Sunday, July 3, 2011
The Senate voted 79-20 in favor of legislation last week that would streamline the appointment process for 170 of the 1,200 executive branch positions that currently require Senate confirmation. The measure also would establish a Working Group on Streamlining Paperwork for Executive Nominations, which would, well, make recommendations for how to streamline paperwork for executive nominations. We first reported on the legislation, S. 679, here.
The bill passed overwhelmingly in the Senate, but still faced vocal opposition. We reported on David Addington's objections here; he argued that the measure shifts power from the Senate to the President and curtails one of Congress's key oversight tools. Other opponents took a different tack, represented by a Washington Examiner editorial, and argued that the bill only addresses a symptom of a ballooning federal bureaucracy--a larger problem that goes unaddressed by the legislation.
On the other side, Brookings Institute scholars E.J. Dionne, Jr., and William Galston took a look at the politics of the problem--and possible solutions--in their December 2010 report, A Half-Empty Government Can't Govern: Why Everyone Wants to Fix the Appointments Process, Why it Never Happens, and How We Can Get It Done.
As we wrote here, the positions exempted from Senate confirmation under the legislation are "inferior officers" (or even in some cases presidential advisors or employees). The Appointments Clause says that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Article II, Section 2. The inferior officers covered in S. 679 were tagged for Senate confirmation by law, but not by the Constitution; and so S. 679 only removed them from the constitutionally unnecessary, but practically burdensome, requirement of Senate confirmation in order to enhance the efficiency of the appointment process overall. (The Constitution contains no formal requirements for appointment of presidential advisors or employees that are neither officers nor inferior officers.) In other words, the bill only takes a set of positions that never needed Senate confirmation out of the class of positions that do need it.
The bill still needs House approval, but it's not clear how it will be received there.