Every four to eight years, one of the first questions after most presidential elections is who will occupy the key positions in the new administration. And there are a lot of positions to be filled. In reality, most of the day-to-day decisions that directly impact individuals are made by careerists. But the key policy decisions that ultimately guide those day-to-day decisions are made by the political appointees. Generally speaking, U.S. law recognizes two types of political appointees — those that require Senate confirmation and those that do not.
For the most part, positions that do not require Senate confirmation are typically part of the White House staff. There are other positions that do not require Senate confirmation (in the phrasing of the Constitution — “inferior officers”) who answer to Senate confirmed appointees, but recent years have seen a lot of legal wrangling about what positions can constitutionally be appointed by the president or Senate-confirmed officers without Senate confirmation. Prime examples of staff positions that do not require Senate confirmation include the Chief of Staff, the National Security Advisor, and the Press Secretary. What unifies all of these positions is that their legal authority is limited to advising the President (or an agency head). The key thing about positions that do not require Senate confirmation is that they have no legal authority to make policy decisions on their own behalf. The can recommend policies to the President or to some agency, but the President or the agency head has to sign off on the recommendation. And for the most part, the early announcements that we have had from President-Elect Biden and his transition office are White House staff positions that do not require Senate confirmation.
In recent administrations, we have seen the creation of certain staff positions with broad policy areas of responsibility (often referred to in the media as Czars). Conservatives tend to carp about these positions during Democratic administrations while going curiously silent during Republican administrations. The reason for these positions is that, due to the problems with filling Senate confirmed positions, presidents need people with policy expertise to fill the vacuum until the appropriate Senate confirmed postitions can be filled.
The key to Senate-confirmed positions is that most, but not all of them, do have the authority to act on their own. Laws frequently grant some administrative agency or department the authority to enact regulations or policies or to make decisions on implementing the statute. (For example, what pollutants and pollution sources are subject to regulations under the Clean Water Act or Clean Air Act.) A handful of the Senate confirmed positions are in the White House (Office of Management and Budget, Office of Drug Control Policy), but most are the top levels of the various cabinet department and agencies (Environmental Protection Agency, Food and Drug Administration, etc.).
The current list of Senate confirmed positions numbers over 1200 positions. Some of these positions — mostly judicial positions and things like the Federal Reserve Board — do not become open at the start of an administration. Others — ambassadorships, the U.S. Attorneys for the various districts — tend to be a mix of careerist and political appointees which can easily be filled by careerists on an acting basis while the new President decides on a permanent appointment to the position. (For example, it is normally late Spring or early Summer before new U.S. Attorneys are named for most of the districts.)
That leaves around 400 positions that need to be filled immediately but will not be immediately filled. The last estimate that I saw (from September) showed that about one-third of the positions were being occupied on an “acting” basis and that some had never been filled during the Trump Administration. And that allows for the people being regulated by the agency to challenge the authority of the acting head in an effort to void any new regulations. In other words, if you do not fill a vacancy on a permanent basis, you need to make sure that you follow the rules precisely because there are limits on who can be an “acting” Secretary or Under-Secretary.
In terms of filling vacancies, media attention tends to focus on the big slots — the cabinet departments that are in the line of succession and those big agency leader positions — Director of National Intelligence, Director of Central Intelligence, Environmental Protection Agency — that are viewed as cabinet equivalent. But the real work in government is done by the sub-cabinet positions that have responsibility for specific topics. And there are a lot of these positions in the specific departments. For example, the Department of Defense has approximately fifty positions that need to be filled. Even the Environmental Protection Agency has fifteen positions that need Senate confirmation.
It is, of course, possible to run the departments and agencies with just the top position filled, but the reason for having these assistant secretaries and under-secretaries and deputy secretaries is that these agencies are large and you want a political appointee implementing the administration’s policies in charge of them to avoid everything needing to go to the Secretary’s desk (where the Secretary will get quickly overwhelmed if they are handling and reviewing every draft regulation). Additionally, some of the work on drafting policies has to go to senior careerist and the department’s attorneys. In a fully-staffed department, these people report directly to the General Counsel or to an Under-Secretary who can make clear what the Administration’s policy goals are and make sure that nothing unwanted gets slipped into a proposed regulation or policy. When these third and fourth level positions are not filled, the supervision is, by necessity, more remote.
From my own experience in state and local government, it is one thing for the “big boss” to supervise ten people or so directly. When that number gets up to 40 or 50, the big boss only sees a small group on a day-to-day basis and only has contact with others when they are assigned to an important project. Almost by definition, careerists have been around long enough to have their own opinion on what an agency or department should be doing. (Their opinion is not unimportant. Their opinions tend to be well informed, and senior careerists tend to be dedicated to the official mission of their agency.) But their goals will not necessarily be the same goals as the President. (In fact, their goals almost certainly will not be the same as the President’s goals.) You need to have somebody who has the time to supervise all of the policy people in each part of the agency (or at least the time to supervise the careerists in charge of each of the policy units within a given part of the agency).
But the sheer number of positions to be filled combined with the need for Senate confirmation makes it unlikely that all of the positions will be filled quickly. As of mid-September (and only looking at the cabinet departments), approximately 130 out of 300 positions were vacant. In part that reflects the turbulence of the Trump Administration, but some of these positions have gone unfilled for all four years.
Over the next two months, as the transition begins to take shape, we will start hearing announcements of the people who will fill the top positions — the cabinet members and cabinet equivalent positions like Ambassador to the U.N., National Security Advisor, CIA Director, EPA Administrator, etc. These people are all important, but it will be the people named to the second and third-level positions without much fanfare in January, February, and March who will have the chief responsibility for the direction of this Administration.
As the positions begin to be filled, my expectation is that we will have posts on those appointments. But for now, we welcome reader comments on who you would like to see in these positions.
