Order Code RL33886
Statutory Qualifications for
Executive Branch Positions
February 20, 2007
Henry B. Hogue
Analyst in American National Government
Government and Finance Division
Statutory Qualifications for Executive Branch Positions
Summary
In the aftermath of Hurricane Katrina, some Members of Congress and others
questioned the competence of leadership at the Federal Emergency Management
Agency (FEMA). After investigating the federal response to the hurricane, the
Senate Committee on Homeland Security and Governmental Affairs concluded that
the agency’s leader had “lacked the leadership skills that were needed for his critical
position.” In response, the Post-Katrina Emergency Management Reform Act of
2006 (P.L. 109-295, 120 Stat. 1394) stipulated that the FEMA Administrator, among
other top agency leaders, must meet certain qualifications. President George W.
Bush’s signing statement for this act seemingly challenged the constitutionality of
these requirements, and it stated that the “executive branch shall construe [the
applicable provision] in a manner consistent with the Appointments Clause of the
Constitution.” Three Members of Congress then urged the President to “reconsider
[his] position and join [them] in calling for strong standards and the highest
professional qualifications for the leadership of FEMA and for open dialogue
between the executive and legislative branches on issues of such significant
importance to out nation’s safety and security.”
These events reflect broader interbranch differences over congressional
authority to establish statutory qualifications. The preponderance of evidence and
historical practice suggests that Congress generally has the constitutional authority
to set such qualifications. The boundaries of this authority have not been
conclusively drawn, however, and the executive branch, in recent years, has asserted
that congressional authority in this area is more limited than congressional practice
would suggest. Statutory qualification requirements might continue to be an area of
conflict between Congress and the President. Inasmuch as these provisions are not
self-enforcing, their success as a means of assuring competent leadership of the
federal government will depend upon the two branches’ adherence to them during the
selection and confirmation processes.
In practice, it has not been unusual for Congress to mandate that appointees to
certain positions meet specified requirements. Some statutory qualification
provisions, like those for the FEMA Administrator, require that appointees have
certain experience, skills, or educational backgrounds that are associated with
competence. Other qualification provisions address a variety of characteristics, such
as citizenship status, residency, or, for the purpose of maintaining political balance
on regulatory boards, political party affiliation. Congress has used such statutory
provisions selectively; most executive branch positions do not have them. This
report provides background on the constitutional appointments framework, discusses
Congress’s constitutional authority to set qualifications, discusses congressional
practices in this area, and provides related analysis and options. The report includes
two tables with examples of existing positions with qualification requirements.
This report will be updated in response to policy developments related to
statutory qualifications.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Constitutional Appointments Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Congressional Authority to Establish Qualifications for Leadership Positions . . . 4
Executive Branch Views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Signing Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Department of Justice Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statutory Qualifications in Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Qualification Modifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Qualification Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Qualifications for Members of Collegial Bodies . . . . . . . . . . . . . . . . . . . . . 13
Statutory Qualifications: Analysis and Options . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Advantages and Disadvantages of Statutory Qualifications . . . . . . . . . . . . 15
Options for Congressional Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Incremental Establishment of Qualifications . . . . . . . . . . . . . . . . . . . . 18
Agency-wide Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Government-wide Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Senate Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Appendix: Examples of Statutory Qualification Requirements . . . . . . . . . . . . . . 22
List of Tables
Table 1. Examples of Department and Agency Leadership Positions
with Statutory Qualification Requirements . . . . . . . . . . . . . . . . . . . . . . . . . 22
Table 2. Examples of Positions on Independent Collegial Bodies
with Statutory Qualification Requirements . . . . . . . . . . . . . . . . . . . . . . . . . 30
Statutory Qualifications for Executive
Branch Positions
Introduction
In the aftermath of Hurricane Katrina, some Members of Congress and others
questioned the competence of leadership at the Federal Emergency Management
Agency (FEMA). After investigating the federal response to the hurricane, the
Senate Committee on Homeland Security and Governmental Affairs concluded,
among other findings, that the agency’s leader had “lacked the leadership skills that
were needed for his critical position.”1 The committee went on to recommend that
future leaders of national emergency management efforts “have significant
experience in crisis management, in addition to substantial management and
leadership experience, whether in the public, private or nonprofit sector.”2
At the time of Hurricane Katrina, appointees to the top FEMA leadership
position were not required, in statute, to meet any qualifications.3 This has been
changed by the Post-Katrina Emergency Management Reform Act of 2006,4 under
which the FEMA Administrator, among other top agency leaders, is required to meet
certain qualifications. The act provides the following:
The Administrator shall be appointed from among individuals who have — (A)
a demonstrated ability in and knowledge of emergency management and
homeland security; and (B) not less than 5 years of executive leadership and
management experience in the public or private sector.5
The Bush Administration has seemingly challenged the legitimacy of this
provision in the President’s signing statement for the act. It reads, in part, as follows:
Section 503(c) of the Homeland Security Act of 2002, as amended by section 611
of the Act, provides for the appointment and certain duties of the Administrator
1 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs,
Hurricane Katrina: A Nation Still Unprepared, 109th Cong., 2nd sess. (Washington: GPO,
2006), unpaginated chapter, “Conclusions and Findings.”
2 Ibid., p. Recommendations - 4.
3 The head of FEMA at that time was the Under Secretary for Emergency Preparedness and
Response. Appointments to this position were to be made by the President, by and with the
advice and consent of the Senate (P.L. 107-296, § 103(a)).
4 P.L. 109-295, 120 Stat. 1394.
5 Ibid., § 611(10), as it amends § 503(c) of the Homeland Security Act of 2002; 120 Stat.
1397.
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of the Federal Emergency Management Agency. Section 503(c)(2) vests in the
President authority to appoint the Administrator, by and with the advice and
consent of the Senate, but purports to limit the qualifications of the pool of
persons from whom the President may select the appointee in a manner that rules
out a large portion of those persons best qualified by experience and knowledge
to fill the office. The executive branch shall construe section 503(c)(2) in a
manner consistent with the Appointments Clause of the Constitution.6
The President appears to take issue with the extent to which the qualifications might
limit the pool of potential nominees to the position. The statement does not make
clear whether the Administration sees Section 503(c)(2) as being in conflict with the
Appointments Clause and, if so, in what way. The final sentence in the excerpt
suggests that, to the degree that Section 503(c)(2) is seen to be in conflict with the
Administration’s reading of the Appointments Clause, the President might elect not
to abide by the provision. In response to the signing statement, three Members of
Congress urged the President to “reconsider [his] position and join [them] in calling
for strong standards and the highest professional qualifications for the leadership of
FEMA and for open dialogue between the executive and legislative branches on
issues of such significant importance to out nation’s safety and security.”7
Both Congress and the President have an interest in assuring that the federal
government is led by appointees who have the necessary qualifications to
successfully and faithfully implement the law. As discussed later in this report, the
preponderance of evidence and historical practices suggest that Congress has the
constitutional authority to set such qualifications — as long as those qualifications
do not amount to a de facto legislative designation. In many instances, Congress has
mandated that appointees to leadership positions meet specified requirements. Some
statutory qualification provisions, like those for the FEMA Administrator, require
that appointees have certain experience, skills, or educational backgrounds that are
associated with competence. Other qualification provisions address a variety of
characteristics, such as citizenship status, residency, or, for the purpose of
maintaining political balance on regulatory boards, political party affiliation.
Congress has, however, used qualification provisions selectively; most executive
branch positions do not have statutory qualifications. This report provides
background on the constitutional appointments framework, discusses Congress’s
constitutional authority to set qualifications, discusses congressional practices in this
area, and discusses related options for congressional consideration. Examples of
positions with statutory requirements or restrictions are provided in two tables in the
appendix.
6 U.S. President (G.W. Bush), “Statement on Signing the Department of Homeland Security
Appropriations Act, 2007,” Weekly Compilation of Presidential Documents, vol. 42, Oct.
4, 2006, pp. 1742-1743.
7 U.S. Congress, letter from Senators Mary L. Landrieu, Susan M. Collins, and Joseph I.
Lieberman to President George W. Bush, Oct. 12, 2006. (Letter obtained from CQ Top
Docs at CQ.com.)
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The Constitutional Appointments Framework
The Constitution charges Congress with the responsibility of determining how
most leaders of the federal government will be appointed. The framework for this
process is based in Article II:
[The President] shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges
of the supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law: but the 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.8
This clause sets presidential appointment by and with the advice and consent of the
Senate (hereafter referred to as PAS positions) as the default process for filling such
positions.9 But only certain officers of the United States must be appointed by that
method. At the discretion of Congress, “inferior” officers may be appointed either
under the default process or by the President alone, the courts, or agency heads. The
Supreme Court has interpreted the phrase “Officers of the United States” to mean
“any appointee exercising significant authority pursuant to the laws of the United
States.”10 The Supreme Court has provided guidance that could assist Congress in
identifying which officers may be appointed through one of the non-PAS processes.
In Edmond v. United States,11 the court reasoned that
[g]enerally speaking, the term “inferior officer” connotes a relationship with
some higher ranking officer or officers below the President: Whether one is an
“inferior officer” depends on whether he has a superior. It is not enough that
other officers may be identified who formally maintain a higher rank, or possess
responsibilities of a greater magnitude. If that were the intention, the
Constitution might have used the phrase “lesser officer.” Rather, in the context
of a Clause designed to preserve political accountability relative to important
Government assignments, we think it evident that “inferior officers” are officers
whose work is directed and supervised at some level by others who were
appointed by Presidential nomination with the advice and consent of the Senate.12
This suggests that, aside from officers in positions that the Constitution specifically
identifies, such as ambassadors and “Judges of the supreme Court,” the Constitution
requires only one layer of advice and consent positions in the hierarchy of each
agency. It indicates that appointees with PAS-appointed supervisors are inferior
8 Art. II, Sec. 2, cl. 2.
9 In a 1976 opinion, the Comptroller General reasoned that this provision indicates that all
officers of the United States are to be PAS positions unless Congress affirmatively delegates
that authority (Comp. Gen. Dec. No. B-183012, 56 Comp. Gen. 137).
