Filling Presidentially Appointed, Senate-Confirmed Positions in the Department of Homeland Security

Order Code RL31677

CRS Report for Congress

Received through the CRS Web

Filling Presidentially Appointed,

Senate-Confirmed Positions in the

Department of Homeland Security

Updated January 16, 2004

Henry B. Hogue

Analyst in American National Government

Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Filling Presidentially Appointed, Senate-Confirmed

Positions in the Department of Homeland Security

Summary

During consideration of the legislation creating the new Department of

Homeland Security (DHS), many observers stressed the need to mobilize a new

department quickly to respond to threats to homeland security. Yet new government

agencies often encounter substantial difficulties that lead to start-up delays. In one

study of reorganized agencies, the General Accounting Office identified delays in

obtaining key officials as one common start-up problem. Nearly all the top

policymaking positions in the new homeland security department are to be filled

through appointments by the President, with the advice and consent of the Senate.

In general, delays in filling such positions have not been uncommon, particularly at

the outset of a new Administration. Although appointment delays may raise

problems for any agency, delays for new agencies can cause major difficulties;

leadership is critical during the transition, when many decisions regarding policies,

procedures, and organizational issues must be made.

The Homeland Security Act of 2002 (P.L. 107-296) created DHS, which came

into existence on January 24, 2003. The act creates or transfers to the new department some 26 full-time, civilian, presidentially appointed positions subject to Senate

confirmation. As of January 15, 2004, the President had submitted 14 nominations

to these positions, and the Senate had confirmed 13 of these. In addition, the

President had used authority provided in the act to appoint six individuals to DHS

positions on a temporary basis. Five of these had been nominated and confirmed to

the positions after their temporary appointments. The nomination of the remaining

individual was pending in the Senate as of that date, and he was given a recess

appointment on December 26, 2003. The President had also used authority provided

in the act to appoint, without Senate confirmation, one individual who had previously

been confirmed for a similar position in another agency. The previously appointed

Commandant of the Coast Guard, Commissioner of Customs, and Administrator of

the United States Fire Administration continued to serve after their organizations

were transferred to the new department. The first Deputy Secretary had left the

position, and a replacement had been confirmed. The appointment status of the head

of the Transportation Security Administration could not be determined. A DHS

confirmation information table and organizational chart are provided.

Studies indicate that the appointment process is, on average, taking longer, and

that the selection and vetting process often takes much longer than the confirmation

process. Given the stated urgency of the new department’s business, Congress could

choose to facilitate the appointment process for DHS positions. Options for enabling

rapid appointment would include making statutory changes to streamline the vetting

process and simplifying the Senate confirmation process, particularly at the

committee level. Some possible changes, however, could prove controversial.

Related information may be found in CRS Report RL31751, Homeland

Security: Department Organization and Management — Implementation Phase, by

Harold C. Relyea. The appointment information in this report will be updated as

events warrant.

Contents

Presidentially Appointed, Senate-Confirmed Positions in the New Department . 2

The Appointment Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Selection and Nomination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Confirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Recess Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Temporary Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Departments Created Since 1965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Proposals for Appointment Process Improvement . . . . . . . . . . . . . . . . . . . . . . . . 18

Appointment Progress at the New Department and Congressional Options

for Facilitating the Appointment Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Appendix: Departments Created Since 1965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Housing and Urban Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Veterans Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

List of Figures

Figure 1. Department of Homeland Security Organizational Chart . . . . . . . . . . 10

Figure 2. Department of Homeland Security: Working Organizational Chart

Draft Provided by DHS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

List of Tables

Table 1. Initial Appointments to Presidentially Appointed, Senate-Confirmed

Positions in the Department of Homeland Security . . . . . . . . . . . . . . . . . . . . 7

Table 2. Average Number of Days from Enactment of Organic Legislation

to Nomination and Confirmation of Top Officials in the Five Most Recent

New Departments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Table 3. Appointments at the Department of Homeland Security, as of

January 15, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Table 4. Initial Appointments to the New Department of Housing and

Urban Development, 1966-1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Table 5. Initial Appointments to the New Department of Transportation,

1966-1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Table 6. Initial Appointments to the New Department of Energy, 1977-1978 . . 30

Table 7. Initial Appointments to the New Department of Education,

1979-1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Table 8. Initial Appointments to the New Department of Veterans Affairs,

1989-1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Filling Presidentially Appointed,

Senate-Confirmed Positions in the

Department of Homeland Security

During consideration of the legislation creating the new Department of

Homeland Security, many observers stressed the need to mobilize any new

department quickly to respond to threats to homeland security. Yet new government

agencies often encounter substantial difficulties that lead to start-up delays. In one

study of reorganized agencies, the General Accounting Office identified delays in

obtaining key officials as one common start-up problem.1 Nearly all the top

policymaking positions in the new homeland security department will be filled

through appointments by the President, with the advice and consent of the Senate.

In general, delays in filling such positions are not uncommon, particularly at the

outset of a new Administration.2 Although appointment delays may raise problems

for any agency, delays for new agencies can cause major difficulties; leadership is

critical during the transition, when many decisions regarding policies, procedures,

and organizational issues must be made.

What are the Senate-confirmed positions in the new department? How long is

it likely to take to fill these positions? What progress has been made on filling these

positions? This report addresses these questions by identifying the positions,

describing the appointment process, discussing the time required for the initial

appointments to the last five new departments, describing proposals for improving

the process, discussing the prospects for, and status of, the appointments to the new

department, and discussing some options available should Congress wish to facilitate

the process.

1

U.S. General Accounting Office, Implementation: The Missing Link in Planning

Reorganizations, GAO/GGD-81-57, Mar. 20, 1981. The other main start-up problems the

report identified were delays in obtaining needed staff, insufficient funding that necessitated

additional budget requests, inadequate office space, and delays in establishing support

functions.

2

See, for example, CRS Report RL31054, Nominations and Confirmations to Policy

Positions in the First 100 Days of the George W. Bush, William J. Clinton, and Ronald W.

Reagan Administrations, by Rogelio Garcia.

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Presidentially Appointed, Senate-Confirmed

Positions in the New Department

The principal officers in a department are established in the department’s

organic legislation or reorganization plan.3 Currently, more than 1,200 presidentially

appointed civilian executive or legislative branch positions require Senate

confirmation (PAS positions).4 More than 330 of these are in the 14 previously

existing executive departments. Within federal departments, the first four levels —

secretary, deputy secretary, under secretary, and assistant secretary — are nearly

always PAS positions. Some other officers, including the chief financial officer, the

inspector general, and the general counsel, are also routinely subject to confirmation.

