Notice & Comment

Vacancies With Bite, by Nicholas Almendares

In Congress’s Anti-Removal Power, Aaron l. Nielson & Christopher J. Walker propose something of a workaround to secure some degree of agency independence from the president in the not entirely unlikely event that the courts rule statutory restrictions on the president’s removal power unconstitutional. They suggest that Congress can, in effect, discourage removal by making it more difficult for the president to get their preferred replacement confirmed. A key example of what they propose is the Senate flexing its muscles in the appointments process by raising the cloture threshold for confirmation votes, which would allow a small group of senators to halt any replacement. If lawmakers could credibly commit to this, then the president will think twice about firing someone. This, in turn, takes away removal as a credible threat, giving the agency more autonomy. There are limits, of course: if the agency official is intolerable enough the president will pay whatever costs or put up with whomever the Senate is willing to confirm to be rid of the post’s current occupant. 

I set out a lot of my thoughts about Nielson and Walker’s proposal here in Committing to Agency Independence. Here I want to focus on just one thought provoked by their Article. For anti-removal power to work vacancies need to have bite. Otherwise, the president will just leave the post open and the cloture threshold and so forth doesn’t matter. For this reason, Nielson and Walker note that Congress should make it difficult for the president to use recess appointments or acting officials to circumvent Senate confirmation. There are good reasons to think that vacancies are not ideal from the president’s perspective. All else being equal, vacancies tend to undermine agency performance: a leaderless agency or one with big holes in its org chart will be less effective. The agency will be disorganized, have low morale, lack advocates when budgets are allocated, and so on. A less effective agency means an increased risk of train derailments, bank collapses, and levee failures. The president is, according to David E. Lewis, “widely viewed as something like the CEO of the administrative state,” so voters often hold them accountable for that sort of thing. 

Vacancies might bite unequally, though. A president disinterested in regulation, or at war with the administrative state, might care a lot less about whether the trains run on time—or at all. It would be important to know if anti-removal power stacks the deck one way or another. At the very least that would limit its capacity to substitute for statutory removal protections. (Although Nielson and Walker question how effective those provisions are as it is.) If the president’s goal is deregulation, that is, policy change, then this kind of “spiteful neglect” has its limits. Modifying or eliminating administrative rules takes concerted effort—especially in the face of determined opposition by the rule’s current beneficiaries. Moreover, important vacancies mean that the president is sacrificing a key means they have of controlling the agency and setting its enforcement priorities. 

For these reasons, Nielson and Walker argue that Congress’ anti-removal power does not have a bias in favor of deregulatory administrations, i.e., Congress can use it to secure an agency’s independence regardless of whether the president favors more or less regulation. On this point I overall disagree, though I should add that Nielson and Walker suggest a whole anti-removal power “toolkit,” some pieces of which it could bring to bear against a deregulatory administration. Congress could impeach the president for removing an agency official, but that is something it can, in theory, do whenever the president does anything they don’t like. The reasons that anti-removal power might be skewed so that it constrains presidents more the more they favor an active administrative state are a bit subtle. 

Congress’ anti-removal power, at least the part of it I am discussing here, stems from Congress’ role in the appointments process. The Senate has, as Nielson and Walker put it, “plenary, unreviewable authority to reject a presidential nominee.” But the president’s own nomination power serves as a counterweight. A nomination is a lot like a take it or leave it offer. Perhaps the Senate could signal that it will not confirm someone with certain policy views, but I’m skeptical that would have much of an impact—it would be hard to tell whether that was a firm commitment or merely “cheap talk” designed to gain a bargaining advantage. In abstract terms, the Senate is basically faced with a binary choice—take whomever the president offers up or stick with the vacancy. What the president can get away with, how much they can exploit their power under the Appointments Clause, depends on how painful the vacancy is for both them and the Senate. 

