Presidential Policymaking by Unilateral Inaction

• In Event: The Presidency and Unilateral Action

Abstract

Once their appointee selections are confirmed by the Senate, presidents have few opportunities to influence independent regulatory agency decisions. Or do they? Presidents, for decades, have left agencies with protracted vacancies that restrict or eliminate their ability to engage in official business. When multimember commissions accumulate vacant positions and lose their mandated quorum, they cannot regulate, enforce, or otherwise implement the law. But presidents need not render agencies defunct to influence their policymaking. Vacancies on regulatory commissions concentrate power in the hands of the remaining appointees and, in many cases, create the opportunity to designate acting chairpersons with agenda setting power. I argue that presidents deliberately avoid appointing replacement commissioners to exploit the power shifts associated with an agency’s vulnerability to quorum loss. Combining original data on independent regulatory commission appointments and the full set of their actions from 1995 to 2020, I examine how presidents use vacancies and quorum loss vulnerability to advance their regulatory agenda. I find that the features designed to insulate independent regulatory commissions from political influence – staggered terms, quorum mandates, partisan balance – inevitably present presidents with opportunities for political control.

Author

• Christina M. Kinane, Yale University