The persons filling these positions are generally considered to be the top policy

decision makers in the federal government, having the responsibility to implement

statutes.

The Homeland Security Act of 2002 (P.L. 107-296) created the Department of

Homeland Security (DHS), which came into existence on January 24, 2003.5 The act

creates positions within, and transfers existing statutory positions to, the new

department. Some of these positions, including most of the principal policymaking

positions, are PAS positions. Other appointments are to be made without Senate

confirmation, either by the President or the new secretary. In other cases, the

appointment authority is not specified in the law. The appointments of concern in

this report are the full-time civilian PAS positions within the new department.6

The act also called for the submission, by the President, of a reorganization plan

not later than 60 days after enactment of the new law. The President released such

a plan the day he signed the act, and transmitted a modification of the plan to

Congress two months later. The plan and modification provide more specific details

concerning the proposed implementation of the act.7 Among other things, the plan

3

For information on the appointment status of presidentially appointed, Senate-confirmed

positions within the other executive departments, see CRS Report RL31346, Presidential

Appointments to Full-Time Positions in Executive Departments During the 107th Congress,

2001-2002, by Henry B. Hogue.

4

U.S. Congress, Senate Committee on Governmental Affairs, Policy and Supporting

Positions, committee print, 106th Cong., 2nd sess., Nov. 8, 2000, S. Prt. 106-54, (Washington:

GPO, 2000). Hereafter referred to as Plum Book 2000.

5

P.L. 107-296, Nov. 25, 2002; 116 Stat. 2135. H.R. 5005, the Homeland Security Act of

2002, as amended, was passed by the Senate on Nov. 19. The Senate amendments were

agreed to by the House on Nov. 22, 2002. The bill was signed into law by President George

W. Bush on Nov. 25, 2002.

6

The full range of statutory positions is identified and discussed in CRS Report RL31492,

Homeland Security: Components and Management Positions for the New Department

(archived), by Henry B. Hogue.

7

U.S. President (George W. Bush), “Department of Homeland Security Reorganization

Plan,” Nov. 25, 2002. The plan may be found at [http://www.whitehouse.gov/news/

releases/2002/11/reorganization_plan.pdf], visited Oct. 28, 2003; U.S. President (George

(continued...)

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provides a timetable for the transfer of entities and functions into the new

department. All transfers were to be completed by September 30, 2003. This

timetable may have affected the timing of appointments to some of the department’s

PAS positions.

Table 1 identifies PAS positions the act creates in, or transfers to, the new

department. They are secretary, deputy secretary, five under secretaries, Director of

the Bureau of Citizenship and Immigration Services, Commissioner of Customs, 12

assistant secretaries, general counsel, inspector general, Commandant of the Coast

Guard, and Director of the Office for Domestic Preparedness. The table provides the

section of the act in which each position is established, the pay level of the position,

and nomination and confirmation information as of January 15, 2004.

Under the Homeland Security Act, most of the functions of four agencies that

had PAS positions have been transferred into the new department. The four

organizations are the Transportation Security Administration (TSA) and the U.S.

Coast Guard from the Department of Transportation (DOT), the U.S. Customs

Service from the Department of the Treasury, and the Federal Emergency

Management Agency (FEMA).8

The appointment of the Commandant of the Coast Guard was provided for by

law prior to the Homeland Security Act, and the act specifically provides that the

appointment process will continue to follow prior law. The Commissioner of

Customs, which has been a PAS position at Level III of the Executive Schedule in

the Department of the Treasury, is to maintain that status in the new department. The

previously appointed commandant and commissioner have continued to serve after

the transfer of their respective organizations to the new department.

9

The act does not provide for the transfer or continuation of any of the FEMA

PAS positions. It does, however, have a provision that might apply to these

positions:

Except as otherwise provided in this Act, whenever all the functions vested by

law in any agency have been transferred pursuant to this Act, each position and

office the incumbent of which was authorized to receive compensation at the

7

(...continued)

W. Bush), “Letter to Congressional Leaders Transmitting the Reorganization Plan

Modification for the Department of Homeland Security,” Weekly Compilation of

Presidential Documents, vol. 39, Jan. 30, 2003, p. 136.

8

According to the President’s “Department of Homeland Security Reorganization Plan,”

released on Nov. 25, 2002, these four organizations were to be transferred from their present

location to the new department on Mar. 1, 2003. The plan may be found at

[http://www.whitehouse.gov/news/releases/2002/11/reorganization_plan.pdf], visited Oct.

29, 2003. This list does not include the Immigration and Naturalization Service (INS),

which was to be abolished once its functions were transferred, as provided for in the act.

(P.L. 107-296, Sec. 471(a).)

9

14 U.S.C. 44.

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rates prescribed for an office or position at level II, III, IV, or V, of the Executive

Schedule, shall terminate.10

Consequently, the United States Fire Administration Reauthorization Act of

2003 included a section that provided that

Section 1513 of the Homeland Security Act of 2002 (6 U.S.C. 553) does not

apply to the position or office of Administrator of the United States Fire

Administration, who shall continue to be appointed and compensated as provided

by section 5(b) of the Federal Fire Prevention and Control Act of 1974 (15

U.S.C. 2204(b)).11

Because this provision maintains the U.S. Fire Administrator as a PAS position, the

position is included in Table 1. The incumbent at the time of the transfer of FEMA

into DHS continued to serve in the office as of January 15, 2004.

As of January 15, 2004, definitive information concerning the current

appointment status of the head of the Transportation Security Administration (TSA)

was not available from DHS. The Aviation and Transportation Security Act,12 which

created TSA, provided for a PAS position, Under Secretary of Transportation for

Security, at the head of the new agency. James M. Loy was confirmed for that

position on November 18, 2002, just days prior to the enactment of the Homeland

Security Act. The act transferred TSA to the new department as a “distinct entity.”13

However, the under secretary position was not explicitly transferred by the act. It

was unclear whether the statutory position was terminated by the provision discussed

above. Loy left the position to become Deputy Secretary of DHS in fall 2003, and

David M. Stone was designated Acting Administrator by DHS Secretary Tom Ridge.

As of January 15, 2004, it was not clear whether Senate confirmation was required

for a permanent appointment to the position.

The Homeland Security Act of 2002 provides that reconfirmation by the Senate

is not required for “any officer whose agency is transferred to the Department

pursuant to this act and whose duties following such transfer are germane to those

performed before such transfer.”14 Michael D. Brown was appointed as Under

Secretary of Emergency Preparedness and Response under this provision.15 He had

previously been confirmed as deputy director of FEMA.

