Publication Date
2024
Abstract
In theory, the Constitution vests all, not "some" or "most," of the executive power in the President; the buck supposedly stops at the Resolute Desk. Yet current practice falls well short of this constitutional ideal. The conjunction of fixed terms of office, good cause removal limits, and partisan balance requirements for the heads of multi-member independent federal agencies, boards, and commissions can and does leave critically important federal agencies effectively unaccountable to the President. Such a state of affairs existed at the Federal Communications Commission (FCC) from January 20, 2021, until September 25, 2023-over half of President Biden's fouryear term of office-because the agency featured a 2-2 partisan deadlock that prevented it from undertaking any contested policy initiatives. Worse still, this deadlock arose because of defeated-President Donald Trump's appointment of a Republican FCC Commissioner in December 2020. Nathan Simington's FCC appointment to a term of office that extends to 2024, and conceivably until January 2027, made a mockery of the idea that elections have policy consequences and effectively hobbled the FCC under President Eiden until he succeeded in appointing a fifth Democratic Party-affiliated commissioner.
A serious accountability problem arises when an Executive Branch agency is not subject to meaningful presidential control and oversight-an accountability problem that also raises serious separation of powers issues. When a multi-member federal agency lacks a majority of members who support the incumbent presidential administration's regulatory policies and priorities, it becomes entirely implausible to posit that the President can actually supervise its activities ( and reprimand its failures to act as well). Worse still, such circumstances permit the President to have his cake and eat it too by blaming the agency's inaction on his lack of an effective ability to supervise the agency and its work. Even if such a state of affairs might be politically convenient for the President, it cannot be reconciled with a unitary executive model for the presidency. After all, the buck does not stop with the President if the President cannot exercise meaningful day-to-day control and supervision over an agency's work.
If we truly have a unitary executive, then the President must enjoy meaningful supervisory powers over, and hence accountability for, all major executive branch agencies that wield significant policymaking authority-and this authority should exist from day one of the President's term of office. Unfortunately, although the Federal Vacancies Reform Act (VRA) permits the President to name acting principal officers to cabinet departments and presidentially controlled agencies, the law expressly prohibits such acting appointments to any and all federal agencies that feature a multi-member head. This needs to change. Under the VRA, if the President may constitutionally appoint an acting Secretary of State or Attorney General who may exercise the vast, full powers of the office (despite lacking the Senate's advice and consent) no good reasons exist for denying the President an identical power with respect to multi-member federal agencies. Indeed, a single member of a multi-member agency cannot act alone for that agency-rendering such acting appointments more plausibly "inferior" in character-and thereby reducing any separation of powers concerns. Accordingly, Congress should reform the VRA to empower the President to make acting appointments to independent federal agencies-and thus render it impossible for the President to disclaim the ability "to take Care that the Laws be faithfully executed."
Recommended Citation
Ronald J. Krotoszynski Jr., Do Elections Really Have Consequences?: Presidential Indifference, Attenuated Accountability, and Policy Paralysis within the Administrative State, 58 Ga. L. Rev. 1015 (2024).