Anne Joseph O'Connell

Presidents are quite popular in administrative law these days, from Elena Kagan’s classic article, Presidential Administration, to the Supreme Court’s fixation on presidential control in its growing Appointments Clause and removal docket. As legal scholars dissect and debate the doctrinal and normative implications of presidential attention in agency decision making, we could benefit from knowing more about how that involvement actually plays out.

In Presidential Investment in the Administrative State, Nicholas Bednar and David Lewis provide critical empirical lessons for how Presidents invest strategically (or not) in agency capacity, which encompasses “the ability of an agency to perform the tasks delegated to it.” They show that Presidents are not simply public administration savants—trying only “to ensure effective policy implementation and avoid failure.” And they demonstrate that Presidents are not pure partisans—“work[ing] to increase capacity in agencies implementing policies the president likes and decrease capacity in agencies implementing policies the president opposes.” The lessons are messier.

Bednar and Lewis rely on two interesting data sources to get at “presidential effort or attention.” They “track how long it took presidents Bush, Obama, Trump, and Biden to send their first nominee to the Senate for each vacant position in their first terms.” The nomination lag provides a measure of “the priority the White House is placing on individual agencies across government, making it a useful way to evaluate where presidents make capacity investments.” And they turn to the 2020 online Survey on the Future of Government Service, answered by thousands of career and political agency executives on their views of presidential and congressional investment in their organizations.

The main lesson from Bednar and Lewis will disappoint scholars and judges touting strong presidential control as well as policy nerds seeking good governance. In short, Presidents don’t really invest much in agency capacity, though, at least, they don’t often try to destroy capacity. “[N]eglect—rather than proactive building or deconstructing of capacity—is the norm for most agencies.” (P. 2.)

Take nominations. Bednar and Lewis find that Presidents Bush, Obama, and Trump did not nominate anyone in four years for 13, 15, and 26 percent of vacant Senate-confirmed roles in federal agencies, respectively. Assuming, unrealistically, that every position got a nominee at the end of four years, it took, on average, close to 500 days for President Bush to make a nomination. That delay jumped to 520 days for President Obama and 678 days for President Trump. President Biden had not made a single pick for 40 percent of vacant top positions after 534 days.

And now consider the survey results. Bednar and Lewis tell us that “[m]ore than half of federal executives report that the White House is exerting no effort or little effort to make sure that the agency has what it needs.” (P. 10.) (The other options were some, a good bit, and a great deal of effort.) Only about one in five respondents picked a good bit or a great deal of presidential effort for their agencies.

While Bednar and Lewis focus on the White House, their findings also raise questions about Congress. When Presidents do submit picks to the Senate, it takes longer for the Senate to act, if it acts at all. While the Senate almost never votes down an agency nominee, it often returns nominations. While 16 percent of both President Ronald Reagan’s and President George H.W. Bush’s agency nominations failed to get confirmed, that number climbed to 30 percent under President Obama. It did not improve for President Trump. And although individuals are often renominated after the Senate returns their nominations, the vacancy clock keeps ticking.

The nominations that do get confirmed also take longer to do so, despite 2013 Senate rules changes requiring only a majority to advance a nomination to a confirmation vote. Delays in confirming successful nominations have doubled, jumping from 56 days under President Reagan to 112 days under President Obama (and 117 days under President Trump) and to 127 days under President Biden, according to the Partnership for Public Service. Here, the President and Congress are neglecting agency leadership.

But the political branches seem to diverge in the survey. Bednar and Lewis report in passing that “a little more than half of federal executives report that congressional committees are exerting a good bit or a great deal of effort” (Pp. 10-11) for agencies to operate successfully. We should learn more about congressional investment—as many of us often bemoan congressional dysfunction for federal agencies.

The other lessons demonstrate that presidential commitment to agencies is not uniform. Politics and policy matter. Among other findings Bednar and Lewis show:

• Presidents emphasize picks for policy jobs (i.e., positions focusing on legislation, policy planning, and law) over management roles (i.e., positions targeting “management, finances, acquisition, or personnel”). Specifically, “[a]t any point in time, presidents are 59% more likely …to make a nomination to a key policy position than other positions. In contrast, presidents are a third less likely … to nominate individuals to key management positions.” (P. 9.) Some jobs, like cabinet secretaries, combine policy and management tasks and are excluded from this analysis. In short, Presidents care more about “substantive policy than bureaucratic management.” (P. 4.)
• Presidents prioritize nominations in more ideologically aligned agencies (think EPA for Democrats and DHS for Republicans). Indeed, while it took President Obama 134 days, on average, to make selections for top jobs at the EPA, his DHS nominations waited 191 days, on average. By contrast, President Trump took, on average, 250 days for his DHS picks but 384 days for those at the EPA. Another way to think about investment is turnover in positions. There was more turnover, for instance, at the top of DHS under Trump than the EPA.
• Presidents elevate nominations in low-skilled agencies. “Agencies with the lowest skills are 78% … more likely to receive a nomination than agencies with average skills. Conversely, agencies with the highest skills are 39% less likely to receive a nomination than an agency with average skills …” (P. 9.) In the view of Bednar and Lewis, Presidents seek to avoid government failures. But it could be that Presidents know the marginal benefits to investment are greater in these agencies and look for easier payoffs. The survey showed no relationship between agency skill and perceived White House investment.
• While the nomination data did not demonstrate a clear relationship with presidential priorities or the interaction of priorities and ideology, the survey did show an interesting relationship between that interaction and perceived attention. For conservative agencies, presidential priorities increased perceived presidential investment, but for liberal agencies, such priorities decreased perceptions of White House attention. As Bednar and Lewis note, “[t]he interaction of presidential priority and ideology highlights the fact that just because something is a priority of the president does not mean the president wants to build capacity.” (P. 12.)
• In the survey, executives reported more presidential investment in entities within the Executive Office of the President and grant-making agencies (and less in independent regulatory commissions and boards). Political (as opposed to career) executives, Republicans (the survey was done in 2020), and those with more responsibility saw the most presidential attention.

We may be able to draw some simple lessons from their more complex ones. Take the White House priority for policy over management. Bednar and Lewis describe how personnel officials across recent administrations worry less about filling management positions, in part because “acting career officials often perform competently in ‘management-only positions.’” (P. 9.) Many, including Lewis and myself, have called for Congress to cut the number of Senate-confirmed positions in federal agencies. This compelling study suggests that Congress should remove the confirmation process for management roles, assuming that these positions are adequately supervised by political officials.

In justifying agency legitimacy and even judicial deference to agency actions, many legal scholars (and judges) point, in part, to both the expertise of agency career workers and the political accountability through presidential appointments of agency leaders. Capacity, for Bednar and Lewis, includes “the resources, information, and processes an agency needs to prospectively complete its tasks.” (P. 2.) This means the civil servants and political leaders, among other items. Investment in agency capacity, as Bednar and Lewis persuasively demonstrate, cannot be assumed. With Presidents featuring so large in the field of administrative law, we should take some time to see how they operate on the ground.