Support The Bulwark and subscribe today.
  Join Now

Presidents Have Been Circumventing Senate Confirmation for Years. Now We’re Seeing the Consequences.

Biden is just the latest president to use special envoys to sidestep the Senate’s advice and consent.
November 29, 2021
Presidents Have Been Circumventing Senate Confirmation for Years. Now We’re Seeing the Consequences.
US special climate envoy, John Kerry speaks to intervene during an informal stocktaking session at the COP26 Climate Change Conference in Glasgow on November 12, 2021. - A new draft COP26 statement called on nations to ease reliance on fossil fuels and boost funding to help vulnerable nations face the climate crisis as talks entered their final hours on Friday. (Photo by Ben Stansall / AFP / Getty)

Looking at the world and America’s experience with it over the past couple of decades, it’s hard to escape the conclusion that the United States, known not so long ago for organizational ability, being pragmatic, and a can-do spirit, has become rather bumbling if not downright inept. The war in Afghanistan, the rollout of the AUKUS partnership, the intervention in Libya, and the constant pendular swings in American policy toward Iran and mushy inconsistency toward Russia are only recent examples. The causes of the decline in American competence are manifold, but one overlooked aspect might be the seemingly mundane issue of how we appoint our foreign policy personnel. As is so often said in Washington, personnel is policy—and both are a mess.

The Constitution provides very few guidelines for how to staff the foreign policy positions of the government. It lists no cabinet members, but merely refers to “Heads of Departments.” The current system dates to the National Security Act of 1947, which created the Department of the Air Force and merged it together with the Departments of War (renamed Department of the Army) and the Navy to form the Department of Defense. It also created the Central Intelligence Agency, as well as the National Security Council within the White House. The law was enacted at the beginning of the Cold War with the Cold War in mind. It has been amended numerous times to meet new challenges, but it might be time to ask whether it needs a thorough review, or even an overhaul.

One indicator that the law is not working as it should is the proliferation of special envoys, not confirmed by the Senate, usually housed in the State Department. Special envoys, most of whom report directly to the secretary, have a specific portfolio—a country, cause, or function—and they operate out of the secretary’s suite on the seventh floor of the State Department headquarters. There is some wisdom in the idea of establishing extraordinary offices for unusual circumstances—especially those for which no permanent, congressionally mandated office is clearly responsible. In the 1980s, Secretary of State George Shultz appointed Philip Habib to manage the Lebanon crisis. President Ronald Reagan appointed Paul Nitze to be his chief negotiator for the arms control negotiations with the Soviet Union. Neither of these positions required a permanent office, and both offices dissolved when the issues fell off the agenda or were resolved.

But the envoys have proliferated, with 30 currently serving and 26 vacant positions. The portfolios they cover have also expanded beyond the discrete and temporary issues of yesteryear, encompassing everything from LGBT rights and global criminal justice to nuclear nonproliferation. Some special envoys, like those for North Korea, Venezuela, and Syria are the point-people in formulating strategy and implementing the policy of the president regarding the crises caused by those regimes. Such temporary offices make sense in a time of crisis, as does the dissolution of those offices once the crisis either fades or becomes the new status quo. Others, most notably the series of special envoys for Israeli-Palestinian issues, duplicate (read: confuse) the efforts of other parts of the State Department, which already has a Bureau of Near Eastern Affairs led by a Senate-confirmed assistant secretary. In these cases, there is no temporary crisis in need of immediate attention, but rather a status quo of the kind normal diplomats deal with every day. In the same vein, issues like hatred for Jews or the Arctic region aren’t novel or temporary, and, if they require separate offices, Congress should create them.

Making these extraordinary positions routine can have uncomfortable consequences. In January, President Joe Biden appointed former Secretary of State John Kerry as the inaugural special envoy for climate, even though there are under and assistant secretaries with portfolios focused on environmental and energy policy. Kerry’s office is located in the Secretary’s Suite, right down the hall from the current secretary—and Kerry’s former deputy—Antony Blinken. Kerry is also a member of the National Security Council and directly reports to the president, hence bypassing Blinken. This would be a slightly awkward situation in any office, but in the world of diplomacy, it can create real confusion. When Blinken emphasizes issues of democracy and human rights, especially in America’s relations with Russia and China, and Kerry seems eager to reach a climate deal at any cost, who really speaks for the president and the American government, if either of them? At a time when U.S. personnel, allies, and adversaries are all confused about the president’s preferences and the government’s priorities, it’s easy to imagine a scenario in which chaos and miscalculations cause disaster.

