Is it possible for a President to not fill a cabinet office? Many Republicans have campaigned against the Department of Education. Could a future Republican president “eliminate” the department by refusing to submit names to the Senate for confimation?
Because it wouldn’t have any effect. The department would still exist, and there would be an undersecretary or so that was either previously appointed or a career bureaucrat running it (note that the departments don’t shut down while the new president is running his choices through Congress). This would be a very bad idea if you wanted to eliminate the department, since you couldn’t put anything into place without going through someone who wasn’t going to agree with you.
The President couldn’t close the department by refuseing to submit names, however I believe he could close it by way of Executive Order. A plan would have to be established however that would take care of the responsibilities of the DoEd. For example, transfer of responsibilities to local and state school boards, etc.
I think it is safe to say that if the President refused to give names to the Senate, the Media would have a field day and the President would be forced into a tough position.
No, a President may not close a department through executive order. Until 1983 (or thereabouts), a president did have the power to reorganize agencies by virtue of a law passed by Congress. IIRC, this is how the EPA and NOAA were created. The law expired during the Reagan Administration and was not reauthorized.
However, cabinet departments are established by law. The President may not obviate a law that established a department (or agency) but by enactment of another law.
Back to nominations, the Vacancies Act was originally passed just after the Civil War and updated several times since then. It places some limits on how a President may fill a vacancy in a position that requires the advice and consent of the Senate. Basically, if an office opens up, either another appointed and confirmed officer, or the principal deputy of the vacant office, must take responsibilty for the vacant office.
That means that if no Secretary of Education were nominated, the responsibility would fall to the Deputy Secretary. If there were no deputy secretary, I’m not exactly sure how that would work… but my guess is that the Vacancies Act would compel the President to designate another cabinet officer (such as the Secretary of Health and Human Services) or an Assistant Secretary of Education to be the Acting Secretary of Education.
There are also time limits on how long an acting secretary may serve, but, to my recollection, those time limits are not exactly aimed at forcing the President into making a nomination, but limiting the authority of an Acting Secretary of whatever, so that the Senate remains important in the role of confirming senior officers of the Administration. I’m not sure if these time limits would actually force the President to make a nomination, or just require him to designate a different acting secretary.
(And, of course, a president has the ability under the Constitution to fill an office through recess appointments that do not require confirmation by the Senate, but those appointments only last until the end of a sessino of Congress.)