10 Buckley v. Valeo, 424 U.S. 1, 126 (1976).
11 Edmond v. United States, 520 U.S. 651 (1997).
12 Ibid., pp. 662-663.
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officers, and that Congress may, therefore, provide for appointment by one of the
other specified authorities.13
In the case of executive branch departments and agencies outside the White
House, Congress usually elects either to use the PAS process or to delegate authority
to the agency head. This enables the Senate to play a role in appointments to the
leadership positions where it is most interested in maintaining influence over
programs and policies. In some cases, Senators may influence nominee selection.
They also may obtain commitments to carry out implementation of laws in certain
ways during confirmation hearings, and they are likely to exact promises to testify
before committees for oversight purposes.
Congressional Authority to Establish
Qualifications for Leadership Positions
The power of Congress to specify qualifications for a particular office is
generally understood to be incident to its constitutional authority to establish the
office. Historically, it has established qualifications many times; Justice Louis
Brandeis, in a dissenting opinion in Myers v. United States, documented the
longstanding nature of this practice. He observed that “a multitude of laws have been
enacted which limit the President’s power to make nominations,” and added that
“[s]uch restriction upon the power to nominate has been exercised by Congress
continuously since the foundation of the Government.”14 Justice Brandeis noted that
Congress has, from time to time, restricted the President’s selection by the
requirement of citizenship. It has limited the power of nomination by providing
that the office may be held only by a resident of the United States; of a State; of
a particular State; of a particular district; of a particular territory; of the District
of Columbia; of a particular foreign country. It has limited the power of
nomination further by prescribing specific professional attainments, of
occupational experience. It has, in other cases, prescribed the test of
examinations. It has imposed the requirement of age; of sex; of race; of property;
and of habitual temperance in the use of intoxicating liquors. Congress has
imposed like restrictions on the power of nomination by requiring political
representation; or that the selection be made on a nonpartisan basis. It has
required in some cases, that the representation be industrial; in others, that it be
geographic. It has at times required that the President’s nominees be taken from,
or include representatives from, particular branches or departments of the
Government. By still other statutes, Congress has confined the President’s
selection to a small number of persons to be named by others.15
13 Although the Senate plays an important advice and consent role for many presidential
appointments, it is noteworthy that officers of the United States may not be appointed by
Members of Congress.
14 Myers v. United States, 272 U.S. 52, 265 (1926) (dissenting opinion).
15 Myers v. United States, 265-274. Footnotes omitted.
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When specifying qualifications, Congress has, at times, come close to specifying
the individual who must be appointed. In 1916, for example, Congress enacted a law
providing that
of the vacancies created in the Judge Advocate’s Department by this act, one
such vacancy, not below the rank of Major, shall be filled by the appointment of
a person from civil life, not less than forty-five nor more than fifty years of age,
who shall have been for ten years a Judge of the Supreme Court of the Philippine
Islands, shall have served for two years as a Captain in the regular or volunteer
army, and shall be proficient in the Spanish language and laws.16
These requirements would likely have limited the President’s potential choices
to one or two people, a limitation on the President’s appointment power that might
not withstand judicial scrutiny. Although Congress enjoys broad discretion in
establishing qualifications, its constitutional power is probably not without limits.
In its majority opinion in Myers, the Court noted that “the legislative power”
comprehends the authority “to prescribe qualifications for office, or reasonable
classification for promotion, ... provided of course that these qualifications do not so
limit selection and so trench upon executive choice as to be in effect legislative
designation.”17
Executive Branch Views
Although the preponderance of evidence and historical practice supports the
understanding that Congress has broad authority in this area, this view is not
universally held. Executive branch views, as articulated through presidential signing
statements and opinions of the Department of Justice, have ranged from the assertion
that Congress has no such authority to an acknowledgment of some such authority
that lacks clear boundaries.
Signing Statements. The view that Congress may have authority to establish
only limited qualifications was evident in President George W. Bush’s signing
statement for the Post-Katrina Emergency Management Reform Act of 2006,
discussed in the introduction to this report, as well as other presidential signing
statements. President Bush’s 2006 signing statement for the Postal Accountability
and Enhancement Act, for example, raised similar issues.
The executive branch shall construe subsections 202(a) and 502(a) of title 39, as
enacted by subsections 501(a) and 601(a) of the Act, which purport to limit the
qualifications of the pool of persons from whom the President may select
appointees in a manner that rules out a large portion of those persons best
qualified by experience and knowledge to fill the positions, in a manner
consistent with the Appointments Clause of the Constitution.18
16 39 Stat. 169
17 Myers v. United States, 128 (Opinion of the Court).
18 U.S. President (G.W. Bush), “Statement on Signing the Postal Accountability and
Enhancement Act,” Weekly Compilation of Presidential Documents, vol. 42, Dec. 20, 2006,
(continued...)
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Previous Presidents, in other signing statements, also raised constitutional
objections to qualification provisions. In a 1992 signing statement for legislation
establishing the Morris K. Udall Scholarship and Excellence in National
Environmental Policy Foundation, for example, President George H.W. Bush stated
that the bill he was signing into law “purport[ed] to set qualifications, including
requirements as to political party affiliation, for the trustees who will administer the
foundation created by the bill.” In his estimation, under the appointments clause of
the Constitution, “congressional participation in such appointments may be exercised
only through the Senate’s advice and consent with respect to Presidential nominees.”
He stated that he would, therefore, “treat these provisions as precatory.”19
A signing statement by President William J. Clinton raised specific, rather than
blanket, objections to a qualifications provision, while agreeing to abide by its
requirements:
[S]ection 21(b) of the Act would forbid the appointment as United States Trade
Representative or Deputy United States Trade Representative, of anyone who
had ever ‘’directly represented, aided, or advised a foreign [government or
political party] ... in any trade negotiation, or trade dispute with the United
States.’‘ The Congress may not, of course, impose broad restrictions on the
President’s constitutional prerogative to nominate persons of his choosing to the
highest executive branch positions, and this is especially so in the area of foreign
relations. However, because as a policy matter I agree with the goal of ensuring
the undivided loyalty of our representatives in trade negotiations, I intend, as a
matter of practice, to act in accordance with this provision.20
Department of Justice Opinions. Historically, opinions of Attorneys
General recognized a constitutional authority for Congress to set qualifications. In
1871, for example, Attorney General Amos T. Akerman offered the following
opinion:
The argument has been made that the unquestioned right of Congress to create
offices implies a right to prescribe qualifications for them. This is admitted. But
this right to prescribe qualifications is limited by the necessity of leaving scope
for the judgment and will of the person or body in whom the Constitution vests
the power of appointment. The parts of the Constitution which confer this power
are as valid as those parts from which Congress derives the power to create
offices, and one part should not be sacrificed to the other. An office cannot be
18 (...continued)
p. 2196.
19 U.S. President (G.H.W. Bush), “Statement on Signing the Morris K. Udall Scholarship
and Excellence in National Environmental and Native American Public Policy Act,” Weekly
Compilation of Presidential Documents, vol. 28, Mar. 19, 1992, p. 507. Senate Majority
Leader George J. Mitchell later rebutted, on the Senate floor, the signing statement’s
reasoning (Sen. George J. Mitchell, “The Udall Foundation Act,” remarks in the Senate,
Congressional Record, vol. 138, Apr. 9, 1992, pp. 8689-8691).
20 U.S. President (Clinton), “Statement on Signing the Lobbying Disclosure Act of 1995,”
Weekly Compilation of Presidential Documents, vol. 31, Dec.19, 1995, pp. 2205-2206. As
noted later in this report, Congress waived the requirement in question for Clinton’s
appointment of Charlene Barshevsky to the position.
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created except under the condition that it shall be filled according to the
constitutional rule.... Though the appointing power alone can designate an
individual for an office, either Congress, by direct legislation, or the President,
by authority derived from Congress, can prescribe qualifications, and require that
the designation shall be made out of a class of persons ascertained by proper tests
to have those qualifications; ... It has been argued that a right in Congress to limit
in the least the field of selection, implies a right to carry on the contracting
process to the designation of a particular individual. But I do not think this a fair
conclusion. Congress could require that officers shall be of American citizenship
or of a certain age, that judges should be of the legal profession and of a certain
standing in the profession, and still leave room to the appointing power for the
exercise of its own judgment and will; and I am not prepared to affirm that to go
further, and require that the selection shall be made from persons found by an
examining board to be qualified in such particulars as diligence, scholarship,
integrity, good manners, and attachment to the Government, would impose an
unconstitutional limitation on the appointing power. It would still have a
reasonable scope for its own judgment and will. But it may be asked, at what
point must the contracting process stop? I confess my inability to answer. But the
difficulty of drawing a line between such limitations as are, and such as are not,
allowed by the Constitution, is no proof that both classes do not exist.21
A 1979 opinion of the Justice Department’s Office of Legal Counsel (OLC) was
seemingly consistent with the earlier view, stating that
Congress has power to prescribe qualifications for office; but the power of
appointment belongs to the President, and it cannot be usurped or abridged by
Congress.... There is no settled constitutional rule that determines how these two
powers — the power of Congress to prescribe qualifications and the power of the
President to appoint — are to be reconciled, but it seems clear that there must be
some constitutionally prescribed balance. The balance may shift depending on
the nature of the office in question. For example, Congress has required that the
President appoint members of both parties to certain kinds of boards and
commissions; there is serious question whether Congress could constitutionally
require the President to follow the same practice with respect to his Cabinet.22
In 1989, however, the Department of Justice articulated a different point of
view. The Office of Legal Counsel issued a memorandum entitled “Common
Legislative Encroachments on Executive Branch Constitutional Authority,” which
stated, in part, the following:
Congress ... imposes impermissible qualifications requirements on principal
officers. For instance, Congress will require that a fixed number of members of
certain commissions be from a particular political party. These requirements ...
violate the Appointments Clause. The only congressional check that the
Constitution places on the President’s power to appoint “principal officers” is the
advice and consent of the Senate.23
21 13 Op. A.G. 516, 520-521, 524-525 (1871).
22 3 Op. O.L.C. 388, 389 (1979).
23 13 Op. O.L.C. 248, 250 (1989). (This memorandum was superceded by a 1996 OLC
memorandum, which did not address the issue of qualifications (20 Op. O.L.C. 120).)