Under the Homeland Security Act, the President is authorized, during the

transition period, to designate an officer already serving in a PAS position to serve,

10

P.L. 107-296, Sec. 1513.

11

P.L. 108-169, Sec. 102.

12

P.L. 107-71; 115 Stat. 597

13

P.L. 107-296, Secs. 403(2), 423, and 424; 116 Stat. 2178, 2185.

14

P.L. 107-296, Sec. 1511(c)(2).

15

Information received from Department of Homeland Security, Office of Legislative

Affairs, via telephone conversation, Mar. 12, 2003.

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in an acting capacity, in a position within the department. The applicable provision

states that

[d]uring the transition period, pending the advice and consent of the Senate to the

appointment of an officer required by this Act to be appointed by and with such

advice and consent, the President may designate any officer whose appointment

was required to be made by and with such advice and consent and who was such

an officer immediately before the effective date of this Act (and who continues

in office) or immediately before such designation, to act in such office until the

same is filled as provided in this Act.16

The intention of the statutory language may be further clarified by report language

concerning an identical provision in an earlier version of the homeland security

legislation:

This section ... allows the President to designate incumbents in organizations

being transferred who are currently in advice and consent positions, to act in the

same capacity during the transition period, until the position is filled as provided

for in this legislation.17

As of January 15, 2004, President Bush had appointed six individuals (England,

Hutchinson, Hale, Ervin, Aguirre, and Garcia) to departmental positions under this

authority.18 Five of the six (England, Hutchinson, Hale, Aguirre, and Garcia) had

subsequently been nominated and confirmed. The one remaining (Ervin) had been

nominated but not confirmed, and he had received a recess appointment from the

President on December 26, 2003.19 One of the five who were confirmed (England)

subsequently left the department.20

Figure 1 and Figure 2 show two different unofficial organizational diagrams

for DHS. The chart in Figure 1 was created based on information from the

Homeland Security Act of 2002, the President’s reorganization plan, a preliminary

16

P.L. 107-296, Sec. 1511(c)(1); 116 Stat. 2309.

17

U.S. Congress, House Select Committee on Homeland Security, Homeland Security Act

of 2002, report to accompany H.R. 5005, 107th Cong., 2nd sess., H.Rept. 107-609,

(Washington: GPO, 2002), p. 127.

18

U.S. President (George W. Bush), “Digest of Other White House Announcements,”

Weekly Compilation of Presidential Documents, vol. 39, Jan. 27, 2003, p. 145; U.S.

President (George W. Bush), “Digest of Other White House Announcements,” Weekly

Compilation of Presidential Documents, vol. 39, Feb. 6, 2003, p. 171; additional information

received from Department of Homeland Security, Office of the Deputy Secretary, via

telephone conversation, Jan. 28, 2003.

19

20

Ervin’s recess appointment expires at the end of the second session of the 108th Congress.

England’s departure from the deputy secretary position was announced on Aug. 22, 2003.

He was subsequently nominated and confirmed to be Secretary of the Navy, and he was

sworn in on Oct. 1, 2003. On Nov. 5, 2003, President Bush nominated James M. Loy to be

the new deputy secretary at DHS.

CRS-6

organizational chart released by DHS,21 a DHS news release discussing the

President’s modification to the reorganization plan,22 other DHS news releases,

discussions with DHS officials, the Senate nominations database of the Legislative

Information System,23 the Weekly Compilation of Presidential Documents, and news

releases from the White House Web site. Among other things, it shows the

organizational location of entities that have been transferred to, or created in, DHS

and the new department’s PAS positions.

Figure 2 shows an unofficial organizational chart provided by DHS. This chart

shows some of the developing organizational units in the new department. In

addition, the officials heading each office are identified.

21

See [http://www.dhs.gov/interweb/assetlibrary/DHS_Org_Chart.ppt], visited Oct. 28,

2003.

22

“Border Reorganization Fact Sheet,” at [http://www.dhs.gov/dhspublic/interapp/

press_release/press_release_0073.xml], visited Oct. 28, 2003. The modification was

transmitted to Congress on Jan. 30, 2003. U.S. President (George W. Bush), “Letter to

Congressional Leaders Transmitting the Reorganization Plan Modification for the

Department of Homeland Security,” Weekly Compilation of Presidential Documents, vol.

39, Jan. 30, 2003, p. 136.

23

See [http://www.congress.gov/nomis/], visited Oct. 28, 2003.

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Table 1. Initial Appointments to Presidentially Appointed,

Senate-Confirmed Positions in the Department of Homeland Security

Position [Section of P.L. 107-296]

Nominee or Intended

Nominee Announced

by the White House

Executive

Schedule

Levela

Date

Nomination

Received in

the Senate

Date

Confirmed

by the

Senate

Days Elapsed

from

Enactmentb to

Nomination

Days Elapsed

from

Nomination to

Confirmationc

Days Elapsed

from

Enactmentb to

Confirmationc

Secretary [102(a)]

Thomas J. Ridge

I

01/07/03

01/22/03

43

15

58

Deputy Secretary [103(a)(1)]

Gordon Englandd,e

II

01/07/03

01/30/03

43

23

66

Under Secretary for Information Analysis and

Infrastructure Protection [103(a)(2)]

Frank Libutti

III

04/28/03

06/23/03

154

56

210

Under Secretary for Science and Technology

[103(a)(3)]

Charles E. McQueary

III

02/14/03

03/19/03

81

33

114

Under Secretary for Border and Transportation

Security [103(a)(4)]

Asa Hutchinsond

III

01/10/03

01/23/03

46

13

59

Under Secretary for Emergency Preparedness

and Response [103(a)(5)]

Michael D. Brown f

III

—

—

—

—

—

Under Secretary for Management [103(a)(7)]

Janet Haled

III

01/21/03

03/06/03

57

44

101

III or IVh

03/11/03

06/19/03

106

100

206

Director, Bureau of Citizenship and Immigration Eduardo Aguirre Jr.g

Services [103(a)(6) and 451(a)(2)]

Commissioner of Customs [411(b)]

Robert Bonneri

III

—

—

—

—

—

Assistant Secretary [103(a)(8)] (for the Bureau

of Immigration and Customs Enforcement)j

Michael J. Garciaj

IV

03/26/03

11/25/03

121

213

334

Assistant Secretary [103(a)(8)] (for Border and

Transportation Security Policy)

