Vacant offices: Delays in Staffing Top Agency Positions
2008; USC Gould School of Law; Volume: 82; Linguagem: Inglês
ISSN
0038-3910
Autores Tópico(s)Property Rights and Legal Doctrine
ResumoFederal 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 oxide, 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 * Assistant Professor, Berkeley Law School (Boalt Hall), University of California, Berkeley; J.D., Yale Law School; Ph.D., Harvard University. I am grateful for helpful feedback from Kathryn Abrams, Matthew Adler, Stuart Benjamin, Lisa Bressman, Steven Croley, Brannon Denning, Daniel Farber, Josh Fischman, Philip Frickey, Jim Hines, Daniel Ho, Karen Hult, Stuart Jordan, David Lewis, Robert Lieberman, Paul Light, Robert MacCoun, Justin McCrary, Elizabeth Magill, Robert Merges, Jamie O’Connell, Reece Rushing, Joseph Sax, Matthew Stephenson, Peter Strauss, Stephen Sugarman, Michael Ting, Leti Volpp, Jason Wilcox, David Zaring, Christopher Zorn, participants at the Berkeley Law Faculty Retreat, students in my Advanced Administrative Law class, and the Berkeley Law Junior Scholars Working Group. An earlier version of this Article was presented at the Legal and Political Perspectives on Administrative Law and Governance Conference at the University of Virginia School of Law (November 2008), the Law and Politics Workshop at the University of Chicago Law School (February 2009), the annual meeting of the Midwest Political Science Association (April 2009), the Building Theory through Empirical Legal Studies Conference at the University of California, Berkeley (April 2009), and the Political Economy and Public Law Conference at the University of Chicago Law School (June 2009); participants at those conferences improved this project. Parts of this Article appeared (in modified form) in an online report I prepared for the Center of American Progress, “Let’s Get It Started: What President-Elect Obama Can Learn from Previous Administrations in Making Political Appointments” (January 2009). Tess Hand-Bender, Keri Klein, John Yow, and Carol Yur provided truly outstanding research assistance; Doug Avila quickly tracked down sources for me, Wanda Castillo helped with many administrative tasks, and the editors of the Southern California Law Review managed an extraordinarily helpful editing process. Cathy Penn, of the Office of Personnel Management (“OPM”), provided critical data from the agency’s central personnel files. All errors are my own. DO NOT DELETE 9/15/2009 5:34 AM 914 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 82:913 important component of a federal workforce of 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, Senateconfirmed 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.
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