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In 1996, the Department of Justice, citing Myers v. United States, the 1871
opinion of the Attorney General, and the 1979 OLC opinion, acknowledged that
Congress has the constitutional authority to set certain qualifications. Nonetheless,
it asserted that the requirements for the U.S. Trade Representative overstepped this
authority because of the foreign policy responsibilities of the position and the
position’s close proximity to the President:
Whatever the possible role of Congress in setting reasonable qualifications for
office, ... a restriction ruling out a large portion of those persons best qualified
by experience and knowledge to fill a particular office invades the constitutional
power of the President and Senate to install the principal officers of the United
States. Any power in the Congress to set qualifications “is limited by the
necessity of leaving scope for the judgment and will of the person or body in
whom the Constitution vests the power of appointment.” [Akerman] Congress
may not dictate qualifications “unattainable by a sufficient number to afford
ample room for choice.” [Akerman] Even if “there is no settled constitutional
rule that determines how ... the power of the Congress to prescribe qualifications
and the power of the President to appoint ... are to be reconciled,” we have
opined that “there must be some constitutionally prescribed balance” and that
this “balance may shift depending on the nature of the office in question.” [1979
OLC opinion] Here, the restriction is particularly egregious because the office
in question involves representation of the United States to foreign governments
— an area constitutionally committed to the President.... Furthermore, the
position in question is especially close to the President. The Office of United
States Trade Representative is “established within the Executive Office of the
President.” ... Congress has also expressed [in statute] its sense that the United
States Trade Representative “be the senior representative on any body that the
President may establish for the purpose of providing to the President advice on
overall economic policies in which international trade matters predominate.” ...
We believe that, where an office thus entails broad responsibility for advising the
President and for making policy, the President must have expansive authority to
choose his aides.24
Although executive branch views, as expressed in these signing statements and
opinions from the Department of Justice, are seemingly inconclusive about the
precise range of Congress’s constitutional authority in this area, they clearly do not
endorse the view that this authority is broad.
Statutory Qualifications in Practice
Congress has established hundreds of executive branch positions in statute, but
only a relatively small portion of the provisions creating these positions specify
minimum qualifications that must be met by appointees. Table 1, in the appendix to
this report, provides examples of department and agency leadership positions with
statutory qualification requirements. For each example, the table identifies the
position, its compensation level, the text of the qualification provision, the location
of the provision in the U.S. Code, and the type of provision. Table 2, also located
24 20 Op. O.L.C. 279, 280-281 (1996).
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in the appendix, provides similar examples for independent collegial bodies, such as
regulatory boards and commissions.
As suggested by Justice Brandeis’s previously mentioned dissenting opinion in
the Myers case, Congress has developed a number of different kinds of qualifications
for executive branch leadership positions. These include the following:
! requirements of political party balance on collegial bodies;
! restrictions on the basis of active duty or retired military status;
! restrictions on the basis of concurrent federal government
employment;
! restrictions on the basis of criminal record;
! restrictions on the basis of prior employment;
! requirements of specified expertise, knowledge, or education;
! requirements that the individual be an authority in a specified field
related to the position;
! requirements of demonstrated ability, or experience related to the
position;
! requirements of fitness between the individual and the office;
! requirements of specified character trait (e.g., integrity);
! requirements of U.S. citizenship;
! requirements that the individual be selected without regard to
political affiliation; and
! requirement of specified affiliations (e.g., membership in the Public
Health Service for the Surgeon General).
For some positions, the qualifications are specific. The director of the Office
of Federal Housing Enterprise Oversight, for example, is to be appointed “from
among individuals who are citizens of the United States, have a demonstrated
understanding of financial management or oversight, and have a demonstrated
understanding of mortgage security markets and housing finance.” The law further
provides a very specific disqualifying provision: “An individual may not be
appointed as Director if the individual has served as an executive officer or director
of an enterprise at any time during the 3-year period ending upon the nomination of
such individual for appointment as Director.”25 Similarly, the position of controller
at the Office of Federal Financial Management in the Office of Management and
Budget (OMB) must be filled “from among individuals who possess — (1)
demonstrated ability and practical experience in accounting, financial management,
and financial systems; and (2) extensive practical experience in financial
management in large government or business entities.”26 These provisions seemingly
provide objective criteria, such as demonstrated understanding of specific topics and
ability and experience in certain fields, that must be used in the selection, by the
President, and consideration, by the Senate, of nominees to these two positions.
For other positions, qualification requirements are more general. The position
of director of operational test and evaluation at the Department of Defense, for
25 12 U.S.C. § 4512(a).
26 31 U.S.C. § 504(b).
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example, is to be filled “without regard to political affiliation and solely on the basis
of fitness to perform the duties of the office of Director.”27 Similarly, appointments
to the position of archivist of the United States are to be made “without regard to
political affiliations and solely on the basis of the professional qualifications required
to perform the duties and responsibilities of the office of the Archivist.”28 These
provisions supply guidance to the President, in his selection, and to the Senate, in its
consideration of a nominee. Compared with the language of more specific
requirements, the phrases used in these provisions — regard for political affiliation,
fitness to perform the duties, and professional qualifications required to perform the
duties and responsibilities — would arguably be subject to a greater variety of
subjective interpretations.
In some cases, Congress has established requirements that appointees be drawn
from particular parts of the population. For example, at least seven of the 25
members of the Architectural and Transportation Barriers Compliance Board must
be individuals with disabilities.29 In other cases, Congress has specified that special
experience or sensitivity to a population is required. In selecting appointees for the
Committee for Purchase from People Who Are Blind or Severely Disabled, the
President is to select several non-governmental appointees, one of whom is
“conversant with the problems incident to the employment of the blind,” another of
whom is “conversant with the problems incident to the employment of other severely
handicapped individuals,” a third of whom “represent[s] blind individuals employed
in qualified nonprofit agencies for the blind,” and a fourth of whom “represent[s]
severely handicapped individuals (other than blind individuals) employed in qualified
nonprofit agencies for other severely handicapped individuals.”30 Although many
individuals would meet these qualifications, the requirements significantly reduce the
size of the pool of individuals from which the President can select.
In some cases, Congress has applied a qualification to a broad category of
positions for specific policy reasons. For example, many defense-related leadership
positions are required to be filled by civilians, which reinforces the tradition of
civilian supremacy in the United States government.31 Only a civilian may be
appointed as Secretary of Defense. In addition, an individual “may not be appointed
[to the position] within 10 years after relief from active duty as a commissioned
officer of a regular component of an armed force.”32 Military service restrictions of
one kind or another apply to many other leaders of the Department of Defense, as
27 10 U.S.C. § 139.
28 44 U.S.C. § 2103.
29 29 U.S.C. § 792(a)(1)(A).
30 41 U.S.C. § 46(a)(2).
31 For more on the history of this development, see Samuel P. Huntington, The Soldier and
the State: The Theory and Politics of Civil-Military Relations (Cambridge, MA: Harvard
University, 1957).
32 10 U.S.C. § 113(a).
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well, including the Deputy Secretary,33 Under Secretaries,34 and Assistant
Secretaries.35 Other executive branch leadership positions with military service
restrictions include the Director and principal Deputy Director of National
Intelligence,36 the Administrator and Deputy Administrator of the Federal Aviation
Administration (FAA),37 and the Administrator and Deputy Administrator of the
National Aeronautics and Space Administration (NASA).38
Qualification Modifications
Congress has sometimes modified qualifications it had established earlier. For
example, an appointee to the position of Under Secretary for Health at the
Department of Veterans Affairs was formerly required to be
a doctor of medicine ... appointed without regard to political affiliation or activity
and solely — (A) on the basis of demonstrated ability in the medical profession,
in health-care administration and policy formulation, and in health-care fiscal
management; and (B) on the basis of substantial experience in connection with
the programs of the Veterans Health Administration or programs of similar
content and scope.
This provision was amended by the Veterans Health Programs Improvement Act of
2004.39 Under the qualifications specified in the revised section, the appointee is no
longer required to be a doctor of medicine, and must have “demonstrated ability in
the medical profession, in health-care administration and policy formulation, or in
health-care fiscal management,” rather than all three areas.40 This amendment
emerged from the House Committee on Veterans’ Affairs with the following
explanation:
Current law requires the Under Secretary for Health to be a “doctor of medicine,”
restricting the pool of candidates that may be considered by the President for
nomination to the position. Senior executives in the health care industry who
may have exceptional credentials and experience, but who are not doctors of
medicine, are excluded from consideration.
The Committee bill would repeal the requirement for VA’s Under Secretary for
Health to be a medical doctor and allow the Secretary flexibility to nominate
33 10 U.S.C. § 132(a).
34 10 U.S.C. §§ 133, 134, 135, 136, and 137.
35 10 U.S.C. § 138.
36 50 U.S.C. § 403-3a.
37 49 U.S.C. § 106.
38 42 U.S.C. § 2472.
39 P.L. 108-422; 118 Stat. 2379.
40 38 U.S.C. § 305(a). Emphasis added.
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candidates with demonstrated abilities to fill this key position from the widest
spectrum of talents.41
Qualification Waivers
Qualification provisions are created by law; they may also be waived by law,
and Congress has occasionally done so on a case-by-case basis. Congress passed
legislation waiving civilian status requirements for the appointments of General
George C. Marshall as Secretary of Defense (1950),42 retired Admiral James B.
Busey and retired General Thomas C. Richards to FAA Administrator (1989 and
1992),43 and Rear Admiral Richard H. Truly as NASA Administrator (1989).44 In
2002, the civilian status limitation on the NASA Deputy Administrator was waived
for the candidate of the President’s choosing for the duration of that fiscal year, rather
than for a particular individual.45 The President nominated an active duty Marine
Corps officer to the position, then withdrew the nomination in the face of opposition,
among key Senators, to setting such a precedent.46 He subsequently nominated a
civilian, who was confirmed.
In addition to these cases involving military officers, Congress has waived
qualifications in other instances. In 1997, for example, Congress waived a conflict
of interest restriction for the U.S. trade representative. The section provides that
[a] person who has directly represented, aided, or advised a foreign entity ... in
any trade negotiation, or trade dispute, with the United States may not be
appointed as United States Trade Representative or as a Deputy United States
Trade Representative.47
This provision was waived to allow Charlene Barshefsky to be appointed as U.S.
