Politics

Moving Towards Durable Policy in the Executive Branch

Introduction

Presidential transitions are a cumbersome and complex process, as presidents must make an inordinate number of bureaucratic appointments, closely review and revise the actions of their predecessors, and handle a host of other administrative and legislative tasks. While each of these processes are undoubtedly necessary for a new president, nearly all are being conducted expediently, without any regard for durability.

In both the executive branch confirmation process and the issuance of executive orders, administrations and legislators face a tradeoff between expedience and bipartisanship. That is, if a given administration wants to act swiftly, then they often fail to reach across the aisle. The opposite is also true, except administrations very seldom value bipartisanship more than accomplishing their own priorities. The choice between expedience and bipartisanship, however, is not exhaustive. Instead, durable, long-term reforms will necessarily strike the appropriate balance between expedience and bipartisanship, and will serve in the best interests of policymakers in the long run.

Administrations and legislators have instituted ill-advised reforms, both changing the rules of executive branch confirmations and adjusting styles of governance. Resultantly, the confirmation process has been made far too cumbersome and the issuance of executive orders far too hasty. These immediate solutions fail to account for the long-term interests of both administrations and legislators.

Presidential Appointments

One of the most glaring needs for reform in executive branch governance is centered around appointments and confirmations. Both the number of presidentially-appointed and Senate-confirmed positions has been steadily increasing, with Paul Light noting “every Congress and president since the 1960s has added Senate-confirmed positions.” Currently, there are approximately 4000 presidentially appointed positions, about 1250 of which require Senate confirmation. Unsurprisingly, many of these positions remain vacant throughout a president’s tenure.

One manner in which Senators have chosen immediate, expedient remedies over durable, bipartisan reform in the confirmation process is through the amendment of cloture rules. During a confirmation hearing, committee members are able to motion for cloture, consequently ending debate and proceeding to a vote. Traditionally, after the invocation of cloture, the committee is granted up to 30 hours to finalize their review of the nominee. In 2019, however, Republicans used the nuclear option to reduce the 30-hour threshold to only two, citing stall tactics from Senate Democrats. However, as Ballotpedia points out, both sides have been guilty of changing rules to push nominees through the confirmation process. Although these rule changes expedite the confirmation process, they also create long-run inefficiencies. Broadly speaking, constant rule changes fuel excessive partisanship, which then hinders the Senate’s effectiveness. Moreover, altering the rules sets a dangerous precedent.

Certainly, changing the rules of the confirmation process to benefit the majority will free up much needed time, but Senate leadership can be expected to change hands, and the current majority’s rules can be expected to be used against them. This is clearly evidenced by the fact that the nuclear option has been used against both parties in the past eight years, an unprecedented development fueled by excessive polarization.

On a more fundamental level, however, the Senate is not adequately fulfilling its constitutional responsibility of providing advice and consent on nominees. This is partly because of partisanship and partly because of the sheer number of appointments. According to data from 1987 to 2009, the entire process, ranging from presidential nomination to Senate confirmation, averaged 263 days for non-cabinet agency heads and 383 days for deputy non-cabinet agency heads. It is important to note that this “agonizingly slow” pace is also fueled by the executive’s inability to nominate appointees in a timely manner.

In sum, the confirmation process is broken, and rule changes that create short-term successes in the form of confirmations pose serious long-term threats. Legislators should instead seek solutions that are durable and bipartisan by both reducing the number of Senate-confirmed positions and establishing foundational rules for the confirmation process. 

By reducing the number of positions that require confirmation by the Senate, committees will be better equipped to fulfill their constitutional responsibility and will necessarily have more time for more important proceedings. Furthermore, the quality of appointees will likely not suffer by eliminating confirmation hearings, as nominees are already required to go through a robust series of screenings and background checks before assuming office. Secondly, by establishing rules for confirmations that are more insulated from the will of the majority, nominees can be better considered on the basis of their qualifications, not purely on their ideological leanings. These reforms will not address all issues caused by partisanship in the confirmation process, but they would undoubtedly tailor the hearing process and establish a framework that would promote bipartisanship moving forward.

Reviewing and Reversing Past Actions

Presidents’ opening days in office are increasingly spent signing EOs that reverse the actions of the previous administration. For example, of the 17 EOs that President Biden signed on his first day in office, 12 were reversals of Trump-era EOs. While reversals of previous policies ought to be expected from a new administration—as new presidents will almost always have different policy priorities than their predecessors—this process is not being conducted efficiently.

Although day-one EOs suggest that a new administration’s policy is being enacted as quickly as possible, actually instituting such orders takes far longer. A number of President Biden’s reversals, for example, simply direct agencies to review Trump-era policies and consider whether they align with the values of the new administration. Although agencies may not enforce the rules from previous administrations, the rulemaking process that accompanies such revocations can take years. Steven Balla and John Wright, for example, found that “Environmental Protection Agency rule makings average more than 1000 days in length.” These day-one presidential directives are being made to agencies without leadership, suggesting that it may take even longer for meaningful policy to be enacted.

Beyond technical complications, constant policy reversals lead to economic uncertainty and demonstrate blatant disregard for questions of efficacy. As noted in an AAF analysis by Dan Bosch, “If major policies are reversed each time the presidency changes parties, then the private sector has a diminished ability to make confident decisions on long-term investments, hurting the prospects of future economic growth.” Moreover, many reversals are done on almost strictly ideological grounds, failing to account for the efficacy of the previous policy. Take for example, EO 13891, a Trump-era order which required regulatory agencies to publish their guidance documents for the sake of transparency. Despite being heralded as a large step in promoting regulatory transparency—a bipartisan priority—the Biden administration reversed the order, along with five other orders concerning regulation. Certainly, some revocations will naturally occur as a result of a shift in presidential priorities, but changing policy for purely political purposes leads to ineffective and inefficient governance.

Presidential orders carried out in this haphazard manner, therefore, are neither truly expedient nor durable. EOs are being made to empty agencies, and reversing existing policies makes it more likely that future presidents will do the same. Executive actions should instead be far more deliberate, both accounting for agencies’ abilities to carry out the order and determining the efficacy of existing orders. Transition teams ought to prioritize the appointment and confirmation of agency leadership and the evaluation of existing policy over the hasty signing of EOs. Moreover, reversals of previous orders, particularly those impacting the economy, should be undertaken with great caution, as the unintended consequences of uncertainty may be profound.

Conclusion

The presidential transition process is ripe with inefficiencies—ranging from the time it takes to nominate and confirm executive branch nominees to implementing policy changes via the federal rulemaking process. Recently, legislators and administrations have been opting for expedient, short-term fixes to these issues, ultimately resulting in record levels of polarization and the development of inefficient practices. A shift in priorities for both the Senate and the executive branch could reduce the timely and costly transition process, allowing both entities to resume standard, good-faith governance.

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