One argument for the multiplication of these unconfirmed positions is that polarized partisanship has broken the Senate confirmation procedure on which the normal posts rely. In the past, most confirmations would cruise through the Senate without major obstacles. Presidents would generally nominate competent personnel, and the Senate would generally defer to the president on his preferences. In contrast, it took over a year for former Assistant Secretary of State for Near Eastern Affairs David Schenker to be confirmed during the Trump administration due to reasons that had nothing to do with the nominee. These delays create twin injustices: The nominees pending confirmation can’t do the jobs for which they’re nominated, which deprives the government of their services, while at the same time, they can’t continue their private work, including scholarly writing or speaking, depriving the country of their contributions and the nominees of their vocations.

The argument for special envoys holds that just filling the cabinet takes months nowadays, and the urgency of national security matters can’t wait for the Senate to sort itself out. The Biden administration additionally suffered from the previous administration’s childish behavior during the transition, which contributed to the continuing vacancies at many subcabinet positions.

But the arguments against special envoys and for Senate-confirmed officers are stronger. When Senators vote to confirm a nominee, they make themselves partially accountable for what that nominee does in office. Not so with those on whom the Senate never votes. The assurances given to senators by presidential nominees in their hearings somewhat limits their freedom of maneuver, synchronizing them with Congress and creating some consistency in U.S. foreign policy both between branches and within the administration.

The Kerry problem is a good example of inconsistency. There was no Senate hearing for his appointment because there was no requirement for a Senate vote, so nobody ever asked him to elaborate on his possible conflicts of interests regarding his investments in green energy, the tensions between climate change diplomacy and human rights concerns, and the need to balance cooperation with China on climate change with the need to tame China’s assaults on the world order. Had he been forced to face a hearing, he might not now be causing friction within the administration.

Of course, Kerry is not the only special envoy in the administration. Iran, North Korea, Belarus, and Central America portfolios are all held by unconfirmed officials, some of whom would have likely not survived a Senate vote. In other words, the officials coordinating almost every pressing issue at the State Department have no congressional buy-in. China is the obvious exception, but even then, the capable and widely respected Kurt Campbell, the White House’s non-Senate-confirmed Indo-Pacific policy czar, is heavily involved with the implementation of policy—which could also partially explain why the rollout was so messy. It’s worth adding that implementing policy out of the White House and circumventing the departments has been the root cause of failures, disasters, and scandals in the past, including the Christmas bombing, the botched rescue of hostages in Iran, the Iran-Contra affair, and, most recently, the quid pro quo request to Ukraine.

Bad processes have sometimes led to good outcomes, too. And good processes have led to bad outcomes. But more often than not, bad processes lead to bad outcomes, and the process is breaking down with consecutive administrations circumventing the law and Congress.

It’s worth asking why. The world now would be unrecognizable to those who wrote the National Security Act three-quarters of a century ago. Ditto the United States and its domestic politics. Maybe the system needs an overhaul, or maybe it just needs some adjustments, but it’s clear that it can’t go on as it is, being stretched further and further every year from the letter of the law and from the nomination-confirmation requirement of the Constitution.

Maybe there should be fewer special envoys. Maybe they should have statutory limits on their tenures in office. Maybe they should be forced by statute to answer to Senate-confirmed officials. Congress should investigate all of these possibilities and legislate accordingly.

In 1943, Walter Lippmann warned, “for want of a settled foreign policy, we shall act not upon reflection and choice but under the impulse of accidents and the impact of force.” For want of clear organization, our fate will be the same.

Shay Khatiri

Shay Khatiri studied Strategic Studies at the Johns Hopkins University School of Advanced International Studies. He’s an immigrant from Iran and writes the Substack newsletter The Russia-Iran File.