C. Stewart Verdery Jr.

IV

04/10/03

06/19/03

136

70

206

IV

06/26/03

10/03/03

213

68

281

Assistant Secretary [103(a)(8)] (Plans, Programs Penrose C. Albright

and Budgets)

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Position [Section of P.L. 107-296]

Nominee or Intended

Nominee Announced

by the White House

Executive

Schedule

Levela

Assistant Secretary [103(a)(8)]

IV

Assistant Secretary [103(a)(8)]

IV

Assistant Secretary [103(a)(8)]

IV

Assistant Secretary [103(a)(8)]

IV

Assistant Secretary [103(a)(8)]

IV

Assistant Secretary [103(a)(8)]

IV

Assistant Secretary [103(a)(8)]

IV

Assistant Secretary [103(a)(8)]

IV

Assistant Secretary [103(a)(8)]

IV

Date

Nomination

Received in

the Senate

Date

Confirmed

by the

Senate

Days Elapsed

from

Enactmentb to

Nomination

Days Elapsed

from

Nomination to

Confirmationc

Days Elapsed

from

Enactmentb to

Confirmationc

07/31/03

154

94

248

General Counsel [103(a)(9)]

Joe D. Whitley

IV

04/28/03

Inspector General [103(b)]

Clark Kent Ervind

(recess appointment

12/26/03)k

IV

01/10/03

Commandant of the Coast Guard [103(c)]

Thomas H. Collinsi

Grade of

admiral while

serving (14

U.S.C. 44)

—

—

—

—

—

Director, Office for Domestic Preparedness

[430(b)]

C. Suzanne Mencer

not specified

06/16/03

10/03/03

203

78

281

United States Fire Administrator [P.L. 108-169,

Sec. 102]

R. David Paulisoni

IV

—

—

—

—

—

46

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a. Compensation, where specified, is stipulated either in the section creating the position or in Sec. 1702.

b. The Homeland Security Act of 2002 (P.L. 107-296), which created the Department of Homeland Security, was signed into law on Nov. 25, 2002.

c. The 31 days falling within the August 2003 recess are not included in these numbers.

d. On Jan. 27, 2003, President Bush announced his intention to designate England, Hutchinson, Hale, and Ervin as acting officials in their intended positions. (U.S. President (George

W. Bush), “Digest of Other White House Announcements,” Weekly Compilation of Presidential Documents, vol. 39, Jan. 27, 2003, p. 145.) These actions were taken under Sec.

1511(c)(1) of the act. (Information received from Department of Homeland Security, Office of the Deputy Secretary, via telephone conversation, Jan. 28, 2003.) England,

Hutchinson, and Hale were later confirmed as shown.

e. England’s departure from this position was announced on Aug. 22, 2003. He was subsequently nominated and confirmed to be Secretary of the Navy, and he was sworn in on Oct.

1, 2003. On Oct. 23, 2003, President Bush designated James M. Loy to hold the deputy secretary position at DHS on an acting basis. Subsequently, on Nov. 5, 2003, the President

nominated Loy to hold the position on a permanent basis, and the Senate confirmed him on Nov. 25, 2003. This nomination is not shown on this table because it is not an initial

appointment to the position.

f. According to DHS sources, Brown was appointed under Sec. 1511(c)(2) of the act, which provides that reconfirmation by the Senate is not required by the law for “any officer whose

agency is transferred to the Department pursuant to this act and whose duties following such transfer are germane to those performed before such transfer.” He was previously

confirmed as deputy director of the Federal Emergency Management Agency (FEMA). (Information received from Department of Homeland Security, Office of Legislative

Affairs, via telephone conversation, Mar. 12, 2003.) Nonetheless, as late as Mar. 3, 2003, Brown was referred to as an acting under secretary in a FEMA press release. See

[http://www.fema.gov/nwz03/nwz03_054.shtm], visited Oct. 28, 2003.

g. On Feb. 6, 2003, the President announced his intention to designate Aguirre as Acting Director of the Bureau of Citizenship and Immigration Service. (U.S. President (George W.

Bush), “Digest of Other White House Announcements,” Weekly Compilation of Presidential Documents, vol. 39, Feb. 6, 2003, p. 171.) This action was taken under Sec.

1511(c)(1) of the act. (Information received from Department of Homeland Security, Office of Legislative Affairs, via telephone conversation, Mar. 12, 2003.) Aguirre has since

been nominated and confirmed for that position.

h. The compensation for the Director of the Bureau of Citizenship and Immigration Services is not clear in the act and could not be determined from contacts with DHS officials.

Although it is set at Level III by Sec. 1702, it is also linked, by Sec. 451, with the pay for the Assistant Secretary of the Bureau of Border Security. The compensation for Assistant

Secretaries is set at Level IV by Sec. 1702.

i. The previously appointed Commissioner of Customs (Bonner), Commandant of the Coast Guard (Collins), and U.S. Fire Administrator (Paulison) continued to serve after the transfer

of their respective organizations to the new department. The Commissioner of Customs now heads the Bureau of Customs and Border Protection in the Directorate for Border

and Transportation Security. “Border Reorganization Fact Sheet,” at [http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0073.xml], visited Oct. 28, 2003.

j. The Bureau of Border Security was reorganized under the modification of the President’s reorganization plan and renamed the Bureau of Immigration and Customs Enforcement.

The statutory position of Assistant Secretary of the Bureau of Border Security was renamed the Assistant Secretary of the Bureau of Immigration and Customs Enforcement.

“Border Reorganization Fact Sheet,” at [http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0073.xml], visited Oct. 28, 2003. On Mar. 11, 2003, the President

announced his intention to designate Garcia as Acting Assistant Secretary of the Bureau of Immigration and Customs Enforcement. “Personnel Announcement,” at

[http://www.whitehouse.gov/news/releases/2003/03/20030311-22.html], visited Oct. 28, 2003.

k. Ervin’s recess appointment expires at the end of the second session of the 108th Congress.

CRS-10

Figure 1. Department of Homeland Security Organizational Chart

(positions requiring confirmation are shaded)

Secretary (1)

Deputy Secretary (2)

(1) Thomas J. Ridge

(2) James M. Loy

(3) Joe D. Whitley

Special Assistant to the Secretary

Secret Service

Office for State & Local Government Coordination

Director of Shared Services

General Counsel (3)

Office for Civil Rights and Civil Liberties

Counternarcotics Officer

Office of International Affairs

Bureau of Citizenship and

Immigration Services

Director (6)

(15) Penrose C. Albright

(16) Michael J. Garcia

(17) R. David Paulison

Legislative Affairs

Inspector General (4)

Public Affairs

U.S. Coast Guard - Commandant (5)

Privacy Officer

Not to exceed 9 more Assistant Secretaries

Office for National Capital Region

Small & Disadvantaged Business

Executive Secretary

Chief of Staff

Office of Citizenship

Legal Advisor

Budget Officer

Chief of Policy and Strategy

Under Secretary for Information Analysis &

Infrastructure Protection (7)

Critical Infrastructure

Assurance Office from

DOC

Local

Ombudsmen

Joint Interagency Homeland Security Task Force

(4) Clark Kent Ervin

(5) Thomas H. Collins

(6) Eduardo Aguirre, Jr.

(7) Frank Libutti

(8) Charles E. McQueary

(9) Asa Hutchinson

(10) Janet Hale

(11) Michael D. Brown

(12) C. Suzanne Mencer

(13) C. Stewart Verdery, Jr.

(14) Robert Bonner

Assistant Secretary for

Infrastructure Protection

Citizenship and Immigration

Services Ombudsman

Assistant Secretary for

Information Analysis

Under Secretary for Science

& Technology (8)

Under Secretary for Border &

Transportation Security (9)

Four chemical, biological,

nuclear, & life science

activities from DOE

Transportation Security

Administration

Lawrence Livermore National

Laboratory - advanced scientific

Federal Computer

Incident Response

Center from GSA

Energy Security &

Assurance Program

from DOE (Including

National Infrastructure

Simulation & Analysis

Center

National Infrastructure

Protection Center from

FBI

National

Communications

System from DOD

National Technology

Guard "NET Guard"

Office for Plans, Programs

and Budgets

Assistant Secretary(15)

computing research program &

activities

Technology Clearinghouse

Environmental

Measurements Laboratory

Plum Island Animal Disease

Center from USDA

Office for National

Laboratories

National Bio-Weapons

Defense Analysis Center

from DOD

Homeland Security Science

& Technology Advisory

Committee

Homeland Security Advance

Research Projects Agency

(HSARPA)

Office for Domestic

Preparedness from DOJ

Director (12)

Under Secretary for

Management (10)

Chief Financial

Officer

Chief Information

Officer

Chief Human

Capital Officer

Under Secretary for Emergency

Preparedness & Response (11)

Office of Emergency

Preparedness from HHS

National Disaster Medical

System from HHS

Visa Issuance Regulatory

Responsibilities

Metropolitan Medical

Response System from

HHS

Federal Protective

Service from GSA

Strategic National

Stockpile from HHS

Assistant Secretary for

Border & Transportation

Security Policy (13)

Bureau of Customs &

Border Protection

Commissioner of Customs

(14)

Federal Law Enforcement

Training Center from

Treasury

Bureau of Immigration &

Customs Enforcement

Assistant Secretary (16)

Other Units Created Within the

Department - Involving or

Appointed by the Secretary

Technology Advisory

Committee

Homeland Security

Institute

Transportation Security

Oversight Board

Nuclear Incident

Response Team

National Domestic

Preparedness Office from

FBI

Ag. Quarantine Insp.,

INS Insp., Border Patrol,

Customs Insp.

INS & Customs

Enforcement/Investigations

Federal Protective Service

Legal Advisor

Chief of Policy &

Strategy

FIRESAT - Integrated

Hazard Information

System from NOAA

Revised

01/15/04

Domestic Emergency

Support Teams/DOJ

Federal Emergency

Management Agency

United States

Fire Administration (17)

CRS-11

Figure 2. Department of Homeland Security: Working Organizational Chart Draft Provided by DHS

Secretary (Tom Ridge)

-----------------------------------Deputy Secretary

(James M. Loy)

Executive Secretary

(Ken Hill)

Legislative Affairs

(Pam Turner)

Public Affairs

(Susan Neely)

State & Local Coord.

(Josh Filler)

Private Sector

(Al Martinez-Fonts)

NCRC

(Vacant)

Shared Services

(Vacant)

Citizen & Imm. Svc.

Ombudsman

(Prakash Kahtri)

BCIS

(Eduardo Aguirre)

HSAC

(Chris Furlow)

MGMT

(Janet Hale)

IAIP

(Gen. Frank Libutti)

EP&R

(Mike Brown)

Chief of Staff

(Duncan Campbell)

S&T

(Charles McQueary)

BTS

(Asa Hutchinson)

Small Business

(Kevin Boshears)

Privacy Officer

(Nuala Kelly)

Administration

(Mike Dorsey)

Programs, Plans,

Budget

(Parney Albright)

TSA

(Rear Adm. David Stone)

CFO

(Andrew Maner)

Research & Dev.

(Maureen McCarthy)

CBP

(Robert Bonner)

HCO

(Ron James)

HSARPA

(David Bolka)

CIO

(Steve Cooper)

Security

(Jack Johnson)

CPO

(Greg Rothwell)

Systems

Engineering &

Development

(John Kubricky)

ICE

(Michael Garcia)

USCG

(Adm. Tom Collins)

USSS

(Ralph Basham)

Inspector General

(Clark Ervin)

FLETC

(Connie Patrick)

Office for Domestic

Preparedness

(S. Suzanne Mencer)

Office for Border and

Transportation Security

Policy

(C. Stewart Verdery, Jr.)

Civil Rights & Civil

Liberties

(Daniel Sutherland)

International Affairs

(Cris Arcos)

Counter Narcotics

(Roger Mackin)

General Counsel

(Joe Whitley)

Source: Received electronically from DHS on 10/27/03 and updated via telephone calls with DHS on 10/30/03, 12/9/03, 1/7/04, and 1/16/04.

CRS-12

The Appointment Process

The power to appoint the principal officers of the United States is shared by the

President and the Senate.24 The Constitution (Article II, Section 2, clause 2) creates

this arrangement, directing that 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 ....

The Constitution further empowers Congress to “by Law vest the Appointment of

such inferior Officers, as they think proper, in the President alone,” the courts, or

department heads. The distinction between principal and lower offices has been

statutorily defined with the creation of each new office, and Congress has the ability

to refine this definition further when shaping legislation.

The appointment process consists of three stages — selection and nomination,

confirmation, and appointment. The President has the authority to make a nomination

for a position requiring confirmation (PAS position), but, when making his selection,

he must consider how it will fare in the confirmation process. The Senate confirms

most nominations, but no President can safely assume that his nominees will be

approved routinely.

Selection and Nomination. First, the President selects a nominee and sends

the nomination to the Senate. There are a number of steps in the President’s selection

for most Senate-confirmed positions. First, with the assistance of the White House

Office of Presidential Personnel, the President selects a candidate for the position.

The candidate then prepares and submits several forms: the “Public Financial

Disclosure Report” (Standard Form (SF) 278), the “Questionnaire for National

Security Positions” (SF 86), and the White House “Personal Data Statement

Questionnaire.” The Office of the Counsel to the President oversees the clearance

process, with background investigations conducted by the Federal Bureau of

Investigation (FBI), Internal Revenue Service (IRS), Office of Government Ethics

(OGE), and ethics official for the agency to which the candidate is to be appointed.

If conflicts are found during the background check, OGE and the agency ethics

officer may work with the candidate to mitigate the conflicts. Once the Counsel has

cleared the candidate, the nomination is ready to be submitted to the Senate. The

selection and vetting stage is often the longest part of the appointment process. There

can be lengthy delays, particularly if many candidates are being processed, as they are

at the beginning of an Administration, or if conflicts need to be resolved. Candidates

for higher level positions are often accorded priority in this process.

A nominee has no legal authority to assume the duties and responsibilities of the

position; the authority comes with Senate confirmation and presidential appointment.

24

A succinct historical and contemporary overview of the appointment power is found in

Louis Fisher, “Appointment Powers,” in his Constitutional Conflicts between Congress and

the President, 4th ed. (Lawrence, KS: University Press of Kansas, 1997), pp. 22-48.

CRS-13

A nominee who is hired as a consultant while awaiting confirmation may serve only

in an advisory capacity. If circumstances permit and conditions are met, the

President may give the nominee a temporary appointment under the Vacancies Act

or a recess appointment to the position (see below).25 Both types of appointment

confer upon the appointee the legal authority to carry out the duties of the office.

Recess appointments may have political consequences, however, particularly if

Senators perceive that an appointment is an effort to circumvent their constitutional

role.

Confirmation. In the confirmation stage, the Senate determines whether or

not to approve a nomination. The way the Senate acts on a nomination depends

largely on the importance of the position involved, existing political circumstances,

and policy implications. Generally, the Senate shows particular interest in the

nominee’s views and how they are likely to affect public policy.26 Nominations are

referred to the appropriate committee, where they generally receive a hearing. They

are then usually reported back to the Senate, where they are taken up and voted upon.

Most uncontroversial nominations proceed through the process in a routine, timely

fashion. Nominations can, however, stall or, in effect, die at any point. This is more

likely to happen to controversial nominations. Sometimes, however, Senators may

block uncontroversial nominations to gain leverage as part of a strategy to move

unrelated legislation or nominations.

The median length of time a departmental nomination spends in the Senate has

grown in recent years from 38 days during the 101st Congress (1989-1990) to 87 days

during the 106th Congress (1999-2000). Even with this lengthening confirmation

process, the nomination’s time in the Senate is typically much shorter than the time

taken by the President to select and vet a candidate for the position.

Appointment. In the final stage, the confirmed nominee is given a

commission signed by the President, with the seal of the United States affixed

thereto, and is sworn into office. The President may sign the commission at any time

after confirmation. Under unusual circumstances, he may not sign it at all, thus

preventing the appointment. Once the appointee is given the commission and sworn

in, he or she has full authority to carry out the responsibilities of the office.

Recess Appointments27

Ordinarily, there are two ways, under specific circumstances, that the President

may make a limited-term appointment without Senate confirmation: by temporary

25

See also CRS Report RS21412, Limited-Term Appointments to Presidentially Appointed,

Senate-Confirmed Positions, by Henry B. Hogue.

26

G. Calvin Mackenzie, The Politics of Presidential Appointments (New York: The Free

Press, 1981), pp. 97-189.

27

For a further discussion of recess appointments, see CRS Report RS21308, Recess

Appointments: Frequently Asked Questions, by Henry B. Hogue. For a list of recess

appointments during the Clinton presidency, see CRS Report RL30821, Recess

Appointments Made by President Clinton, by Rogelio Garcia.

CRS-14

appointment under the Vacancies Act or by recess appointment. The President’s

authority to make recess appointments is conferred by the Constitution, which states

that “[t]he President shall have Power to fill up all Vacancies that may happen during

the Recess of the Senate, by granting Commissions which shall expire at the End of

their next Session.”28 The President may make such an appointment either during a

within-session recess (intrasession recess appointment) or between sessions

(intersession recess appointment). Intrasession recess appointments have sometimes

provoked controversy in the Senate, and there is also an academic literature that has

drawn their legitimacy into question.29 Recess appointments expire at the end of the

next session of Congress. As a result, a recess appointment may last for less than a

year, or nearly 2 years, depending on when the appointment is made.

Presidents have occasionally used the recess appointment power to circumvent

the confirmation process. In response, Congress has placed restrictions on the

President’s authority to make recess appointments. Under 5 U.S.C. 5503(a), if the

position to which the President makes a recess appointment falls vacant while the

Senate is in session, the recess appointee may not be paid from the Treasury until he

or she is confirmed by the Senate. The salary prohibition does not apply: (1) if the

vacancy arose within 30 days before the end of the session; (2) if a nomination for

the office (other than the nomination of someone given a recess appointment during

the preceding recess) was pending when the Senate recessed; or (3) if a nomination

was rejected within 30 days before the end of the session and another individual was

given the recess appointment. A recess appointment falling under any one of these

three exceptions must be followed by a nomination to the position not later than 40

days after the beginning of the next session of the Senate.30 For this reason, when a

recess appointment is made, the President generally submits a new nomination for

the nominee even when an old nomination is pending. In addition, although recess

appointees whose nominations to a full term are subsequently rejected by the Senate

may continue to serve until the end of their recess appointments, a provision of the

Treasury and General Government Appropriations Act may prevent them from being

paid after their rejection.31

28

Art. 2, Sec. 2, cl. 3 of the Constitution.

29

Regarding Senate controversy, see Sen. George Mitchell, “The Senate’s Constitutional

Authority to Advise and Consent to the Appointment of Federal Officers,” Congressional

Record, vol. 139, July 1, 1993, p. 15266; and Senate Legal Counsel, “Memorandum of

United States Senate as Amicus Curiae in Support of Plantiffs’ Motion, and in Opposition

to Defendants’ Motions, for Summary Judgment on Count Two,” U.S. District Court for the

District of Columbia, Mackie v. Clinton, C.A. No. 93-0032-LFO, Congressional Record,

vol. 139, July 1, 1993, pp. 15267-15274. For academic literature, see, for example, Michael

A. Carrier, “When Is the Senate in Recess for Purposes of the Recess Appointments

Clause?” Michigan Law Review, vol. 92, June 1994.

30

Congress placed limits on payments to recess appointees as far back as 1863. The current

provisions date from 1940 (ch. 580, 54 Stat. 751; 5 U.S.C. 56, revised, and recodified at 5

U.S.C. 5503, by P.L. 89-554, 80 Stat. 475). For a legal history and overview of recess

appointments, see CRS Report 87-832 A, Recess Appointments: Legal Overview

(Archived), by Richard C. Ehlke.

31

P.L. 107-67, Sec. 609. The provision reads, “No part of any appropriation for the current

(continued...)

CRS-15

Temporary Appointments

The second way a President may, under some circumstances, make a limitedterm appointment without Senate confirmation is by temporary appointment under

the Vacancies Act. Congress has provided limited statutory authority for the

temporary filling of vacant positions requiring Senate confirmation under the Federal

Vacancies Reform Act of 1998.32 When an executive agency position requiring

confirmation becomes vacant, it may be filled temporarily in one of three ways: (1)

the first assistant to such a position may automatically assume the functions and

duties of the office; (2) the President may direct an officer in any agency who is

occupying a position requiring Senate confirmation to perform these tasks; or (3) the

President may select any officer or employee of the subject agency who is occupying

a position, for which the rate of pay is equal to or greater than the minimum rate of

pay at the GS-15 level, and who has been with the agency for at least 90 of the

preceding 365 days. The temporary appointment is for 210 days, but the time

restriction is suspended if a first or second nomination for the position is pending.

In addition, during a presidential transition, the 210-day restriction period does not

begin to run until either 90 days after the President assumes office, or 90 days after

the vacancy occurs, if it is within the 90-day inauguration period. Appointees under

the Vacancies Act are authorized to “perform the functions and duties of the office

temporarily in an acting capacity subject to [these] time limitations.”33 The act does

not apply to positions on multi-headed regulatory boards and commissions, to certain

other specific positions that may be filled temporarily under other statutory

provisions, or to new positions that have never been filled.34

Because temporary appointments under the Vacancies Act cannot be made to

new positions that have never been filled, this type of appointment is likely to be of

little use to the President for initial appointments to the new department. As noted

above, however, the Homeland Security Act gives the President specific authority for

making temporary appointments. The President is authorized, during the transition

period, to designate an officer already serving in a PAS position to serve, in an acting

capacity, in a position within the department. As discussed above and shown in

Table 1, six individuals had been designated under this authority as of January 15,

2004.35 All of the designees had also been nominated for their positions, and five of

these had been confirmed. The sixth was given a recess appointment by the President

31

(...continued)

fiscal year contained in this or any other Act shall be paid to any person for the filling of any

position for which he or she has been nominated after the Senate has voted not to approve

the nomination of said person.” This provision has been part of this annual funding activity

since at least 1950.

32

P.L. 105-277, Div. C, Title I, Sec. 151; 5 U.S.C. 3345-3349d.

33

5 U.S.C. 3345(a)(1).

34

This law superceded previous, similar statutory provisions. For more on the Vacancies

Act, see CRS Report 98-892, The New Vacancies Act: Congress Acts to Protect the Senate’s

Confirmation Prerogative, by Morton Rosenberg.

35

Table 1, notes d, g, and j.

CRS-16

on December 26, 2003. The recess appointment will expire at the end of the second

session of the 108th Congress.

The Homeland Security Act includes another unique provision concerning the

filling of PAS positions. Namely, reconfirmation by the Senate is not required by the

law for “any officer whose agency is transferred to the Department pursuant to this

Act and whose duties following such transfer are germane to those performed before

such transfer.”36 As noted above, one individual had been appointed under this

authority as of January 15, 2004.

Departments Created Since 1965

Recent experience with the creation of new departments may provide an

indication of how the nomination and confirmation process may go for the new

homeland security department. The new department faces institutional constraints

and procedures similar to those faced by other recently created departments, although

specific circumstances are also likely to shape the process.

In addition to the Department of Homeland Security, five departments have been

created since 1965: Housing and Urban Development (1965); Transportation (1966);

Energy (1977); Education (1979); and Veterans Affairs (1988).37 Table 2 provides

a summary of the average length of time taken, in each of these departments, to

nominate and confirm individuals to PAS positions. A brief description of the

creation of, and initial appointments to, each of these departments is provided in an

appendix to this report. The initial appointments to PAS positions in each of these

departments are shown in Tables 4-8, which are located at the end of the appendix.

The last column in Table 2 shows the median time elapsed from enactment of

the organic legislation to Senate confirmation. The figures range from a low of 77

days (about 2 ½ months) to 352 days (nearly a year). With the exception of the

Department of Energy, the median times grew longer from 1965 to 1988. This is

consistent with studies indicating that, in general, the appointment process has grown

longer and more complex over the last 40 years. In addition to this trend, the length

of the process has been affected by idiosyncratic circumstances. In the case of the

Department of Veterans Affairs, for example, the organic legislation was signed into

law in the last months of the Reagan presidency, and implemented at the beginning

of the presidency of George H. W. Bush. The incoming President had no authority

to submit a nomination until his inauguration, which was 87 days after the billsigning. In addition, many tasks, including a multitude of other appointments,

confronted the new administration, and this may have contributed to the relatively

lengthy appointment process for the new department.

36

37

P.L. 107-296, Sec. 1511(c)(2).

In addition, at the time the Department of Education was created, the remainder of the

Department of Health, Education, and Welfare became the Department of Health and

Human Services.

CRS-17

Table 2. Average Number of Days from Enactment of

Organic Legislation to Nomination and Confirmation of

Top Officials in the Five Most Recent New Departments38

Days Elapsed from

Enactment to

Nomination

Days Elapsed from

Nomination to

Confirmation

Days Elapsed from

Enactment to

Confirmation

Mean

Median

Mean

Median

Mean

Median

Housing and Urban

Development (1965)

216

132

7

6

223

140

Transportation

(1966)

176

130

25

20

201

163

Energy (1977)

105

45

57

37

162

77

Education (1979)

155

169

34

34

190

203

Veterans Affairs

(1988)

337

295

63

72

400

352

Department

The table also shows that the time between enactment and nomination generally

accounts for a far greater part of the appointment process than the time between

nomination and Senate confirmation; the President generally takes much longer to

submit a nomination than does the Senate to deliberate on the nomination. This

generalization is further supported by a study of departmental appointments in 1981

and 1993. The report looked at the time required to fill PAS positions in the first

year of the Reagan and Clinton Administrations. It showed that, on average, the time

the Presidents took to submit a nomination accounted for more than 75% of the total

time from inauguration to confirmation.39

38

The table shows both the mean and median number of days. The mean is the average as

it is commonly calculated. In order to calculate the mean days elapsed from enactment to

nomination, for example, for each department, the entries for all the positions in the

department were added together and then divided by the number of positions. The median

is the middle number when the “days elapsed” entries for all the positions are arranged in

numerical order. Although the mean is the more familiar kind of average, the median is

included because it diminishes the influence of a few extreme entries. For example, if the

President submits 10 of 12 nominations within 90 days (3 months) and the remaining two

within 540 days (18 months), the mean elapsed time would be 165 days, even though most

nominations were submitted far sooner than that. The median in this case would be 90 days,

which more clearly shows the time, in general, the President took to forward his

nominations.

39

CRS Report 98-641 GOV, Filling Policy Positions in Executive Departments: Average

Time Required Through Confirmation, 1981 and 1993 (Archived), by Rogelio Garcia.

CRS-18

Proposals for Appointment Process Improvement

Over the past 20 years, a number of commissions and task forces have examined

the presidential appointment process and criticized, among other things, its length

and complexity.40 These groups have issued reports with a number of varied

recommendations, including identification of nominees early in the presidential

transition process; reduction of the overall number of presidential appointees or

Senate-confirmed appointees; greater control by cabinet heads of nominee selection

for subordinates; full-time White House guidance of nominees during the nomination

and confirmation process; easing of financial disclosure, conflict-of-interest

disclosure, and post-employment restrictions; and streamlining and standardization

among the White House, FBI, and Senate committees of requirements and forms for

background and financial disclosure.

During the 107th Congress, the Senate Committee on Governmental Affairs

conducted hearings into the presidential appointment process.41 Coinciding with

these hearings, the Office of Government Ethics (OGE) transmitted to the Senate

Committee on Governmental Affairs and the House Committee on Government

Reform, on April 4, 2001, a report on completed and proposed improvements to the

financial disclosure process for presidential nominees.42 This report was developed

pursuant to the Presidential Transition Act of 2000, and was to include

... recommendations and legislative proposals on ... streamlining, standardizing,

and coordinating the financial disclosure process and the requirements of

financial disclosure reports under the Ethics in Government Act of 1978 ... for

Presidential nominees [and] avoiding duplication of effort and reducing the

burden of filing with respect to financial disclosure of information to the White

House Office, the Office of Government Ethics, and the Senate ....43

According to the report, OGE found that the “public financial disclosure system ...

requires more information than is useful or necessary to achieve its fundamental

goals,” at a level of detail that is “more intrusive and burdensome than it need be.”44

OGE issued five related recommendations:

40

For an annotated list of these reports, see U.S. Congress, Senate Committee on

Governmental Affairs, Presidential Appointment Process: Reports of Commissions That

Studied the Staffing of Presidential Administrations: A Summary of Their Conclusions and

Recommendations for Reform, committee print, 107th Cong., 1st sess. (Washington: Apr.

2001).

41

Testimony from these hearings may be found at the following Web sites:

[http://www.senate.gov/~gov_affairs/040401_witness.htm] and [http://www.senate.gov/

~gov_affairs/040501_witness.htm], visited Oct. 28, 2003.

42

U.S. Office of Government Ethics, Report on Improvements to the Financial Disclosure

Process for Presidential Nominees (Washington: Apr. 2001). Hereafter referred to as OGE

Report.

43

P.L. 106-293, Sec. 3(b)(1).

44

OGE Report, p. 2.

CRS-19

(1) reduce the number of valuation categories;

(2) shorten certain reporting time-periods;

(3) limit the scope of reporting by raising certain dollar-thresholds;

(4) reduce details that are unnecessary for conflicts analysis; and

(5) eliminated redundant reporting.45

In addition, the office reported that it had been in contact with the Department of

Justice (DOJ) regarding revision of criminal conflict of interest statutes.

On December 12, 2001, Senator Fred Thompson introduced the Presidential

Appointments Improvement Act of 2001 (S. 1811).46 The bill was referred to the

Committee on Governmental Affairs, and was reported, with amendments, on May

16, 2002. It was not acted upon by the full Senate during the 107th Congress. The

bill would have amended the Ethics in Government Act of 1978 to revise the

financial disclosure process for executive branch personnel covered by the act. The

bill would also have stipulated that specified information regarding presidentially

appointed positions be provided to presidential candidates from major parties. This

information would have been provided at the time of the candidates’ nominations.

Further, the bill would have required each agency to recommend PAS positions for

elimination. Finally, it called on OGE and the Attorney General to review federal

employment conflict of interest laws. The bill incorporated a substantial part of

legislation that was drafted by OGE, also pursuant to the Presidential Transition Act

of 2000.

Congressional interest in changes to the executive branch presidential

appointment process has continued in the 108th Congress. On April 2, 2003, Senator

George Voinovich introduced legislation very similar to Senator Thompson’s bill

from the previous Congress, and Rep. Jo Ann Davis introduced a companion bill in

the House on April 3, 2003.47

Similar legislation, if enacted, might shorten the length of time between the

creation of a new department and the submission of nominations to the Senate. It

would do so to the degree that it streamlined financial disclosure processes.

45

OGE Report, p. 2

46

See also U.S. Congress, Senate Committee on Governmental Affairs, Presidential

Appointments Act of 2002, report to accompany S. 1811, 107th Cong., 2nd sess., S.Rept. 107152 (Washington: GPO, 2002).

47

S. 765, introduced by Sen. Voinovich, and H.R. 1603, introduced by Rep. Davis, were

both entitled the Presidential Appointments Improvement Act of 2003.

CRS-20

Appointment Progress at the New Department and

Congressional Options for Facilitating the

Appointment Process

If recent trends in the length of the appointment process continue in the current

context, appointments to PAS positions in the new homeland security department

could take, on average, nearly a year from the enactment of the organic legislation.

Based on past experience, three-quarters of this time is likely to be spent on the

selection and vetting process.

Several factors could have helped to speed this process. First, the Bush

Administration created a transition team that prepared for the creation of the new

department. