Unconfirmed Power
Unilateral Governance at the Pleasure of the President

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When Acting Secretary of Homeland Security Chad Wolf resigned on January 11, 2021, he was the longest-serving unconfirmed Cabinet secretary in U.S. history. Wolf served as one of the nation’s top decision-makers on matters of immigration, national security, and disaster and pandemic response for 425 days without the requisite Senate confirmation. Still, his acting status was not an anomaly in the Trump administration. President Trump consistently avoided Senate confirmation for more than a third of vacant positions, and instead relied on acting appointees to permanently staff his administration. To many scholars and political observers, Trump’s delight in the "flexibility" of acting appointees was unusual and perhaps simply explained with an asterisk indicating an outlier strategy from a Washington outsider. Yet, the strategy to maintain vacancies with acting appointees was not unprecedented, just previously overlooked. All administrations experience vacancies in agency leadership, and presidents have consistently relied on acting appointees to fill in the gaps. In fact, over the past four decades, on average each year, 27 percent of the top appointees leading the executive branch were doing so on an acting basis. And they did not serve for just a few days: the average acting served for 290 days, long enough to shape the direction of policy.

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Despite the thousands of major decisions that these individuals made when running the government, relatively little scholarly attention has been paid to vacancies and acting appointees. I argue that this omission is due, in large part, to the conventional definition of a "vacancy." For presidential appointments that require Senate confirmation, observers have traditionally defined a vacancy as the absence of a Senate-confirmed appointee. Our previous use of this term led us to believe that agency leadership was either missing or replaced with the bureaucracy’s version of a "substitute teacher," and that policy making was stalled or stagnant. Scholars assumed that major political decisions had to wait for the permanent, confirmed appointee. In contrast, I argue that acting appointees – who legally exercise the same authority as their Senate-confirmed counterparts – can be powerful policymakers. Yet, we have completely ignored thousands of acting appointees who actively advanced the president’s political objectives and the policymaking they did in the interim.

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Unconfirmed Power: Unilateral Governance at the Pleasure of the President corrects this striking omission with the first comprehensive examination to date of the political power that vacancies and acting appointees offer presidents as a means to unilaterally control the administrative state. The book calls new attention to a long-standing appointment strategy that has considerable ramifications for our principles of democratic accountability and separation of powers. In a democracy, the power to select the decision-makers who determine the direction of national policy is meant to reside with the governed: members of Congress hold their positions at the pleasure of voters, standing for reelection at regular intervals. Yet, in the contemporary reality of legislative gridlock and partisan polarization, Congress is not making major policy decisions. Instead, the modern American administrative state is responsible for an overwhelming majority of the government’s work. And it requires the selection of unelected political appointees to manage and direct the now indispensable bureaucracy, and who ultimately serve at the pleasure of the president.

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One of the president’s most influential powers, then, is to appoint the cabinet secretaries, commissioners, assistant secretaries, and other personnel who effectively serve as our nation’s policymakers. The Founders, anticipating the potential weight of the administrative state, built in an important check on this executive power: the Senate’s advice and consent. Naturally, our general understanding of appointment politics centers on how the Senate constrains the president’s selection of high-powered personnel through formal nominations. This presumes, however, that presidents unfailingly submit nominees as their only appointment strategy, when presidents do not because it is not their only option. In fact, between 1996 and 2016, nearly 40 percent of vacant positions reported to the Government Accountability Office went without subsequent nominations; and 60 percent of those vacant positions were filled by actings without the prospect of a confirmed appointee.

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Unconfirmed Power details the politics and policy implications of this unconventional appointment strategy using a mixed-method approach that includes a new theoretical framework, quantitative analyses of a new continuous dataset, in-depth interviews with former acting appointees, and qualitative case studies of agency actions that acting appointees have directed. The book examines how vacancies create opportunities for unilateral governance, why presidents choose to appoint actings instead of leaving vacant positions empty, and how presidents leverage those actings to shape the administrative state and achieve their policy goals. As the book elaborates, the Constitution does not empower presidents to make these interim appointments. That executive power expansion was ceded by Congress in the Vacancies Act of 1868, and its subsequent 1989 and 1998 reforms, to ensure administrative efficiency and continuity of bureaucratic leadership. In doing so, Congress created the prospect for two varieties of acting appointees: career actings drawn from the ranks of the standing civil service and political actings selected from the cadre of presidential appointees. Drawing on elite interviews, I present qualitative accounts from former career and political actings who served across the past six administrations about their roles in directing agency policymaking and enforcement. In contrast to the long-standing assumption that actings function simply as provisional, limited seat-fillers for Senate-confirmed appointees, I find that political actings regularly operate as if they were Senate-confirmed.

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With these surrogates as an outside option to seeking the Senate’s consent, the balance of power in confirmation bargaining tilts in the president’s favor. And given that the prevailing scholarship overlooks these dynamics, we need a new theoretical framework to account for this empirical reality. I develop an original theory of appointment politics to explain when we should expect to see presidents use each type of acting or none at all. Characterizing the value of vacant powerful positions reveals how empty positions and acting appointees are distinct features of presidential appointment strategy. Building on this theoretical foundation, the book moves to empirically examine how presidents use actings to achieve their policy objectives.

 

To begin, I introduce the (Un)Confirmed Appointments dataset, a brand-new continuous dataset of all appointees, empty positions, and nominees for nearly 500 Senate-confirmable positions across the 15 executive departments from 1981 to 2021. Since a centralized database of all acting appointees does not exist, this data – collected from hundreds of sources – is our first opportunity to glimpse the extent of acting administrations.  I find that of the nearly 6,200 appointees who served during those four decades, 44 percent were acting appointees – nearly three times what my previous research estimated. The book presents the first comprehensive description of when, where, and for how long vacancies have persisted and actings have served across administrations, departments, and political contexts, before turning to questions of what explains the presidents’ appointment choices. I demonstrate that presidents are more likely to appoint actings to positions with high levels of authority to direct policymaking activity, compared to positions with little capacity to guide agency actions. Notably, this means that unconfirmed appointees are more likely to serve in exactly the positions for which the Framers sought to require the Senate’s consent.

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With the political logistics and quantitative reality of vacancies firmly established, I turn to the government actions that actings have directed without Senate consent. In a series of qualitative case studies on agency enforcement, monitoring, and rulemaking actions, I demonstrate that actings’ roles in policy making is often remarkably similar and frequently indistinguishable from that of confirmed appointees. It is this potential for acting appointees to be replacements, not just fill-in substitutes, that alters the balance of power in Senate confirmation and grants presidents a means to unilaterally govern. As Congress grows more intransigent and unproductive – and nominations languish from the Senate’s chronic inaction – the president’s power to select the government’s actual decision-makers will be increasingly important for understanding the evolving nexus between citizens, the government, and the policies enacted by the American administrative state.

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