How presidents sidestep the Senate’s ‘advice and consent’ on nominees

Presidential nominees to top-level executive positions make headlines, and occasionally produce drama, but their experiences in the media’s glare do not provide a full picture of how presidents approach, and often game, the Senate confirmation process.

A recent study by Yale political scientist Christina M. Kinane shifts the focus away from the prospects or fate of individual nominees to examine the frequent instances when presidents intentionally leave positions vacant or fill them with interim appointees, who can then wield authority for lengthy periods without Senate confirmation.

The study, published in the journal American Political Science Review, found that presidents are more likely to install interim officials into positions that have a high capacity to influence public policy, allowing the White House to pursue its priorities while skirting Senate oversight.

“Presidents don’t need to engage in the formal nomination process; they have options,” said Kinane, assistant professor of political science in the Faculty of Arts and Sciences. “My analysis shows that temporary appointments don’t happen by chance or as the byproduct of an elaborate confirmation process. They are the result of strategic decisions intended to advance a president’s policy agenda while circumventing the Senate’s constitutional prerogative of advice and consent.”

Currently, at least 1,200 executive-branch positions require Senate confirmation, including cabinet secretaries, undersecretaries, agency directors, and other personnel. Making appointments to these positions is the White House’s most effective means to control the policy process, said Kinane, who is writing a book on presidents’ strategic use of their appointment power.

Using information from archived government directories, Kinane developed a novel dataset of positions that require Senate confirmation spanning every presidential administration from 1977 through 2016. The dataset contains 11,043 observations about the yearly status of specific positions, such as agency directors, general counsels, and undersecretaries, for all 15 executive departments as indicated in the published directories.

Kinane assessed each position’s value to the given presidential administration by determining its capacity to influence an agency’s actions and how it aligned with the president’s policy priorities.

“My theory gets away from the person and focuses on the position,” she said. “What can the position do to advance the president’s policy agenda? Does its responsibilities and jurisdiction have a high capacity to impact and direct agency action? Does it have the ability to make policy decisions?”

Of the 11,043 status observations, 1,165 (10.6%) were filled by interim appointees and 989 (about 9%) were vacant. When presidents prioritize expanding a specific agency’s policymaking actions, Kinane found, they are about 37% more likely to fill policy-focused jobs in those agencies with temporary appointees than leave them empty.

Congress has granted presidents wide latitude to install temporary officials. The Vacancy Act of 1868, which conferred interim appointment power to the president, initially limited the tenure of temporary officials to 30 days. Passage of the Presidential Transition Effectiveness Act of 1988, however, increased the tenure to 120 days. In 1998, the Federal Vacancies Reform Act expanded this tenure to 210 days with the possibility of renewal for up to 720 days.

President Trump took advantage of this leeway, appointing several cabinet-level officials on an acting basis and commenting that he prized the flexibility that interim appointments afforded him. The study shows that the practice of making interim appointments predates the Trump administration. Between 1996 and 2016, 40% of vacant positions requiring Senate confirmation reported to the Government Accountability Office went without nominations, and 60% of those positions were filled by interim appointees, according to the study.

The issue has implications on the constitutional system of checks and balances that was designed to prevent any one branch of the government from dominating the others, Kinane said.

“While interim appointees prevent prolonged vacancies, they can wield substantial power without facing the intense scrutiny that accompanies the confirmation process or gaining the approval of a majority of senators,” she said. “They have all the authority of a confirmed official without the vetting that accompanies confirmation.”