Trade Representative. As an attorney for a Washington law firm, she had “advised
the Canadian government on trade matters and also represented the government of
Quebec in a case involving lumber imports.”48 Among the arguments presented in
41 U.S. Congress, House Committee on Veterans’ Affairs, Department of Veterans Affairs
Nurse Recruitment and Retention Act of 2004, report to accompany H.R. 4231, 108th Cong.,
2nd sess., H.Rept. 108-538 (Washington: GPO, 2004), p. 10.
42 P.L. 81-788, 64 Stat. 853.
43 P.L. 101-47, 103 Stat. 134; and P.L. 102-308, 106 Stat. 273.
44 P.L. 101-48, 103 Stat. 136.
45 P.L. 107-117, § 307, 115 Stat. 2301.
46 Bill Gertz and Rowan Scarborough, “Inside the Ring,” Washington Times, Mar. 22, 2002,
p. 9.
47 19 U.S.C. § 2171(b)(3).
48 Paul Blustein, “Clinton Seeks Waiver for Barshefsky,” Washington Post, Jan. 9, 1997, p.
E3.
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favor of the waiver was the fact that Barshefsky was already serving as deputy U.S.
trade representative in 1995 when the restriction was enacted.49
Qualifications for Members of Collegial Bodies
Statutory qualification requirements are more common for members of collegial
boards and commissions than they are for other executive branch leadership
positions. (For examples of requirements for collegial bodies, see Table 2 in the
appendix of this report.) Arguably, such provisions serve to enhance both the
independence and neutral competence of these entities.
Collegial boards and commissions are generally structured so that they have
more independence from the President than do other executive branch agencies. As
one congressional study stated with regard to regulatory bodies,
[h]istorically, Congressional interest in the regulatory agencies is rooted in the
notion that these commissions were created by Congress, vested with
Congressional authority to regulate interstate commerce and, therefore, had a
special relationship to the legislative branch. The commission form, as it has
been created and developed by Congress over the past ninety years, is a
determined attempt to isolate the agencies both from precipitous change and from
control by the Executive Branch. It was for those reasons that Congress
established bipartisan commissions composed of multi-members, serving set
terms expiring at staggered intervals, who could be removed by the President
only upon a showing of sufficient cause.50
Qualification requirements for members of a collegial body can also serve to enhance
the agency’s independence by emphasizing the importance of neutral competence,
relative to political considerations, during the selection and confirmation processes.
In the post-World War II era, the quality of the membership and functioning of
regulatory bodies was a matter of concern for government scholars and observers.
In 1949, the first Hoover Commission observed that “[a]ppointments to membership
on [independent regulatory] commissions are sometimes below desirable standards
because of the inadequate salaries offered, or the failure of the Executive to
appreciate the importance of the positions.”51 A 1960 report to President-elect John
F. Kennedy was also critical of the quality of regulatory agency leaders:
It is generally admitted by most observers that since World War II a deterioration
in the quality of our administrative personnel has taken place, both at the top
level and throughout the staff.... Careful scrutiny of agency members from the
49 Rep. Billy Tauzin, remarks in the House, Congressional Record, daily edition, vol.143,
Mar. 11, 1997, p. H822.
50 U.S. Congress, Senate Committee on Government Operations, Study on Federal
Regulations: Vol. 1, The Regulatory Appointments Process, S. Doc. 95-25, 95th Cong., 1st
sess. (Washington: GPO, 1977), p. 16.
51 U.S. Commission on Organization of the Executive Branch of the Government, The
Independent Regulatory Commissions: A Report to the Congress by the Commission on
Organization of the Executive Branch of the Government (Washington: GPO, 1949), p.3.
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standpoint of their qualifications as well as their prejudices in behalf of
administering the legislative goals to which they were to be committed, was
during these years too often replaced by a consideration of what political
obligations could be repaid through appointments.... These attitudes have had a
serious impact upon the regulatory agencies. At the top level initial expertise
would be lacking and the want of devotion to the public service militated against
its acquisition through continuing tenure. Top administrative positions appear
to have been sought frequently as stepping stones to further political preference
or to positions of importance within the industries subject to regulation. A too
common complaint at the bar is that the staffs have captured the commissions
and that independent and bold thinking on the part of the members of these
agencies is absent.52
In the late 1970s, a Senate committee investigation found that the “pre-eminent
problem with the regulatory appointments process, as it has operated in the past, is
that it has not consistently resulted in the selection of people best equipped to handle
regulatory responsibilities.”53 The committee recommended that the organic acts for
each collegial regulatory board and commission include the following language:
The President shall nominate persons for the Commission/Board to insure
commission membership shall be balanced, with broad representation of various
talents, backgrounds, occupations, and experience appropriate to the functions
and responsibilities of the Commission/Board. . . . The Commission/Board shall
be composed of members who by reason of training, education or experience are
qualified to carry out the functions of the Commission/Board under this
chapter.54
Although this specific language has not been included in the organic acts of all
boards and commissions, many collegial bodies now have statutory provisions
imposing similar requirements. (See Table 2.)
Statutory Qualifications: Analysis and Options
Should issues of executive branch competence become a high priority in the
110th Congress, it might consider adding qualification requirements to existing or
new statutory executive branch positions. The use of statutory qualifications entails
certain potential benefits and costs for Congress, the President, and the federal
bureaucracy. These advantages and disadvantages are discussed in the next section.
This section is followed by a discussion of several options.
52 U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Administrative
Practice and Procedure, Report on Regulatory Agencies to the President-elect, committee
print prepared by James M. Landis, 86th Cong., 2nd sess. (Washington: GPO, 1960), pp. 11-
12.
53 U.S. Congress, Senate Committee on Governmental Affairs, Principal Recommendations
and Findings of the Study on Federal Regulation, Volumes I-VI, committee print, 96th Cong.,
1st sess. (Washington: GPO, 1979), p. 13.
54 Ibid., p. 4.
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Advantages and Disadvantages of Statutory Qualifications
Although some statutory qualification requirements address characteristics that
are not explicitly related to competence (notably those setting civilian and citizenship
status requirements), most appear intended to ensure that competent and qualified
individuals are appointed to leadership positions. One student of the administrative
process observed, “[t]he prime key to the improvement of the administrative process
is the selection of qualified personnel. Good men can make poor laws workable;
poor men will wreak havoc with good laws.”55 Both Congress and the President have
an interest in ensuring that the federal government is led by competent leaders who
have the ability to implement the law successfully and faithfully. At the same time,
inasmuch as the President is seen to be responsible for coordinating the management
of the executive branch, it could be argued that he must be given the freedom to
appoint leaders who will be accountable and, to some degree, politically loyal to him.
These interests — competence, accountability, and loyalty — are not mutually
exclusive. Nonetheless, they can be in tension. For example, recent research
suggests that executive branch programs headed by mid-level managers, who are
appointed at the agency level, may be better managed than those run by top executive
branch leaders in presidentially appointed, Senate-confirmed positions.56
It could be argued that establishing minimum qualifications for a program’s or
agency’s leadership position is likely to lead to improved performance by that
program or agency. This argument assumes that the President would select, and the
Senate would consider, a nominee on the basis of these qualifications. It also
assumes that the Senate would more easily reject, on this basis, poorly suited
candidates. Finally, it assumes that an appointee with these qualifications would do
a better job of leading the program or agency than would an appointee without these
qualifications. Although these assumptions might hold true in many cases where
qualifications are stipulated, they are not guaranteed to hold in all situations.
The difficulties that may arise during the implementation of qualification
provisions are illustrated by the 2005-2006 nomination and appointment of Julie
Myers to be Assistant Secretary of Homeland Security for U.S. Immigration and
Customs Enforcement. This position, originally established by the Homeland
Security Act of 2002 as the Assistant Secretary of the Bureau of Border Security, is
to be filled by an individual who has “a minimum of 5 years professional experience
in law enforcement, and a minimum of 5 years of management experience.”57 The
55 U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Administrative
Practice and Procedure, Report on Regulatory Agencies to the President-elect, p. 66.
56 John B. Gilmour and David E. Lewis, “Political Appointees and the Competence of
Federal Program Management,” American Politics Research, vol. 34, Jan. 2006, p. 22. The
researchers conclude that they “have shown that programs administered by political
appointees get systematically lower management grades than programs administered by
senior executives” (p. 42). Their sample of senior executives includes both career
employees and political appointees, however.
57 6 U.S.C. § 252(a)(2)(B). This position has a unique statutory context. Originally, the
Homeland Security Act of 2002 established the position of Assistant Secretary of the Bureau
(continued...)
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President nominated Myers to the position on June 29, 2005. Questions about
whether or not Myers met the specified qualifications were raised and addressed
during her confirmation hearing before the Senate Committee on Homeland Security
and Governmental Affairs.58 In the months after the hearing, some Senators were
satisfied that Myers was qualified for the position, while others stated that her
experience was insufficient and opposed the nomination on that basis.59 The
nomination was reported out of the committee and placed on the Senate Executive
Calendar, but it was never considered by the full Senate.60 Although reservations
about Myers’s qualifications may have prevented the nomination from coming to the
floor, the nomination may also have been held up because of other concerns.61 On
January 4, 2006, the President gave Myers a recess appointment to the position.62
This appointment will expire at the end of the first session of the 110th Congress.
Although many qualified individuals are nominated to, and confirmed for,
positions with statutory qualifications, appointments to such positions can sometimes
lead to a tug of war between the President and Congress. In such a case, (1)
Congress establishes minimum experience requirements; (2) the President nominates
the individual of his choice, who some argue has insufficient experience to meet
these requirements; (3) the Senate does not confirm the nomination after some
Senators oppose it because of this perceived shortcoming; (4) the President gives the
nominee a recess appointment that lasts up to two years; and (5) at the end of that
period, barring Senate confirmation, the appointee has to leave office.
It could be argued that this interbranch conflict is a healthy exercise of
constitutional checks and balances. But this dynamic seemingly imposes a
57 (...continued)
of Border Security without specifying the means of appointment (P.L. 107-296 § 442(a)(2)).
