I am delighted to contribute to this symposium on the 2016 Report to the President-Elect that the American Bar Association’s Section of Administrative Law and Regulatory Practice issued shortly before the presidential election. As Emily Bremer noted in her symposium introduction earlier today, a number of administrative law scholars and experts will be doing short posts on the various recommendations contained in the Report.
I thought it was fitting to do the first post on our recommendations concerning the President’s appointments to his administration. I say fitting because three years ago today the Senate Democrats voted to kill the filibuster as to President Obama’s administrative and judicial appointments (though not Supreme Court appointments). At the time Senate Majority Leader Harry Reid explained:
For the first time in the history of our republic, Republicans have routinely used the filibuster to prevent President Obama from appointing an executive team and from appointing judges. . . . The need for change is so, so very obvious. It’s clearly visible. It’s manifest we have to do something to change things.
President Obama “welcomed” the change, noting that “[a] simple majority vote no longer seems to be sufficient for anything, even routine business, in what is supposed to be the world’s foremost deliberative body.” In a now-apparent prophetic warning, Senate Minority Leader Mitch McConnell observed: “Some of us have been here long enough to know the shoe is sometimes on the other foot. . . . You’ll regret this, and you may regret it a lot sooner than you think.”
It is against this backdrop that the ABA AdLaw Section advanced three main recommendations regarding the President’s obligation to make appointments to his administration:
First, both the President and the Senate should act promptly to make appointments to the administration. As we noted in the Report, “[p]rompt appointments are essential for the government to operate and to act efficiently and consistently in the public interest.” Critically, we added, the President’s “primary control over the administrative apparatus does not reside in your ability to issue orders or to monitor performance, but rather is exercised through your selection of sound administrators to lead those agencies. That counsels deep and urgent attention to the appointment process on all sides.” (Emphasis mine.)
Second, “effective administration of regulatory and beneficiary programs requires the appointment of persons of high ability to positions of leadership.” The Report’s advice concerning how to balance selecting high-quality leaders while rewarding loyalists is worth repeating in full here:
We recognize that Presidents regularly appoint people who have actively participated in the successful presidential campaign, or who are party loyalists, or who are promoted by influential constituency groups. Appointments stemming from these factors can, of course, be appropriate. Nevertheless, we, as practitioners and others involved in the substantive areas that will be directly affected by your appointments, urge you not to allow those factors to overshadow qualities such as competence, leadership ability, and familiarity with the programs that will fall within your appointees’ charge. We also urge you to observe the many time-honored qualifications for presidentially appointed offices that are embedded in legislation, which can help to secure the cooperation of disparate interests that is essential to the success of governmental programs. Such qualifications in the people you appoint are important to the fulfillment of your own constitutional responsibility to take care that the laws be faithfully executed.
Third, as experts in the administration of the federal regulatory state, we also strongly encourage the President and his transition team to appoint a Chair for the Administrative Conference of the United States (ACUS) and to secure the funding it needs for continued effectiveness. I blogged more about this recommendation in my initial open letter to the transition team, including my endorsement of the current Chair nominee (Matt Wiener). As I noted in that post, “whoever the new administration identifies as the potential next ACUS Chair, please do so quickly, as it’s vital that ACUS continues its important work of helping the administrative state work more effectively.”
These are just some quick thoughts on the ABA AdLaw Section’s recommendations regarding presidential appointments in the federal administrative state. Definitely go check out the full Report here.
This is post is part of the Symposium on the ABA AdLaw Section’s 2016 Report to the President-Elect. An introduction to the symposium is here, and all of the posts are collected here. The views in this post, which expand upon the recommendations set forth in the Report, are the author’s own and do not necessarily reflect the views of the ABA AdLaw Section. The full Report is available here.