AbstractWe analyse United States presidential appointee positions subject to Senate confirmation without a confirmed appointee in office. These "vacant" positions are byproducts of American constitutional design, shaped by the interplay of institutional politics. Using a novel dataset, we analyse appointee vacancies across executive branch departments and single-headed agencies from 1989 to 2013. We develop a theoretical model that uncovers the dynamics of vacancy onset and length. We then specify an empirical model and report results highlighting both position and principal–agent relations as critical to the politics of appointee vacancies. Conditional on high status positions reducing the frequency and duration of vacancies, we find important principal–agent considerations from a separation of powers perspective. Appointee positions in agencies ideologically divergent from the relevant Senate committee chair are vacant for less time than in ideologically proximal agencies. Importantly, this relationship strengthens as agency ideology diverges away from the chair and towards the chair's party extreme.
The Power of the President -- Naming the Leader -- Electing the President -- Who Can Run? -- Taking Over -- Presidential Payment -- The Oath of Office -- Commander in Chief -- Dealing with Other Countries -- Job Openings -- The State of the Union -- Can Presidents Be Punished? -- A Strong and Balanced Government
The organizational charts of the executive department do not accurately reflect the patterns of power and influence among the various agencies and subdivisions included in that department.
Recent years have seen much speculation over executive branch legal interpretation and internal decisionmaking, particularly in matters of national security and international law. Debate persists over how and why the executive arrives at particular understandings of its legal constraints, the extent to which the positions taken by one presidential administration may bind the next, and, indeed, the extent to which the President is constrained by law at all. Current scholarship focuses on rational, political, and structural arguments to explain executive actions and legal positioning, but it has yet to take account of the diverse ways in which legal questions arise for the executive branch, which have a significant effect on executive decisionmaking. This Article adds necessary texture to these debates by identifying and exploring the role of distinct triggers for legal interpretation - which this Article terms "interpretation catalysts" - in driving and shaping executive branch decisionmaking, particularly at the intersection of national security and international law. Interpretation catalysts impel the executive to consider, crystallize and potentially assert a legal interpretation of its obligations under domestic or international law on a particular matter, and they can both impede and facilitate change within the executive. Examples of interpretation catalysts include such diverse triggering events as decisions whether to use force against an armed group; lawsuits filed against the U.S. government; obligatory reports to human rights treaty bodies; and even the act of speechmaking. Each of these unique catalysts triggers a distinct process for legal decisionmaking within the executive, and is instrumental in framing the task at hand, shaping the process engaged to arrive at the substantive decision, establishing the relative influence of the actors who will decide the matter, and informing the contextual pressures and interests that may bear on the decision, and thus shapes the ultimate substantive position itself. These distinct mechanisms for decisionmaking each carry their own individual pressures and biases; thus in laying bare the interpretation catalysts phenomenon, this Article demonstrates potential avenues for actors inside and external to the executive branch to predict, to explain, and even to affect executive decisionmaking. This Article will explore the effect of interpretation catalysts on executive legal interpretation, and address some of the implications of this phenomenon for scholars, private actors, courts, and executive branch officials.
Despite all the controversy and expense that have surrounded state executive branch reorganization for more than sixty years, most of what we know is anecdotal, fragmentary, conceptually imprecise and untested. This study is designed to contribute conceptual and empirical order to the study of reorganization by analyzing data drawn from coding most of the state reorganizations of this century. Three central questions are addressed: (I) Why do state reorganizations occur? (2) Whatforms do reorganized executive branches take? (3) How are state executive reorganizations conducted? What strategies and tactics are applied with regard to adoption? We tested 40 hypotheses derived from the relationships of three competing and complementary perspectives on reorganization with three adoption strategies and four dimensions of executive reorganization.
Book review of Executive Legislation: Delegate Law Making By the Executive Branch by John Mark Keyes and published by Butterworths (Toronto), 1992. (308 pp.)
You may be forgiven if you associate Lou Fisher's name primarily with his robust defense of Congress's preeminent authority in national security and budgetary matters, or with the idea that courts are only one of three co-equal players in the constitutional dialogue that occurs among all of the branches, or with the related effort to disabuse scholars, the press, and the public of the profoundly incorrect notion that courts have "the last word" in constitutional interpretation. All of these themes are, indeed, key components of Fisher's vast body of scholarly work and public testimony, and they will be forever linked to him as their progenitor. Just as solidly grounded in impeccable research and unassailable logic is Fisher's work on executive power. It fits snugly within his Madisonian emphasis on a government of limited and shared powers, enforced through effective checks and balances, where each institution exercises its respective power while overseeing the other branches to ensure respect for constitutional boundaries.
After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question of how executive branch officials approach statutory interpretation. While scholars have contrasted agencies' interpretive practices from those of courts, they have not yet developed a theory of agency statutory interpretation. This Article develops a purposivist theory of agency statutory interpretation on the ground that regulatory statutes oblige agencies to implement the statutes they administer in that manner. Regulatory statutes not only grant powers but also impose a duty on agencies to carry out those powers in accordance with the principles or purposes the statutes establish. To comply with that duty, agencies must develop a conception of the purposes that the statute requires them to pursue and select a course of action that best carries forward those purposes within the means permitted by the statute; in short, agencies must take a purposivist approach. Moreover, this Article argues that agencies' institutional capacities—a familiar constellation of expertise, indirect political accountability, and ability to vet proposals before adopting them—make them ideally suited to carry out the task of purposive interpretation. Understanding agency interpretation as purposive by statutory design has significant implications for long-standing debates. First, it suggests that the focus of judicial review should be on the agency's specification of the statute's purposes and chosen means to implement those purposes, questions that are not squarely addressed by the Chevron doctrine. Second, by providing an account of the character of the agency's statutory duties, this analysis helps to distinguish appropriate from inappropriate political and presidential influences on the agency. Finally, investigating the debate between purposivism and textualism beyond the courts exposes a renewed ...
