As Professor Anne O’Connell has effectively documented, the delay in Senate confirmations has resulted in many vacant offices in the most senior levels of agencies, with potentially harmful consequences to agency implementation of statutory programs. This symposium contribution considers some of those consequences, as well as whether confirmation delays could conceivably have benefits for agencies. I note that confirmation delays are focused in the middle layer of political appointments—at the assistant secretary level, rather than at the cabinet head—so that formal functions and political oversight are unlikely to be halted altogether. Further, regulatory policy making and even agenda setting can depend more critically on the work of career civil servants than on the political leadership of an assistant secretary, further reducing the cost of midlevel vacancies. The Article then suggests that confirmation delays can have positive effects, although the list is short. Senior civil servants, serving as acting officials, can offer valuable expertise on regulatory decisions, and their expertise with respect to core implementation and enforcement issues may exceed that of more generalist political appointees. Additionally, confirmation delays may prompt both increased leadership by longtime civil servants and reduced turnover in their ranks, with benefits to overall agency function. On the other hand, confirmation delays surely cause significant problems by reducing resources to agencies and increasing turnover in management. Missing confirmed appointees also may contribute to slower White House regulatory review. More research is needed, but at a minimum, thinking about confirmation delays presents another opportunity to reflect on whether we should thin the layer of political management in agencies and on the relative importance, to administrative agency legitimacy and function, of specific expertise, compared with political accountability.
Nina A. Mendelson, The Uncertain Effects of Senate Confirmation Delays in the Agencies, 64 Duke L.J. 1571-1606 (2015)
Available at: http://scholarship.law.duke.edu/dlj/vol64/iss8/3/