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. Continue Reading...