As part of a modification of a presidential reorganization plan that rearranged border
security functions, the position was renamed the Assistant Secretary for the Bureau of
Immigration and Customs Enforcement and identified as a presidentially appointed
Senate-confirmed position. (See “Border Reorganization Fact Sheet,” at
[http://www.dhs.gov/xnews/releases/ press_release_0073.shtm], visited Dec. 28, 2006.)
58 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs,
Nominations of Stewart A. Baker and Julie L. Myers, hearing, 109th Cong., 1st sess., Sept.
15, 2005, pp. 16-21.
59 Chris Strohm, “New Immigration Enforcement Chief Gets Mixed Reception,”
GovExec.com Daily Briefing, Jan. 5, 2006, accessed at [http://www.govexec.com/dailyfed/
0106/010506c1.htm], visited Dec. 28, 2006.
60 Information obtained from the nominations database of the Legislative Information
System (LIS), available to Congress at [http://www.congress.gov/nomis/].
61 Eileen Sullivan, “Recess DHS Appointments May Backfire, Expert Says,” CQ Homeland
Security, Jan. 6, 2006, accessed at [http://homeland.cq.com/hs/display.do?dockey=/
cqonline/prod/data/docs/html/hsnews/109/hsnews109-000002026893.html@allnews&me
tapub=HSNEWS&seqNum=8&searchIndex=0], visited Dec. 28, 2006.
62 U.S. President (G.W. Bush), “Personnel Announcement,” Jan. 4, 2006, available at
[http://www.whitehouse.gov/news/releases/2006/01/20060104-3.html], visited Dec. 28,
2006.
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potentially heavy cost on the federal bureaucracy. An individual whose leadership
and management qualifications are publicly cast into doubt in the Senate can still
serve in a major federal government leadership position if the President elects to
circumvent the confirmation process through a recess appointment. Although the
President can install his chosen nominee in this way, the process might diminish the
appointee’s stature and, potentially, his or her effectiveness.
The prospect of an interbranch tug of war over qualifications might raise
concerns, from an institutional perspective and on a practical level, about the worth
of establishing such qualifications in the first place. Institutionally, this tug of war
might sometimes damage Congress, particularly the Senate. To the extent that the
President circumvents the Senate when a nominee’s qualifications are in question,
congressional prerogatives — the authority of Congress to specify the characteristics
of an office and the role of the Senate in the appointment process — are undercut
and, seemingly, these institutions are injured. As a practical matter, it could be
argued that a qualification requirement is of little use if it is not sufficient to prevent
an individual whose satisfaction of that requirement is in doubt in the Senate from
holding the office.
It is worth noting, however, that statutory qualifications do not typically lead to
such open conflicts between Congress and the President. Because these conflicts can
impose political and institutional costs on the President as well, he has an incentive,
in general, to abide by the requirements established by Congress. When Congress
contemplates establishing qualifications, the possibility of such a conflict — a
disadvantage — might be weighed against the potential benefits of the proposed
requirements.
Conflicts concerning statutory qualifications have typically been resolved
through the political process. Whether statutory qualifications legally bind the
appointment process actions of the President or the Senate remains an open question.
It is not clear what, if any, legal consequences might follow if either actor were to
ignore such provisions.
Establishing specific qualifications for an advice and consent position entails
other potential disadvantages. First, it narrows the field of individuals from whom
the President may select, and otherwise worthy candidates might be eliminated
prematurely from consideration. Second, the inclusion of certain qualifications in
law could lead the President and the Senate to overlook or undervalue other
potentially important qualities when evaluating candidates. Third, the qualifications
that are necessary, or most important, for carrying out the responsibilities of a
position might change over time. Finally, should the President and the Senate
determine that it would be preferable, in a given situation, to appoint, to a given
position, an individual who does not technically meet its qualifications, legislation
might be necessary to waive the statutory requirements.
Options for Congressional Consideration
With regard to statutory qualifications, several approaches are available to
Congress. Most existing statutory qualifications will remain in force absent
congressional action. Congress could reduce the number of positions with these
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kinds of requirements, either through a comprehensive review of such provisions or
through incremental legislative changes, during a reauthorization process, for
example. Congress could increase the use of statutory qualifications. Options
include the continued incremental adoption of qualification provisions, the
development of agency-wide minimum qualification thresholds, and the enactment
of a government-wide standard for all government leadership positions. The Senate
could also elect to establish threshold standards for confirmation of all or some
presidential nominees.
Incremental Establishment of Qualifications. Congress could continue
recent legislative practices and establish statutory qualifications on a case-by-case
basis. Under this option, the number of positions with these requirements would
slowly increase. These provisions could be added where neutral competence is
perceived to be of particular importance, or where other attributes, such as U.S.
citizenship or civilian status, are deemed necessary. This approach would be
consistent with the view that the need for program or agency leaders with particular
characteristics should be weighed, on a case-by-case basis, against the President’s
need for flexibility in selecting his preferred leadership team. It assumes that the
balance between these two interests will vary according to the responsibilities of the
position and its proximity to the President. Whereas Congress might require
members of an independent regulatory entity that deals with complex technical
questions to have a certain educational background, for example, it might not
stipulate any requirements for an assistant secretary whose responsibilities are
assigned by the secretary.
Agency-wide Qualifications. Congress could establish, for one or more
agencies, organization-wide threshold requirements. In effect, Congress has
instituted such a threshold requirement — civilian status — for most top leadership
positions at the Department of Defense. Such thresholds have also been established
for the membership of many collegial bodies, especially regulatory boards and
commissions, as discussed above. These entities differ from departments and other
executive branch entities, however, because they each have only a few uniform
leadership positions.
In a variation of this approach, Congress could establish agency-wide
requirements that vary according to each leadership position’s level in an agency’s
hierarchy. During the 109th Congress, Senator Daniel K. Akaka introduced
legislation that used this model. The bill would have established minimum
leadership, management, and subject matter experience requirements for most top
leaders at the Department of Homeland Security (DHS). It would also have required
that appointees to top leadership positions in the department possess “a demonstrated
ability to manage a substantial staff and budget.”63 Appointees to positions
compensated at Levels II and III of the Executive Schedule, such as the Administrator
of FEMA and DHS Under Secretaries, would have been required to meet the most
rigorous standards proposed by the bill. Appointees to Level IV positions, such as
most Assistant Secretaries, would have been subject to similar, but slightly less
stringent, standards. The bill would have excepted the DHS Secretary and Deputy
63 109th Cong., S. 2040, § 3.
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Secretary, as well as the Commandant of the Coast Guard, from these requirements.
The agency-wide qualifications approach might be particularly useful to
Congress where broad agreement exists, particularly on the congressional committees
of jurisdiction, regarding threshold standards for a particular agency. Agency-wide
qualifications might be more difficult to establish where broad agreement on
minimum standards does not exist or where the leadership positions for a given
agency require a broad range of talents or experience.
Government-wide Standards. Another approach that Congress could
consider would be to establish government-wide requirements that would be applied
to all or most top leadership positions. Congress has established government-wide
requirements regarding citizenship through a recurring provision of the funding bill
for the Department of the Treasury and other agencies. The provision’s requirements
are quite specific:
Unless otherwise specified during the current fiscal year, no part of any
appropriation contained in this or any other Act shall be used to pay the
compensation of any officer or employee of the Government of the United States
(including any agency the majority of the stock of which is owned by the
Government of the United States) whose post of duty is in the continental United
States unless such person: (1) is a citizen of the United States; (2) is a person in
the service of the United States on the date of the enactment of this Act who,
being eligible for citizenship, has filed a declaration of intention to become a
citizen of the United States prior to such date and is actually residing in the
United States; (3) is a person who owes allegiance to the United States; (4) is an
alien from Cuba, Poland, South Vietnam, the countries of the former Soviet
Union, or the Baltic countries lawfully admitted to the United States for
permanent residence; (5) is a South Vietnamese, Cambodian, or Laotian refugee
paroled in the United States after January 1, 1975; or (6) is a national of the
People’s Republic of China who qualifies for adjustment of status pursuant to the
Chinese Student Protection Act of 1992 (Public Law 102-404): Provided, That
for the purpose of this section, an affidavit signed by any such person shall be
considered prima facie evidence that the requirements of this section with respect
to his or her status have been complied with: Provided further, That any person
making a false affidavit shall be guilty of a felony, and, upon conviction, shall
be fined no more than $4,000 or imprisoned for not more than 1 year, or both:
Provided further, That the above penal clause shall be in addition to, and not in
substitution for, any other provisions of existing law: Provided further, That any
payment made to any officer or employee contrary to the provisions of this
section shall be recoverable in action by the Federal Government. This section
shall not apply to citizens of Ireland, Israel, or the Republic of the Philippines,
or to nationals of those countries allied with the United States in a current
defense effort, or to international broadcasters employed by the United States
Information Agency, or to temporary employment of translators, or to temporary
employment in the field service (not to exceed 60 days) as a result of
emergencies.64
64 P.L. 109-115, § 805; 119 Stat. 2496.
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Most full-time leaders are paid from appropriated funds. In effect, therefore, the
provision restricts appointments, government-wide, to many top leadership positions.
If Congress found it necessary, such an approach could be used to put in place
qualifications such as minimum experience or demonstrated ability. Qualifications
that set discrete, objective standards might be more easily enforced than those that
set more subjective requirements. Arguably, it is easier to measure whether or not
a nominee has specific educational credentials than whether he or she meets the
threshold of “related educational background.”
Notably, the appropriations provision above includes a number of exceptions.
If Congress were to determine that no non-U.S. citizen should be appointed to a
particular position, it would need to enact a separate, more restrictive, provision for
that post. This example demonstrates the difficulty of establishing a government-
wide standard that could cover all situations. Consequently, if Congress were to
establish government-wide minimum standards, it might be necessary to create
individual exceptions for certain positions.
