Presidential Transitions: Executive Branch Political Appointment Status

Presidential Transitions: Executive Branch Political Appointment Status

INSIGHTi
Presidential Transitions: Executive Branch
Political Appointment Status
November 24, 2020
In Section 2 of the Presidential Transition Act of 1963 (as amended; 3 U.S.C. 102 note), Congress
declared that “[t]he national interest requires that [presidential] transitions ... be accomplished so as to
assure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal
Government, both foreign and domestic.” The crux of such a transition is the transfer of executive power
from the incumbent to the President-elect. The executive’s power manifests in a variety of processes with
application to a broad range of policy areas and issues. CRS has produced a set of products examining
selected processes and policies that may be of particular interest during a presidential transition. This
Insight discusses the status of executive branch political appointments at that time. Other related products
examine clemency, executive orders, rulemaking, government records, and presidential transitions
general y.
The status of political appointees during transitions has often been of interest to Congress. In some
instances, some appointees of an outgoing President have continued to serve into a new Administration.
These appointees might not share the new President’s policy preferences or readily implement the new
Administration’s policy agenda. This dynamic usual y has arisen where the tenure of a confirmed political
appointee extends into a new Administration as a result of fixed-term provisions intended to insulate the
appointee from the policy preferences of the President. In other cases, appointees have been instal ed in
such positions in the waning days of a presidency through a recess appointment, although this practice has
not been used since 2000.
Who Must Go?
In recent years, the leadership of the federal bureaucracy has numbered more than 8,000 appointees.
Approximately 3,500 of these are political appointees, and the balance are career members of the Senior
Executive Service (SES). Political appointments general y fal into one of four categories: presidential
appointments with the advice and consent of the Senate (PAS), presidential appointments not requiring
confirmation (PA positions), noncareer SES appointments, and Schedule C appointments.
Unless otherwise specified in law, political appointees to executive branch positions usual y serve at the
pleasure of the President. That is, they serve for an indeterminate period of time and can be removed by
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the President at any time for any reason (or no stated reason). Most noncareer SES, Schedule C, and
appointees of the President alone fal into this category. Appointees to these positions usual y step down
when the appointing President leaves office, unless asked to stay by the incoming President.
Who May Stay?
Congress has sometimes set a specific term of office for a particular position, restricted the President’s
power of removal for a particular position, or both. Some removal restrictions require only that the
President inform Congress of reasons for removing an official, whereas others require that a specified
process be used or a specified threshold be met, such as “upon notice and hearing, for neglect of duty or
malfeasance in office, but for no other cause.” The use of fixed terms and removal restrictions has been
more common for positions on regulatory boards, where Congress has tried to establish a greater
independence from the President, than for positions in departments and single-headed agencies. Notably,
in a 2020 decision, the U.S. Supreme Court held that a removal restriction provision pertaining to the
director of the Consumer Financial Protection Bureau was unconstitutional. The impact of this decision
on similar provisions is not clear.
An appointee to a position with a fixed term and protection from removal may serve during more than one
presidency and is not required to step down when the appointing President leaves office; statutory
removal protections might prohibit a President from attempting to remove the appointee simply for policy
disagreements. Even where an appointee to such a position is not protected from removal, it could be
argued that the fixed term establishes the expectation that the incumbent wil be able to serve for a certain
period. Removal of such an appointee by the incoming President might entail an expenditure of political
capital.
Recess Appointments
The Constitution empowers the President to unilateral y make a temporary appointment to a PAS position
if the position is vacant and the Senate is in recess. Such an appointment, termed a recess appointment,
expires at the end of the following session of the Senate. At the longest, a recess appointment made in
early January, after the beginning of a new session of the Senate, would last until the Senate adjourns sine
die at the end of the following year, a period that could be nearly two years in duration.
Outgoing Presidents sometimes have made recess appointments during their final months in office. The
potential tenure for recess appointees to positions without removal protections is the same as it would be
if the appointee had been confirmed by the Senate; the appointee typical y leaves office with the
appointing President but may stay on at the request of the incoming President. A recess appointee to a
position with a fixed term and removal protection, however, might be able to continue to serve into a new
Administration if the term of the position permits it. This would enable a President, at the end of his
presidency, to use a recess appointment to bypass the Senate and fil a fixed-term position for a period
that would outlast his time in office by a year or more.
Developments over the last decade have decreased the likelihood that a departing President could instal a
Senate-opposed appointee using the recess appointment power, particularly where one or both chambers
are led by the party in opposition to the President. From the 110th Congress onward, it has become
common for the Senate and House to use certain scheduling practices as a means of precluding the
President from making recess appointments. The practices do this by preventing the occurrence of a
Senate recess of sufficient length for the President to be able to use his recess appointment authority. In a
2014 opinion, the U.S. Supreme Court held that the President’s recess appointment power may be used
only during a recess of 10 days or longer except under “some very unusual circumstance.”

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Author Information

Henry B. Hogue

Specialist in American National Government

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