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| Volume 82 | July 2009 | Number 5 |
Vacant Offices: Delays in Staffing Top Agency Positions
Anne Joseph O'Connell
82 S. Cal. L. Rev. 913
ABSTRACT
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.
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