Senate Standards. Several of the options discussed above would set
qualifications in statute. The Senate, of course, could establish confirmation
standards that would, in effect, set qualifications for some or all nominations. This
approach was recommended, for regulatory agency appointees, by the Senate
Committee on Governmental Affairs as a result of its previously discussed late-1970s
study. The committee recommended that
[t]he Senate should establish the following general standards to be applied in
confirmation of regulatory agency appointees: (a) That by reason of background,
training or experience, the nominee is affirmatively qualified for the office to
which he or she is nominated. (b) That, in considering a regulatory appointment,
the Senate shall consider the character and nature of the office, and the needs of
the agency to which the nominee has been named. (c) That, in considering a
regulatory appointment to a collegial body, the Senate shall consider the existing
composition of that body and whether or not members of a single sector or group
in society are too heavily represented. (d) That the nominee is committed to
enforcement of the regulatory framework as established by Congress in the
statutes. (e) That the nominee meet the statutory qualifications to hold the office
to which he or she was nominated.65
Such confirmation standards might be established in the Standing Rules of the
Senate, or by standing order, either of which would be accomplished by Senate
resolution. Alternatively, such standards could be adopted by individual committees
for nominations within their jurisdictions. These rules, at either the committee or full
Senate level, could establish either mandatory or optional consideration of standards
during the confirmation process, and they could require either that the standards be
considered or that they be followed, and/or include waiver and enforcement
provisions.
65 U.S. Congress, Senate Committee on Governmental Affairs, Principal Recommendations
and Findings of the Study on Federal Regulation, Volumes I-VI, p. 10.
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A constitutional objection might be raised with regard to the establishment of
Senate confirmation standards. Unlike statutory qualifications, which, as discussed
above, can be seen to be an exercise of Congress’s constitutional authority to create
offices, Senate confirmation standards would be established by the Senate alone,
rather than the full Congress. On the other hand, it could be argued that such
standards would be a legitimate exercise of the Senate’s constitutional authority to
set its own rules. The rules would not directly limit the President’s authority to select
a nominee, they would merely guide the Senate’s advice and consent process.
Concluding Observations
The preponderance of evidence and historical practice suggests that Congress
generally has the constitutional authority to establish statutory qualifications for
federal government positions. Although Congress enjoys broad discretion in this
area, there appears to be consensus that it may not set qualifications that limit the
President’s selection to the extent that the appointment is a de facto legislative
designation. Neither case law nor statute has established a bright line that clearly
defines the boundaries of this authority. Within this somewhat ambiguous
environment, Congress, at times, has enacted standards that limit the President’s
selection pool to a greater extent than the executive branch sees as legitimate. In
response, the President has issued signing statements, and the Justice Department has
issued opinions, that challenge the constitutionality of such provisions. In practice,
this difference of opinion has occasionally led to conflict between the two branches
in the appointment process arena. Whereas Senators may sometimes block
confirmation of a nominee who is perceived to lack sufficient qualifications, the
President may use his recess appointment power to sidestep the Senate and install his
preferred nominee. Although this dynamic might be suboptimal for the smooth
functioning of the federal bureaucracy, for Congress, and for the President, it is part
of a larger pattern of give and take between the President and Congress in areas of
shared constitutional power. For the moment, interbranch conflicts concerning
statutory qualifications are likely to be resolved in the political realm.
If establishing such standards became a legislative priority, Congress would
have a number of options for asserting its prerogatives in this area. These options
include a continuation of present ad hoc practices, establishment of agency-wide or
government-wide standards, and the establishment, in the Senate, of confirmation
standards. The success of statutory qualifications and confirmation standards as a
means of ensuring competent leadership of the federal bureaucracy would depend on
adherence to them during the selection and confirmation processes, and successful
political resolution of interbranch conflicts as they arise.
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Appendix: Examples of Statutory Qualification Requirements
Table 1. Examples of Department and Agency Leadership Positions with Statutory Qualification Requirements
Position a
General Requirement or
Provision(s)
(Executive Schedule Level)
Restriction
Secretary of Defense, Department of
... appointed from civilian life.... A person may not be appointed as Secretary of
• Military restriction
Defense (I)
Defense within 10 years after relief from active duty as a commissioned officer of a
regular component of an armed force. [10 U.S.C. § 113(a)]
Director of National Intelligence,
... shall have extensive national security expertise. [50 U.S.C. § 403]
• Expertise
Office of the Director of National
Not more than one of [the Director of National Intelligence and the Principal Deputy
• Military restriction
Intelligence (I)
Director of National Intelligence] may be a commissioned officer of the Armed Forces
in active status. [50 U.S.C. § 403-3a(c)]
Principal Deputy Director of National
...shall have extensive national security experience and management expertise ... [and]
• Related experience
Intelligence, Office of the Director of
shall not, while so serving, serve in any capacity in any other element of the
• Expertise
National Intelligence (II)
intelligence community.... Not more than one of [the Director and Principal Deputy
• Concurrent employment
Director of National Intelligence] may be a commissioned officer of the Armed Forces
restriction
in active status. [50 U.S.C. § 403-3a(c)]
• Military restriction
Administrator, Federal Aviation
... the President shall consider the fitness of the individual to carry out efficiently the
• Fitness
Administration, Department of
duties and powers of the office.... The administrator must — (1) be a citizen of the
• U.S. citizenship
Transportation (II)
United States; (2) be a civilian; and (3) have experience in a field directly related to
• Military restriction
aviation. [49 U.S.C. § 106(b) and (c)]
• Related experience
CRS-23
Position a
General Requirement or
Provision(s)
(Executive Schedule Level)
Restriction
Director, Office of Federal Housing
... shall be appointed ... from among individuals who are citizens of the United States,
• U.S. citizenship
Enterprise Oversight, Department of
have a demonstrated understanding of financial management or oversight, and have a
• Related knowledge
Housing and Urban Development (II)
demonstrated understanding of mortgage security markets and housing finance. An
• Prior employment
individual may not be appointed as Director if the individual has served as an executive
restriction
officer or director of an enterprise at any time during the 3-year period ending upon the
nomination of such individual for appointment as Director. [12 U.S.C. § 4512(a)]
Director, Institute of Education
... shall be selected from individuals who are highly qualified authorities in the fields of
• Authority in specified
Sciences, Department of Education
scientifically valid research, statistics, or evaluation in education, as well as
fields
(II)
management within such areas, and have a demonstrated capacity for sustained
• Related demonstrated
productivity and leadership in these areas. [20 U.S.C. § 9514(d)]
ability
Administrator, Federal Emergency
... shall be appointed from among individuals who have ... a demonstrated ability in
• Related demonstrated
Management Agency, Department of
and knowledge of emergency management and homeland security; and ... not less than
ability
Homeland Security (II)
5 years of executive leadership and management experience in the public or private
• Related knowledge
sector. [6 U.S.C. § 313(c)(2)]
• Related experience
Controller, Office of Federal
... shall be appointed from among individuals who possess — (1) demonstrated ability
• Related demonstrated
Financial Management, Office of
and practical experience in accounting, financial management, and financial systems;
ability
Management and Budget, Executive
and (2) extensive practical experience in financial management in large governmental
• Related experience
Office of the President (III)
or business entities. [31 U.S.C. § 504(b)]
Archivist of the United States,
... shall be appointed without regard to political affiliations and solely on the basis of
• Apolitical appointment
National Archives and Records
the professional qualifications required to perform the duties and responsibilities of the
• Related qualifications
Administration (III)
office of Archivist. [44 U.S.C. § 2103]
CRS-24
Position a
General Requirement or
Provision(s)
(Executive Schedule Level)
Restriction
Deputy Director for Demand
... the President shall take into consideration the scientific, educational or professional
• Related background
Reduction, Office of National Drug
background of the individual, and whether the individual has experience in the fields of
• Related experience
Control Policy, Executive Office of
substance abuse prevention, education, or treatment. [21 U.S.C. § 1703(a)(1)]
the President (III)
Under Secretary for Health,
... shall be appointed without regard to political affiliation or activity and solely — (A)
• Apolitical appointment
Department of Veterans Affairs (III)
on the basis of demonstrated ability in the medical profession, in health-care
• Related demonstrated
administration and policy formulation, or in health-care fiscal management; and (B) on
ability
the basis of substantial experience in connection with the programs of the Veterans
• Related experience
Health Administration or programs of similar content and scope. [38 U.S.C. §
305(a)(2)]
Under Secretary for Benefits,
... shall be appointed without regard to political affiliation or activity and solely on the
• Apolitical appointment
Department of Veterans Affairs (III)
basis of demonstrated ability in — (1) fiscal management; and (2) the administration of
• Related demonstrated
programs within the Veterans Benefits Administration or programs of similar content
ability
and scope. [38 U.S.C. § 306(a)]
Under Secretary for Science,
... shall be appointed from among persons who — (A) have extensive background in
• Related background
Department of Energy (III)
scientific or engineering fields; and (B) are well qualified to manage the civilian
• Related qualifications
research and development programs of the Department. [42 U.S.C. § 7132(b)(3)]
CRS-25
Position a
General Requirement or
Provision(s)
(Executive Schedule Level)
Restriction
Under Secretary for Nuclear
... shall be appointed from among persons who — (A) have extensive background in
• Related background
Security/Administrator, National
national security, organizational management, and appropriate technical fields; and
• Related qualifications
Nuclear Security Administration,
(B) are well qualified to manage the nuclear weapons, nonproliferation, and materials
Department of Energy (III)
disposition programs of the National Nuclear Security Administration in a manner that
advances and protects the national security of the United States. [42 U.S.C. §
7132(c)(2)]
Director, Office of Thrift
... shall be appointed ... from among individuals who are citizens of the United States.
• U.S. citizenship
Supervision, Department of the
[12 U.S.C. 1462a(c)(1)]
Treasury (III)
Commissioner of Internal Revenue,
... appointment shall be made from individuals who, among other qualifications, have a
• Related demonstrated
Department of the Treasury (III)
demonstrated ability in management. [26 U.S.C. § 7803(a)(1)(A)]
ability
Deputy Administrator, Federal
... must be a citizen of the United States and have experience in a field directly related
• U.S. citizenship
Aviation Administration, Department
to aviation. An officer on active duty in an armed force may be appointed as Deputy
• Related experience
of Transportation (IV)
Administrator. However, if the Administrator is a former regular officer of an armed
• Military restriction
force, the Deputy Administrator may not be an officer on active duty in an armed
force, a retired regular officer of an armed force, or a former regular officer of an
armed force. [49 U.S.C. § 106(d)(1)]
Commissioner for Education
... shall ... have substantial knowledge of programs assisted by the National Center for
• Related knowledge
Statistics, National Center for
Education Statistics. [20 U.S.C. § 9517(b)]
Education Statistics, Department of
Education (IV)
CRS-26
Position a
General Requirement or
Provision(s)
(Executive Schedule Level)
Restriction
Director of Operational Test and
... [shall be] appointed from civilian life[,] ... without regard to political affiliation and
• Apolitical appointment
Evaluation, Department of Defense
solely on the basis of fitness to perform the duties of the office of Director. [10 U.S.C.
