Actually, Colibri, the president can appoint someone to be “Acting” in an office. You’re right that typically the next person in line becomes “Acting Poohbah” whenever the Poohbah leaves office until such time as the Senate confirms the new Poohbah nominee, but presidents have filled offices with Acting officers who hadn’t been previously in line. President Clinton, for instance, made Bill Lann Lee Acting Assistant Attorney General for Civil Rights for a time; he’d wanted Lee to hold the office but his confirmation was blocked in the Senate, so Clinton just put him to work without formal confirmation (and later appointed him via recess appointment). I believe Clinton Solicitor General Walter Dellinger was actually the Acting SG for much (all?) of his time in office because Jesse Helms refused to let his nomination be voted on.
So you’re saying that if Madeleine Albright had decided to stay on after Clinton left office, she could still be Secretary of State under Bush for as long as she chose? Has something like this ever happened?
Gah, sorry, missed the “fired” bit there. I suppose my second question could still be answered, but it seems a lot less likely now that I’m reading Cliffy’s post correctly.
Couldn’t one interpret that as meaning “inferior to the President”? In that case, the S of S would qualify. Though it is of course a moot point, since even if Congress could vest that appointment entirely in the President, they have not and are not likely to do so.
The Constitution requires that certain officials be appointed “by and with the advice and consent of the Senate.” It is up to Congress to determine which positions are subject to this requirement for confirmation. I don’t have an exact number handy, but there are somewhere around 1,000 political positions that require confirmation. Many folks also don’t know that all commissioned officers of the Armed Forces, from 2nd lieutenant to 5-star general, must have their nominations approved by the Senate, as do members of the foreign service (ambassadors and diplomatic staff).
The Constitution also allows the President to fill vacancies without Senate confirmation if Congress is not in session at the time of appointment. These appointments expire at the end of each Congress (i.e., the 108th Congress with adjourn within a matter of days, and all recess appointments will then expire. Unless required by law, Presidential appointments, by in large, do not expire at the end of a Congress or the end of a Presidential term. (Certain exceptions in law exist for members of various panels or commissions (like the FCC), various sorts of supposedly non-political positions (like Chairman of the Fed), and for the mandatory retirement of other offices (like maximum ages of service for military officers))
The Vacancies Act regulates who the President may designate as an acting appointee in a particular position. Federal law states that the Preident may NOT choose anyone he likes to serve for positions that require confirmation. If an appointee steps down, there are only three types of people that the President may choose to fill the position: the first assistant to the position vacated; another official who has received Senate confirmation for a different position; or someone above a GS-15 pay level, provided they have been with the agency for more than 90 days. There are also time limits that prevent an acting appointee from holding the position for too long, but those limts get really complicated. The Vacancies Act has been on the books since the Civil War, but it has been amended from time to time.
Clarification: in paragraph 2, in which I say that Presidential appointments do not expire at the end of a term, I mean that appointments confirmed by the Senate generally do not expire; but recess appointments do expire. Apologies for any confusion.
And sorry, there are on the order of 524 Senate confirmed positions in the Executive Branch. Memory was off by quite a bit.
Sure, Henry Kissinger was an example of a Secretary of State who remained in office under two different Presidents. James Wilson was Secretary of Agriculture for sixteen consecutive years (1897-1013) and served under three Presidnets.
And I believe John Adams kept most of Washington’s cabinet members. He did it to provide continuity in the new system of government, but it backfired on him. Washington’s appointees tended to view Adams as not-really-the-President, so he had terrible infighting in his adminstration (which was magnified by the fact that Adams’ chief political opponent, Tom Jefferson, was serviing as Adams’ Vice-President, since Jefferson had been the runner-up in the presidential election).
Three rejections of Clinton nominees come to mind: Zoe E. Baird was Clinton’s choice for Attorney General, and (admittedly not Cabinet positions) Lani Guinier for a Assistant Attorney General for Civil Rights and Anthony Lake was nominated for CIA Director.
Baird looked good when first nominated, but it soon came to light that she had employed an illegal alien to serve as a nanny for her children, and did not to pay the employer’s portion of the social security tax on this employee’s salary. When the information became public she apologized and paid the back taxes. Still, the Senate was disinclined to confirm her, and voted aginst consenting to her appointment.
The President had nominated law professor and civil rights activist Lani Guinier, and her confirmation hearings revealed some controversial positions with respect to minorities. Opponents produced articles she had authored calling for minorities to have their own congressional districts, and demanding that should retain veto power over any bill passed by a majority of Americans, affecting them, to which they object.
Lake was President Clinton’s National Security Advisor, and he was viewed as too dovish to head the CIA. In the wake of the Ames scandal, stronger hawkish leadership was thought necessary.
Actually, the Senate never voted on Zoe Baird’s nomination, which was withdrawn before being brought to a vote. The same is true of several other unsuccessful nominations, which were withdrawn in the face of almost certain rejection.
I must be getting old. The memory is going. I went searching for a cite to prove your ridiculous correction wrong, and was quite embarrassed to discover that you are absolutely correct. Baird’s nomination was withdrawn before a vote – a vote that, as you say, was headed for certain defeat, but that was still theoretical, not actual.
That’s all in the link I posted. But this nomination deserves particular attention:
IIRC, one of those renominations after the initial rejection was written on a napkin; something like “I nominate Caleb Cushing for Secretary of Treasury, signed, John Tyler.”
Yes, one could. Indeed, I think such an interpretation is more consistent with the language of the clause, but the law is well-established that “The Constitution for purposes of appointment very clearly divides all its officers into two classes.” United States v. Germaine, 99 U.S. 508, 509-10 (1878).
There actually is some textual support for this longstanding view. The Constitution provides that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices …” (Const., art. II, sec. 2, para. 2.) This provision appears in the paragraph that immediately precedes the paragraph in which the Appointments Clause, with its reference to “inferior Officers,” appears. The “inferior Officers” are thus inferior to the “principal Officers in each of the executive Departments” – that is, the group that is commonly known as the cabinet officers.