The Executive in Chief

On President’s Day we celebrate the great leaders of our country, but what of the 2.5 million underlings (excluding military personnel, government contractors and government grantees) in the Executive Branch that make the president’s orders come to fruition? Whether they are presidential appointees or career bureaucrats, they are working hard making the rules and regulations that govern the country.

The Executive Branch is making more rules than Congress, and doing more judging than the Federal Judiciary. In 2007, Congress enacted 138 public laws. Federal agencies finalized 2,926 rules, of which 61 were labeled as major regulations. Article III and Bankruptcy judges conducted about 95,000 adversarial proceedings. Federal agencies completed over 939,000 such proceedings, including immigration and social security disputes.

How does this massive organization function? It is larger than Walmart, which is the world’s largest private employer with 2.2 million employees. The Executive branch employees are divided into officer s and non-officers. The officers are divided into Principal and inferior officers. Then you have merit based career employees and appointees. The appointees are divided further. You have positions in agency-specific personnel systems, such as the Dept. of Homeland Security. These function the same as other merit based systems, only are agency specific.

Then you have positions in Schedules A, B and C, which are situations where it is not feasible to hold the normal examinations. Schedule A positions are specific skilled occupations, such as attorneys. Schedule B permits exams but does not use them to compare job seekers, and is typically for newly created agencies. Schedule C involves “positions of a confidential or policy-determining nature.”

Then you have jobs filled by persons in the Senior Executive Service. Above that, at the tippy top of the mountain, you have positions requiring presidential nomination and Senate confirmation. We typically think of people like the Secretary of State, or the Defense Secretary. However, there is also a multitude of deputies, Assistant deputies, administrators, CFOs, and more. All told, there were 1,141 Senate-confirmed positions in 2008. That isn’t including the vacant or temporarily filled positions, which are much more common than having a vacancy at a private company.

From Regan to George W. Bush, Senate-confirmed positions were vacant an average of 25 percent of the time. That is a long time to have a massive agency running without leadership. Cabinet positions are usually filled quickly, but once you get below that level, positions take a long time to fill. In 1987-2005 it took presidents an average of 173 days to nominate non-cabinet agency heads. It took the Senate another 63 days to confirm these nominations. For deputy non-cabinet agencies it took 201 days to nominate and another 82 days to confirm. That is over a year without anyone in a senior leadership position. Factoring the high level of turnover every 4-8 years due to changes in administration, quite often whole divisions are being run by an empty chair. For example, from 2006-2009, there was no permanent Surgeon General.

One way used to partially offset this vacuum in leadership is the appointment of acting agency heads. For example, the Deputy Administrator, Bob Perciasepe, of the EPA is currently also the acting Administrator. Acting administrators do not have the full power of Senate-confirmed appointees. Additionally, their temporary and short tenure, statutorily limited by the Federal Vacancies Reform Act of 1998, leaves career employees confused and directionless. They do not know whether to move forward with the policies or simply wait the situation out. In particularly political areas, they may think the next director will simply reverse course.

All of this has real world consequences on the functioning of the Executive. In September 1989, when hurricane Hugo struck South Carolina, only one of eight top positions in FEMA was filled by a Senate-confirmed appointee. Less than a year before Hurricane Katrina, over one third of FEMA’s important policy positions were vacant. Vacancies create agency inaction, confusion in the workforce, and loss of accountability. As assistant professor at Princeton University David Lewis put it, “If you told people on Wall Street that every four years or eight years, you were going to lop off the top of a Fortune 500 company and say the company would operate normally, you’d be called crazy.”

Additional Research

Yale, Vacant Offices: http://www.law.yale.edu/documents/pdf/LEO/AOConnell_VacantOfficesforYLS.pdf

Law Brain, The Executive Branch: http://lawbrain.com/wiki/Executive_Branch

Cornell, The Powers of the Executive Branch: http://www.law.cornell.edu/wex/executive_power

White House, Executive Order—Improving Critical Infrastructure Cybersecurity: http://www.whitehouse.gov/the-press-office/2013/02/12/executive-order-improving-critical-infrastructure-cybersecurity

Policy Archive, the New Vacancies Act: http://www.policyarchive.org/handle/10207/bitstreams/708.pdf

The Federal Vacancies Reform Act of 1998: http://www.gsa.gov/graphics/admin/Vacancies_Reform_Act1998.pdf

 

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