• Fitness
(IV)
§ 139(a)]
Administrator, Economic Regulatory
... shall be, by demonstrated ability, background, training, or experience, an individual
• Related demonstrated
Administration, Department of
who is specially qualified to assess fairly the needs and concerns of all interests
ability
Energy (IV)
affected by Federal energy policy. [42 U.S.C. § 7136(a)]
• Related background
Principal Deputy Administrator,
... shall be appointed from among persons who have extensive background in
• Related background
National Nuclear Security
organizational management and are well qualified to manage the nuclear weapons,
• Related qualifications
Administration, Department of
nonproliferation, and materials disposition programs of the Administration in a manner
Energy (IV)
that advances and protects the national security of the United States. [50 U.S.C. §
2403(a)(2)]
Chief Medical Officer, Department
... shall possess a demonstrated ability in and knowledge of medicine and public health.
• Related demonstrated
of Homeland Security (IV)
[6 U.S.C. § 321e(b)
ability
• Related knowledge
Chief Financial Officers (IV)
... shall ... be appointed or designated, as applicable, from among individuals who
• Related demonstrated
possess demonstrated ability in general management of, and knowledge of and
ability
extensive practical experience in financial management practices in large governmental
• Related knowledge
or business entities. [31 U.S.C. § 901(a)(3)]
• Related experience
Inspectors General (IV)
... shall be appointed ... without regard to political affiliation and solely on the basis of
• Apolitical appointment
integrity and demonstrated ability in accounting, auditing, financial analysis, law,
• Specified character trait
management analysis, public administration, or investigations. [5 U.S.C. App. § 3(a)]
• Related demonstrated
ability
CRS-27
Position a
General Requirement or
Provision(s)
(Executive Schedule Level)
Restriction
Members, Privacy and Civil Liberties
Any individual appointed to the Board shall be appointed from among trustworthy and
• U.S. citizenship
Oversight Board, Executive Office of
distinguished citizens outside the Federal Government who are qualified on the basis of
• Specified character traits
the President (IV: daily equivalent)
achievement, experience, and independence. [P.L. 108-458, § 1061(e)(1)(C); 118 Stat.
• Not part of the federal
3687; 5 U.S.C. 601 note.]
government
• Related experience and
achievement
Members, National Indian Gaming
No individual shall be eligible for any appointment to, or to continue service on, the
• Felony conviction
Commission, Department of the
Commission, who ... has been convicted of a felony or gaming offense.... [25 U.S.C.
restriction
Interior (Rate equal to V - Chair is
§2704(b)(5)]
rate equal to IV)
Director, United States Fish and
No individual may be appointed as the Director unless he is, by reason of scientific
• Related education
Wildlife Service, Department of the
education and experience, knowledgeable in the principles of fisheries and wildlife
• Related experience
Interior (V)
management. [16 U.S.C. § 742b(b)]
• Related knowledge
Chief Scientist, National Oceanic and
... shall be an individual who is, by reason of scientific education and experience,
• Related education
Atmospheric Administration,
knowledgeable in the principles of oceanic, atmospheric, or other scientific disciplines
• Related experience
Department of Commerce (V)
important to the work of the Administration. [Reorganization Plan No. 4 of 1970, §
• Related knowledge
2(d); 15 U.S.C. § 1511 note]
Surgeon General, Public Health
... shall be appointed from individuals who (1) are members of the Regular Corps, and
• Corps membership
Service, Department of Health and
(2) have specialized training or significant experience in public health programs. [42
• Related training
Human Services b
U.S.C. § 205]
• Related experience
CRS-28
Position a
General Requirement or
Provision(s)
(Executive Schedule Level)
Restriction
United States Marshals c
Each marshal shall reside within the district for which such marshal is appointed,
• Residency requirement
except that — (1) the marshal for the District of Columbia, for the Superior Court of
• Related experience
the District of Columbia, and for the Southern District of New York may reside within
• Related education
20 miles of the district for which the marshal is appointed; and (2) any marshal
appointed for the Northern Mariana Islands who at the same time is serving as marshal
in another district may reside in such other district. [28 U.S.C. § 561(e)]
Each marshal ... should have — (1) a minimum of 4 years of command-level law
enforcement management duties, including personnel, budget, and accountable
property issues, in a police department, sheriff’s office or Federal law enforcement
agency; (2) experience in coordinating with other law enforcement agencies,
particularly at the State and local level; (3) college-level academic experience; and (4)
experience in or with county, State, and Federal court systems or experience with
protection of court personnel, jurors, and witnesses. [28 U.S.C. § 561(i)]
CRS-29
Position a
General Requirement or
Provision(s)
(Executive Schedule Level)
Restriction
United States Attorneys and Assistant
Each United States attorney shall reside in the district for which he is appointed, except
• Residency requirement
Attorneys d
that these officers of the District of Columbia, the Southern District of New York, and
the Eastern District of New York may reside within 20 miles thereof. Each assistant
United States attorney shall reside in the district for which he or she is appointed or
within 25 miles thereof. The provisions of this subsection shall not apply to any
United States attorney or assistant United States attorney appointed for the Northern
Mariana Islands who at the same time is serving in the same capacity in another
district. Pursuant to an order from the Attorney General or his designee, a United
States attorney or an assistant United States attorney may be assigned dual or
additional responsibilities that exempt such officer from the residency requirement in
this subsection for a specific period as established by the order and subject to renewal.
[28 U.S.C. 545(a)]
Source: Developed by Congressional Research Service from information obtained from the United States Code.
a. Positions are arranged by Executive Schedule Level.
b. The Surgeon General is compensated as a commissioned officer at Level O-9. (See 37 U.S.C. 201.)
c. “The majority of USMs [U.S. Marshals] enter at the GS-15 level. USMs in the General Schedule (Grade 15) start with a base rate (in 2006) of $91,507, to which is automatically
added the appropriate amount of locality pay. USMs may go to the Step 10 after six months in the position. The GS-15 Step 10 rate is $118,957 (in 2006), to which is also added
locality pay. There are 32 locality pay areas nationwide that adjust salaries from 12.52% to 28.68%. There are currently 27 Senior Level Marshal positions at some of the larger,
more complex USMS District Offices around the nation. The salary of these 27 USMs begins at $109,808 (in 2006), to which is added their locality pay. Advancement through
the Senior Level pay range to a maximum $143,000, including locality pay, is based on successful performance as USM for one year. The Deputy Attorney General is authorized
to approve this pay increase.” (U.S. Marshals Service, Office of Congressional Affairs, document providing nomination process, qualification, and job description information,
obtained Dec. 28, 2006.)
d. “ Subject to sections 5315 through 5317 of title 5, the Attorney General shall fix the annual salaries of United States attorneys, assistant United States attorneys, and attorneys
appointed under section 543 of this title at rates of compensation not in excess of the rate of basic compensation provided for Executive Level IV of the Executive Schedule set
forth in section 5315 of title 5, United States Code.” (28 U.S.C. § 548)
CRS-30
Table 2. Examples of Positions on Independent Collegial Bodies with Statutory Qualification Requirements
Agency a (Executive Schedule Level
General Requirement or
Provision(s)
of Members)
Restriction
Commodity Futures Trading
... [T]he President shall (i) select persons who shall each have demonstrated knowledge
• Demonstrated knowledge
Commission (IV - Chair is III)
in futures trading or its regulation, or the production, merchandising, processing or
in related areas, balanced
distribution of one or more of the commodities or other goods and articles, services,
among members
rights, and interests covered by this Act; and (ii) seek to ensure that the demonstrated
• Political balance on panel
knowledge of the Commissioners is balanced with respect to such areas. Not more
than three of the members of the Commission shall be members of the same political
party. [7 U.S.C. § 2(a)(2)(A)]
Consumer Product Safety
In making such appointments, the President shall consider individuals who, by reason
• Related background and
Commission (IV - Chair is III)
of their background and expertise in areas related to consumer products and protection
expertise
of the public from risks to safety, are qualified to serve as members of the
Commission. [15 U.S.C. § 2053(a)]
Not more than three of the Commissioners shall be affiliated with the same political
• Political balance on panel
party. [15 U.S.C. § 2053(c)]
Defense Nuclear Facilities Safety
The Board shall be composed of five members appointed from civilian life ... from
• Military restriction
Board (III)
among United States citizens who are respected experts in the field of nuclear safety
• U.S. citizenship
with a demonstrated competence and knowledge relevant to the independent
• Related demonstrated
investigative and oversight functions of the Board. Not more than three members of the
competence and knowledge
Board shall be of the same political party. [42 U.S.C. § 2286(b)(1)]
• Political balance on panel
CRS-31
Agency a (Executive Schedule Level
General Requirement or
Provision(s)
of Members)
Restriction
Election Assistance Commission (IV)
Each member of the Commission shall have experience with or expertise in election
• Related experience or
administration or the study of elections. [42 U.S.C. § 15323(a)(3)]
expertise
As designated by the President at the time of nomination, of the members first
• Political balance on panel
appointed — (A) two of the members (not more than one of whom may be affiliated
with the same political party) shall be appointed for a term of 2 years; and (B) two of
the members (not more than one of whom may be affiliated with the same political
party) shall be appointed for a term of 4 years.... A vacancy on the Commission shall
be filled in the manner in which the original appointment was made and shall be
subject to any conditions which applied with respect to the original appointment. [42
U.S.C. § 15323(b)]
Equal Employment Opportunity
... [T]he Equal Employment Opportunity Commission ... shall be composed of five
• Political balance on panel
Commission (IV - Chair is III)
members, not more than three of whom shall be members of the same political party.
