*This is the eighth post in a symposium on William Araiza’s Rebuilding Expertise: Creating Effective and Trustworthy Regulation in an Age of Doubt. All posts from this symposium can be found here.
William D. Araiza’s Rebuilding Expertise presents an account of the decline of the role of expertise in the work of federal agencies and a prescription for reversing this trend. Professor Araiza carefully surveys key inflection points in the evolution of the relationship among the bureaucracy, the presidency, and the public, correlating the rise of Presidential Administration with both the decline of expertise and increasingly negative public attitudes about agency work. The story he recounts is one of escalating politicization of the fourth branch of government due to a combination of factors, including: judicial opinions strengthening the role of the President over appointments, increased presidential influence on the rulemaking process, the relocation of the work of agencies from career civil servants to contractors, and an increase in the number of political appointments relative to career civil servants.
The descriptive portions of Professor Araiza’s book remind us that the elevation of political appointee influence at the expense of civil service expertise is not new. The current state of affairs is not merely an artifact of the Roberts Court or the Trump Administration. Recent legal and political developments take an appropriately prominent place in Araiza’s account, to be sure. But, the broader lesson is that, to the extent that the balance between political accountability and expertise has been thrown off-kilter, it has been a generational project—Rome wasn’t burned in a day, so to speak. This point is important because it suggests that the reverse is also true—just as it has taken decades to upset the balance between political accountability and expertise, it may take decades to reach a better balance. In other words, Araiza’s work suggests that we should consider the project of rebuilding expertise a long-term one rather than the work of a single administration. Accordingly, Araiza’s prescriptions—including hiring more civil servants, limiting the role of contractors, and integrating agency expertise during more stages of the policy-formulation process—include both immediate and longer-term reforms.
In his prescriptions for rebuilding expertise, Araiza is careful to note the importance of striking an acceptable balance between the President’s power to control the executive branch and Congress’s interest in setting up regulatory programs rooted in expertise. Accordingly, Araiza often juxtaposes political accountability with expertise. But, here, I wish Araiza had done more to distinguish between expertise and, on the other hand, independence, two concepts that often are conflated. To be sure, it is uncontroversial to note that reducing the number and influence of political appointees leaves more room for agencies to develop and bring to bear their technical expertise. But, just as the relative independence of career staff does not guarantee that they will have expertise, political appointees themselves can be encouraged to develop expertise, despite their loyalty to the political and policy goals of a presidential administration. As a result, there is not necessarily a tension between political accountability and the development of expertise. Perhaps most saliently, Congress can advance its interest in rooting agency decisions in expertise, without unduly detracting from an agency’s political accountability, by making greater use of statutory qualifications for political appointees.
When creating offices to be filled by political appointees, Congress can, and sometimes does, place qualifications on those offices. At times, these qualifications are used to reduce conflicts of interest, ensure partisan balance, or place military power under civilian control. But, other times, Congress expressly requires political appointees to have subject matter competency in the areas they are appointed to oversee. And these competency requirements can be quite specific and demanding. The Director of the Federal Housing Finance Agency, for example, must have a “demonstrated understanding of financial management or oversight, and have a demonstrated understanding of capital markets, including the mortgage securities markets and housing finance.” Similarly, the Chief Scientist of the National Oceanic and Atmospheric Administration must be an “individual who is, by reason of scientific education and experience, knowledgeable in the principles of oceanic, atmospheric, or other scientific disciplines.”
Although these are not the only examples, similar subject matter qualifications are relatively rare. As a result, Congress has an opportunity to expand its use of statutory qualifications, either by adding qualifications to existing offices or by adding qualifications to new offices as they are created. By using this strategy, Congress can foster a culture of expertise within the executive branch at the political level, where it would have perhaps the greatest impact.
Importantly, by augmenting its use of statutory qualifications for political appointees, Congress can address (although admittedly not fully resolve) some of the concerns that Araiza raises in his book. First, by using statutory qualifications, Congress would defuse some of the tension between political accountability and civil service expertise. A political appointee with substantive expertise—an expert appointee—would be able to interface meaningfully with the civil service on technical issues while still implementing the policy goals of the administration. An expert appointee would be well-positioned to mediate between the civil service and OIRA, for example, helping the civil service understand political priorities and helping OIRA understand the technical considerations that went into the agency’s proposals. Indeed, one even could hope (although not guarantee) that an appointee with an educational background matching the field she is regulating would be acculturated to have respect for the technical norms prevalent in the field. If so, we might expect an expert appointee to be more reluctant to advance a policy that is poorly supported by experts in the civil service, even if the policy could be defended in court.
Second, the use of statutory qualifications is a partial antidote to the diminution of agency expertise caused by a unitary vision of the executive. Independent agencies with heads protected from at-will removal have long been a bastion of agency expertise. But, as the Court has moved toward a unitary vision of the executive branch, the future of independent agencies has been called into doubt. But, even if the Court strikes down tenure protections or other indicia of agency independence as unconstitutional, expert appointees do not necessarily raise the same constitutional concerns. Appointees with substantive qualifications attached to their offices—but no removal restrictions—would still be at-will appointees. This arrangement, as a result, does not trigger the Court’s stated concerns about the dilution of presidential control of the executive branch. Specifically, the presence of expert appointees within the executive branch would seemingly satisfy the Court’s concern that prompted it to quip in Free Enterprise that “One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts.” Despite its anti-expertise rhetoric, presumably the Court did not mean to object to at-will appointees who also happened to be experts in their fields.
It is true that the Court’s concerns could change—an aggressive application of the unitary executive might imperil even statutory qualifications. And indeed, some modern presidents have pushed back on the qualifications set by Congress. President Clinton, when signing the Lobbying Disclosure Act of 1995, added his view that “The Congress may not, of course, impose broad restrictions on the President’s constitutional prerogative to nominate persons of his choosing to the highest executive branch positions.” Nevertheless, as Clinton’s signing statement suggests, constitutional concerns about statutory qualifications may be more salient for high profile or cabinet level appointees and less salient for the many lower-level appointees that fill the executive branch. For example, the Court and President may not much care whether the EPA’s assistant administrator for water is given statutory qualifications, despite the importance of this position to water quality policy.
Moreover, constitutional concerns aside, statutory qualifications could have the desired effect of fostering expertise within the executive branch even if the President does not feel bound to nominate people with the required expertise. For example, the Senate could demonstrate its seriousness about the qualifications by choosing to advance more quickly those nominees who possess the statutory qualifications.
In sum, there is much to admire in Rebuilding Expertise and I appreciate the opportunity to reflect on it. Indeed, the suggestion that Congress should consider using statutory qualifications more frequently to foster expertise is not meant to doubt the utility of Professor Araiza’s many other well-considered suggestions. It is, rather, intended to build on these suggestions, reflecting the same concerns that Araiza ably expressed and responding to some of the tensions between expertise and political accountability that he navigated so deftly in his excellent book.
Evan C. Zoldan is a Professor of Law and Director of the Legal Institute of the Great Lakes at the University of Toledo College of Law.