Presidential Strategy amidst the “Broken” Appointments Process

Abstract

One of the notable features of the most recent presidential administrations has been the increasing prevalence of vacancies in presidentially appointed and Senate‐confirmed positions. This article explains when and how presidents actively take control of those positions once they become vacant. It evaluates its claims with original data on the most important Senate‐confirmed positions during the first year of the Obama, Trump, and Biden administrations, with a total of nearly 5,000 quarterly observations of 1,009 administration‐position cases. Estimates from Markov multistate models reveal that presidents use non‐default acting officials more frequently in ideologically opposed agencies, agencies connected to their campaign priorities, and the highest tier of leadership positions. Further, presidents pursue confirmation sparingly, often opting instead to use non‐default acting officials for extended periods of time. These results suggest that presidents have significant discretion over the leadership of the executive establishment that is at odds with our separation of powers system of government and the Senate's constitutional role to provide advice and consent on presidential appointees.

Acting(s) without consequence: The (lack of) public costs for vacancies and acting officials

“…Recent studies indicate presidents' decisions to employ actings rather than pursue the advice and consent process hinge on contextual factors such as their ideological alignment with the agency where the vacancy resides and whether the agency is connected to the president's priorities. For instance, Kinane (2021) and Piper (2022) show presidents more frequently use actings in agencies where they seek positive, or expansive, policy change. Further, Piper (2022) shows presidents use actings more frequently in ideologically opposed agencies and the use of actings sometimes prompts presidents to delay making formal nominations to those positions.…”

“…For instance, Kinane (2021) and Piper (2022) show presidents more frequently use actings in agencies where they seek positive, or expansive, policy change. Further, Piper (2022) shows presidents use actings more frequently in ideologically opposed agencies and the use of actings sometimes prompts presidents to delay making formal nominations to those positions. Thus, presidents' choices to empower individuals on an interim basis constitute a consequential utensil in their unilateral tool kit (Kinane, 2021; see also Lowande & Rogowski, 2021).…”

“…Additionally, Park (2022) demonstrates programs overseen by actings make more overpayments-a sign of agency inefficiency. However, because negative impacts on performance can be the objective for presidents seeking to hamstring agencies whose preferences or missions they oppose (Kinane, 2021;Piper, 2022), they may not constrain presidents' use of actings. Other scholars note actings suffer in comparison to Senate-confirmed officials because of limits on their service (O'Connell, 2020;Piper, 2022).…”

“…However, because negative impacts on performance can be the objective for presidents seeking to hamstring agencies whose preferences or missions they oppose (Kinane, 2021;Piper, 2022), they may not constrain presidents' use of actings. Other scholars note actings suffer in comparison to Senate-confirmed officials because of limits on their service (O'Connell, 2020;Piper, 2022). However, actings can serve for multiple years depending on when they take office and whether the president makes nominations to the position.…”

“…However, actings can serve for multiple years depending on when they take office and whether the president makes nominations to the position. 5 Focusing on "key" PAS positions, Piper (2022) notes that Presidents Obama, Biden, and Trump placed Senate-confirmed personnel in 53.1% of such positions by the end of their first years in office-a large percentage considering that most PAS positions become vacant when a new president takes office.…”