[42 U.S.C. § 2000e-4(a)]
Export-Import Bank Board of
Of the five members of the Board, not more than three shall be members of any one
• Political balance on panel
Directors (IV - Chair is III)
political party. [12 U.S.C. § 635a(c)(2)]
Farm Credit Administration (IV-
The Board shall consist of three members, who shall be citizens of the United States
• U.S. citizenship
Chair is III)
and broadly representative of the public interest.... Not more than two members of the
• Political balance on panel
Board shall be members of the same political party. [12 U.S.C. § 2242(a)]
The President shall appoint members of the Board who — (1) are experienced or
• Related knowledge,
knowledgeable in agricultural economics and financial reporting and disclosure; (2) are
experience, or background
experienced or knowledgeable in the regulation of financial entities; or (3) have a
strong financial, legal, or regulatory background. [12 U.S.C. § 2242(e)]
CRS-32
Agency a (Executive Schedule Level
General Requirement or
Provision(s)
of Members)
Restriction
Federal Communications
Each member of the Commission shall be a citizen of the United States.... The
• U.S. citizenship
Commission (IV - Chair is III)
maximum number of commissioners who may be members of the same political party
• Political balance on panel
shall be a number equal to the least number of commissioners which constitute a
majority of the full membership of the Commission. [47 U.S.C. § 154(b)]
Federal Deposit Insurance
The management of the Corporation shall be vested in a Board of Directors consisting
• U.S. citizenship
Corporation Board of Directors (IV -
of 5 members — (A) 1 of whom shall be the Comptroller of the Currency; (B) 1 of
• Related experience for at
Chair is III)
whom shall be the Director of the Office of Thrift Supervision; and (C) 3 of whom
least one director
shall be appointed ... from among individuals who are citizens of the United States, 1
of whom shall have State bank supervisory experience.... [N]ot more than 3 of the
members of the Board of Directors may be members of the same political party. [12
• Political balance on panel
U.S.C. § 1812(a)]
Federal Election Commission (IV)
No more than 3 members of the Commission appointed under this paragraph may be
• Political balance on panel
affiliated with the same political party. [2 U.S.C. § 437c(a)(1)]
Members shall be chosen on the basis of their experience, integrity, impartiality, and
• Experience
good judgment and ... shall be individuals who, at the time appointed to the
• Specified character traits
Commission, are not elected or appointed officers or employees in the executive,
• Not part of the federal
legislative, or judicial branch of the Federal Government. [2 U.S.C. § 437c(a)(3)]
government
Federal Energy Regulatory
Not more than three members of the Commission shall be members of the same
• Political balance on panel
Commission (IV - Chair is III)
political party. [42 U.S.C. § 7171(b)(1)]
• Demonstrated ability,
The Chairman and members of the Commission shall be individuals who, by
background, training, or
demonstrated ability, background, training, or experience, are specially qualified to
experience
assess fairly the needs and concerns of all interests affected by Federal energy policy.
[42 U.S.C. § 7134]
CRS-33
Agency a (Executive Schedule Level
General Requirement or
Provision(s)
of Members)
Restriction
Federal Housing Finance Board (IV -
The directors appointed pursuant to paragraph (1)(B) shall be from among persons with
• Related extensive
Chair is III)
extensive experience or training in housing finance or with a commitment to providing
experience, training, or
specialized housing credit.... Not more than 3 directors shall be members of the same
commitment
political party. Not more than 1 appointed director shall be from any single district of
• Political balance on panel
the Federal Home Loan Bank System.... At least 1 director shall be chosen from an
• Geographic restriction
organization with more than a 2-year history of representing consumer or community
• Specified affiliation for at
interests on banking services, credit needs, housing, or financial consumer protections.
least 1 director
[12 U.S.C. § 1422a(b)]
Federal Labor Relations Authority (V
The Federal Labor Relations Authority is composed of three members, not more than 2
• Political balance on panel
- Chair is IV)
of whom may be adherents of the same political party. [5 U.S.C. § 7104(a)]
Federal Maritime Commission (IV -
Not more than three of the Commissioners shall be appointed from the same political
• Political balance on panel
Chair is III)
party. [5 U.S.C. App. Reorganization Plan No. 7 of 1961, § 102(c)]
Federal Mine Safety and Health
The Commission shall consist of five members, appointed ... from among persons who
• Related training,
Review Commission (IV - Chair is
by reason of training, education, or experience are qualified to carry out the functions
education, or experience
III)
of the Commission.... [30 U.S.C. § 823(a)]
Federal Reserve System Board of
In selecting the members of the Board, not more than one of whom shall be selected
• Geographic restriction
Governors (III - Chair is II)
from any one Federal Reserve district, the President shall have due regard to a fair
• Representation of
representation of the financial, agricultural, industrial, and commercial interests, and
specified interests
geographical divisions of the country. [12 U.S.C. § 241]
Federal Trade Commission (IV -
Not more than three of the commissioners shall be members of the same political party.
• Political balance on panel
Chair is III)
[15 U.S.C. § 41]
CRS-34
Agency a (Executive Schedule Level
General Requirement or
Provision(s)
of Members)
Restriction
Merit System Protection Board (IV -
The Merit Systems Protection Board is composed of 3 members ..., not more than 2 of
• Political balance on panel
Chair is III)
whom may be adherents of the same political party. The members of the Board shall
• Related demonstrated
be individuals who, by demonstrated ability, background, training, or experience are
ability, background,
especially qualified to carry out the functions of the Board. No member of the Board
training, or experience
may hold another office or position in the Government of the United States, except as
• Not part of the federal
otherwise provided by law or at the direction of the President. [5 U.S.C. § 1201]
government
National Credit Union
The Board shall consist of three members, who are broadly representative of the public
• Representative of public
Administration (IV - Chair is III)
interest.... Not more than two members of the Board shall be members of the same
interest
political party.... [T]he President shall give consideration to individuals who, by virtue
• Political balance on panel
of their education, training, or experience relating to a broad range of financial
• Consideration of related
services, financial services regulation, or financial policy, are especially qualified to
education, training, or
serve on the Board.... Not more than one member of the Board may be appointed to the
experience
Board from among individuals who, at the time of the appointment, are, or have
• Prior affiliation restriction
recently been, involved with any insured credit union as a committee member, director,
for all but 1 member
officer, employee, or other institution-affiliated party. [12 U.S.C. § 1752a(b)]
National Mediation Board (IV -
There is hereby established ... the “National Mediation Board”, to be composed of
• Political balance on panel
Chair is III)
three members ... not more than two of whom shall be of the same political party. [45
U.S.C. § 154]
CRS-35
Agency a (Executive Schedule Level
General Requirement or
Provision(s)
of Members)
Restriction
National Transportation Safety Board
Not more than 3 members may be appointed from the same political party. At least 3
• Political balance on panel
(IV - Chair is III)
members shall be appointed on the basis of technical qualification, professional
• Related technical
standing, and demonstrated knowledge in accident reconstruction, safety engineering,
qualifications, professional
human factors, transportation safety, or transportation regulation.
standing, and demonstrated
[49 U.S.C. § 1111(b)]
knowledge for at least 3
members
Nuclear Regulatory Commission (III
There is established an independent regulatory commission to be known as the Nuclear
• U.S. citizenship
- Chair is II)
Regulatory Commission which shall be composed of five members, each of whom
shall be a citizen of the United States. [42 U.S.C. § 5841(a)(1)]
Appointments of members ... shall be made in such a manner that not more than three
• Political balance on panel
members of the Commission shall be members of the same political party. [42 U.S.C.
§ 5841(b)(2)]
Occupational Safety and Health
The Commission shall be composed of three members who shall be appointed ... from
• Related training,
Review Commission (IV - Chair is
among persons who by reason of training, education, or experience are qualified to
education, or experience
III)
carry out the functions of the Commission under this Act. [29 U.S.C. § 661(a)]
Postal Regulatory Commission (IV -
The Postal Regulatory Commission is composed of 5 Commissioners.... [They]
• Related technical
Chair is III)
shall be chosen solely on the basis of their technical qualifications, professional
qualifications, professional
standing, and demonstrated expertise in economics, accounting, law, or public
standing, and demonstrated
administration.... Each individual appointed to the Commission shall have the
expertise
qualifications and expertise necessary to carry out the enhanced responsibilities
• Political balance on panel
accorded Commissioners under the Postal Accountability and Enhancement Act. Not
more than 3 of the Commissioners may be adherents of the same political party.
[P.L. 109-435, § 601]
CRS-36
Agency a (Executive Schedule Level
General Requirement or
Provision(s)
of Members)
Restriction
Railroad Retirement Board (IV -
One member shall be appointed from recommendations made by representatives of the
• Two members from
Chair is III)
employees and one member shall be appointed from recommendations made by
recommendations of
representatives of employers ..., in both cases as the President shall direct, so as to
specified constituent groups
provide representation on the Board satisfactory to the largest number, respectively, of
• Third member cannot be
employees and employers concerned. One member, who shall be chairman of the
from specified constituent
Board, shall be appointed without recommendation by either employers or employees
groups
and shall not be in the employment of or be pecuniarily or otherwise interested in any
employer or organization of employees. [45 U.S.C. § 231f(a)]
Securities and Exchange Commission
Not more than three ... commissioners shall be members of the same political party,
• Political balance on panel
(IV - Chair is III)
and in making appointments members of different political parties shall be appointed
through alternating
alternately as nearly as may be practicable. [15 U.S.C. § 78d(a)]
appointments
Surface Transportation Board (IV -
Not more than 2 members may be appointed from the same political party.... At any
• Political balance on panel
Chair is III)
given time, at least 2 members of the Board shall be individuals with professional
• Related professional
standing and demonstrated knowledge in the fields of transportation or transportation
standing and demonstrated
regulation, and at least one member shall be an individual with professional or business
knowledge for at least two
experience (including agriculture) in the private sector. [49 U.S.C. § 701(b)]
board members
• Private sector experience
for at least one member
Source: Developed by Congressional Research Service from information obtained from the United States Code.
a. Agencies are arranged alphabetically.