From Volume 82, Number 5 (July 2009)
Federal agencies make an astounding number of policy decisions, engaging in more lawmaking and adjudication than Congress and the federal courts. These policy judgments range from the seemingly trivial, such as the size of holes in swiss cheese, to matters of life-and-death importance, such as how to limit power plant emissions of sulfur dioxide, nitrogen oxides, and mercury. According to the statute books, over 1100 Senate-confirmed presidential appointees are supposed to run these agencies and direct these policy decisions, comprising a small but critically important component of a federal workforce of over 2.5 million employees. Yet filling these top-level positions in the federal administrative state is cumbersome, inconsistent, and at times controversial. New administrations are often quick to select the cabinet but take much longer to staff the next few layers. Appointee tenure is short, leading to many new openings a year or two later. Then agency officials flee government service near the end of an administration. Vacancies, particularly if frequent and lengthy, may have detrimental consequences for the modern administrative state. They contribute to agency inaction, foster confusion among nonpolitical employees, and undermine agency legitimacy. More surprising is that vacancies also can have beneficial repercussions for agency performance.