Suppose the Senate cares a lot that the agency is active and competent. The same considerations sketched above about agency performance affect legislators to greater and lesser degrees. Their constituents might worry a lot about natural disasters, for instance. It is not unreasonable to imagine senators from, say, Louisiana and Florida are deeply invested in a competent Federal Emergency Management Agency (FEMA). Suppose the president, however, is disinterested in the agency—its performance matters little to them. As I explain, anti-removal power will do little to constrain the president in this case. The distress the vacancy causes the Senate, its bite, combined with the president’s own indifference towards the agency means that the president can extort policy concessions. The fact that the Senate cares more about a vigorous and competent agency robs anti-removal power of its force because they have more to lose from a vacant agency post in this scenario than the president does. More generally, we can say that the less the Senate can tolerate a continued vacancy the stronger the president’s hand in appointments and the less congressional anti-removal power (of this sort) matters. 

Congress’ anti-removal power is therefore generally more effective against a president who prizes agency action. It gives Congress less control over presidents that put little stock in agency. Its effects are skewed. This disinterested type of president is not quite the same as one that is deregulatory in the sense that they want to roll back agency rules. But there is bound to be some overlap: a president that wants to greatly limit an agency’s scope or power probably prefers, or will at least better tolerate, a less vigorous agency. 

The subtle bias in anti-removal power can be mitigated by combining it with institutional features that make the vacancy less costly. If the Senators know that the agency will still be competent if they reject the president’s nominee, then they are more free to do so. The fact that the vacancy has bite against the legislature as well as the executive—more bite in this scenario—weakens Congress’ position. Automatically adding staff or guaranteeing certain baseline levels of funding could make the vacancy more tolerable and thereby buttress anti-removal power, making it a better substitute for strict statutory removal protections. 

There are at least two surprising things about this suggestion. One is that budgets are among Congress’ most effective tools of agency control. So, Congress is sacrificing one mechanism of affecting agency action (budgets) to strength another (agency independence). It seems plausible to me that this could be set up to ultimately benefit congressional control, which in this instance means limiting the president’s power over the agency while leaving Congress sufficient means to exert its own influence. If Congress wants a certain level of competent agency activity, then it will want the agency to have commensurate staff, funding, etc. And if Congress really doesn’t want the agency to do anything, it can always limit its authority or even just get rid of it entirely. However, this all gets messy when we think how this would play out in reality; executive orders, vetoes, and a fractious legislative branch all complicate the picture. 

The other weird thing is that I began by saying that for anti-removal power to work vacancies needed to have bite. Yet these policy proposals take away the sting of vacancies. It’s not just that the Senate can live with the vacancy, it becomes more tolerable to the president, too. Perhaps the cost of “balancing” anti-removal power is robbing it of some of its force. 

All of this is an abstract, schematic treatment of conflict between two branches of government, three if you count the administrative agencies as a headless fourth one. This is overly optimistic, but at the end of the day it is possible that anti-removal power can be calibrated so that this all works out. Ensuring a floor for agency competence means that the fight over removal becomes a fight over policy. Ideally, the basic functions of the agency would not be affected by the vacancy or vacancies, although we might have a serious debate about what counts as such a basic function. So, the president could hold those functions hostage in order to control agency policy. The president might say to an official “implement this policy or else I’ll fire you,” the last bit usually being implicit in anything the president says, but an independent agency official can safely ignore this threat (this is something of an overstatement). With anti-removal power in place the president can fire the official but will have a hard time replacing them. The vacancy makes it harder for the president to direct the agency’s policy—they cannot exactly boss around an empty chair. Oversimplifying, they will be to some extent stuck with what the agency itself wants to do regardless of president’s preferences. And with guaranteed funding and so forth in place agency competence is less impacted: emergency payments are still going out, hazardous cargo is still being inspected, and other government tasks are being carried out. This means that the agency’s core functions are not being held hostage and limits the collateral damage from this interbranch fight.  

Nicholas Almendares is an Associate Professor at Indiana University Maurer School of Law.

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