider how agency staffing affects adherence to congressional priorities and may limit broad delegations of authority. And scholars and courts interested in agency deference might contemplate how underlying theories of expertise and political accountability could incorporate empirical realities of political leadership in the federal bureaucracy. Changing legal doctrine may provide one mechanism for improving the staffing of executive agencies. Policy reforms outside of the courts targeted at reducing the number and length of vacancies--including appointee commitments to serve for two to four years, better training for new officials, and advance personnel planning by the White House--will, however, likely be more effective.
Keywords: administrative law, political appointees, Federal Vacancies Reform Act of 1998, unitary executive, nondelegation, agency deference, policy reforms
JEL Classification: H11, J63, K23
Suggested Citation: Suggested Citation
Joseph O'Connell, Anne, Vacant Offices: Delays in Staffing Top Agency Positions (November 1, 2009). Southern California Law Review, Vol. 82, p. 913, 2009. Available at SSRN: https://ssrn.com/abstract=1411812