Relinquishing Consent: Senate Confirmation Delay and the President's Actings

• In Event: Vacancies, Delays, and Legislative Constraints in Presidential Appointment

Abstract

At his first Cabinet meeting of 2019, six of President Trump's twenty-four Cabinet members were interim appointees, including two Acting Secretaries, an Acting EPA Administrator, and an Acting Attorney General. Presidents are supposed to be constitutionally constrained by Senate approval for these top appointments, making Trump's affinity for acting appointees and his perspective that they might be preferred for their flexibility appear rather anomalous. Yet, more than a third of secretaries who served for more than a week in the previous six administrations did so in an acting capacity, and the Trump administration saw that proportion climb to over half. Moreover, cabinet secretaries make up just a small portion of the department leadership positions, with the authority to determine the actions of government, that the president can fill unilaterally with interim appointees. Interim appointments therefore present powerful opportunities for presidents to consolidate their political control of the bureaucracy without having to pursue Senate confirmation. And presidents take advantage by placing acting appointees in more than half of vacant positions. Consequently, when presented with a nominee to confirm, the Senate often faces a status quo where the position is already filled with an interim appointee. In these cases, any delay in formal proceedings effectively relinquishes the Senate’s constitutional prerogative to veto the president’s appointee selection. Even though we might expect interim appointees to encourage the Senate’s haste and limit delay, existing studies of confirmation delay are confined to the characteristics of the nominee vis-à-vis the Senate and the president. I argue that the Senate’s choice to not confirm is also driven by the value of interim presidential appointees for achieving the Senate’s policy priorities. I demonstrate this by analyzing the time that each formal nomination spends in the Senate, conditional on the president submitting one. Leveraging a new, continuous dataset of interim appointees and nominees to leadership positions in Executive departments from 1981 to 2021, this study highlights the willingness of the Senate to forgo formal confirmation when their priorities for agency action align with those of the president.

Author

• Christina M. Kinane, Yale University