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The Senate Is a Symptom

The appointments process is breaking down because of much deeper constitutional problems.
March 15, 2022
The Senate Is a Symptom
UNITED STATES - DECEMBER 7: Sunset light illuminates clouds behind the U.S. Capitol dome on Tuesday, Dec. 7, 2021. (Photo by Bill Clark/CQ-Roll Call, Inc via Getty Images)

Sometimes the symptoms of an institution’s decline are obvious. Take Congress: Created to be the Constitution’s first branch, it now serves mainly as an echo of presidential politics. The difference between Congress serving as the government’s center of gravity and Congress creating a governance vacuum filled by regulators and others is all too obvious.

But other forms of institutional decline have subtler symptoms. Take what the founding generation called “administration.” By some measures, administration has never been more ascendant; we are governed largely by the administrative state, in lieu of Congress. Presidential elections seem nothing less than regime changes, with each new president announcing new policies of his own, to be administered by his agencies. But this administrative state, as we know it, is a profound devolution from the administration that our Constitution was created to achieve.

The founding generation knew the dangers of lethargic administration all too well, under the Articles of Confederation. So their new Constitution would have “energy in the executive,” as Alexander Hamilton famously put it, not just to protect us from foreign attack, but also to ensure “steady administration of the laws” at home.

For Hamilton and others, the key was not “energy” for its own sake, but energy for the sake of steady administration of the Constitution and Congress’s laws. Moreover, the president’s energy would be stabilized by the Senate’s own role in granting or withholding its “advice and consent” for the appointment of senior administration leaders.

Such a mix of energy and stability was needed to produce the steady administration that could win Americans’ confidence in their national government, and it would help to provide the rule of law that is indispensable for planning lives and livelihoods. The alternative, as Hamilton saw, would be “a disgraceful and ruinous mutability in the administration of the government.”

Yet that is where we find ourselves today. Instead of Congress passing laws written clearly enough to be executed with energy and stability, it passes vague or convoluted ones that take months or years for a president’s administration to clarify through the making of regulations—which then can be stopped swiftly by a single judge’s injunction, or reversed promptly by the next administration’s inauguration.

Meanwhile, by delegating vast powers to regulatory agencies, Congress escalates the stakes of agency appointments. Suddenly the nomination of, say, a new member of the Federal Trade Commission, or a new member of the Federal Reserve Board, becomes a Senate referendum on the nominee’s plan to radically change federal regulatory policy.

We already have seen the growth in Supreme Court power transform judicial confirmations. Now, in an era of agencies’ assertions of unprecedented or transformative powers, we see the Senate confirmation of regulatory officers starting to look like judicial confirmations.

The crisis in Senate confirmations was the subject of a March 3 hearing before the Senate Committee on Homeland Security and Government Reform. (I was one of the hearing’s witnesses; you can read my written testimony here.) Twelve hundred leadership positions in the federal agencies need the Senate’s confirmation to a presidential appointment, often in the first year of a new presidency. But the Senate is confirming them ever more slowly: It confirmed only 41 percent of President Biden’s first-year nominations, and only 57 percent of President Trump’s, according to the Partnership for Public Service. (Two decades ago, in President Bush’s first year, it confirmed 75 percent of his nominations.)

Meanwhile, presidents are becoming much more comfortable filling vacant positions with “acting” officers for long periods of time, avoiding the Senate confirmation process.

This degrades administration, making agencies’ leadership less stable, and also less weighty in the eyes of bureaucrats and presidents alike. Senate-confirmed leadership provides a crucial counterweight to both a president’s worst instincts and a bureaucracy’s worst tendencies. A parade of “acting” appointees, short-term tourists atop the administrative state, can provide neither.

Some observers urge Congress to solve the Senate-confirmation problem by requiring fewer Senate confirmations. That would be a reasonable reform, within limits. The Constitution allows Congress to provide for the appointment of “inferior” administration offices by the president alone or by the heads of the agencies; much lower offices might even be transferred outright to civil service. The Senate’s responsibility for granting or withholding confirmation should be reserved for the most important offices, which need real Senate scrutiny. If the sheer number of offices impedes the Senate’s review of the most important ones, then it’s time for prudent adjustments.

But when we focus narrowly on adjusting the confirmation process, we miss the real problem. Presidential appointments and Senate confirmations have become difficult because the offices themselves have become far too significant. By delegating practically open-ended power and discretion to agencies, the Senate’s review of appointments has become Congress’s most significant task as lawmakers—or, more accurately, as the ones who approve the president’s choice of lawmakers.

Shifting some appointments out of the Senate’s review would make it easier to staff administrations, but fights over agency power and discretion will be exacerbated elsewhere: in annual fiscal-cliff showdowns; in the courts’ review of agency actions; and in efforts to reform (or rescind) civil-service protections. Simply de-emphasizing the Senate’s role in appointments will not cure the underlying problem of agency power and discretion. Real reform will require a genuine whole-of-government approach: by Congress to write clearer laws, by courts to clarify laws already on the books, and by presidents and their agencies to assist in both of those tasks.

Our Constitution’s “true test,” Hamilton wrote, is “its aptitude and tendency to produce a good administration.” We have been failing that test for too long. And signs of our failure are becoming impossible to ignore.

Adam J. White

Adam J. White is a senior fellow at the American Enterprise Institute and co-director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State.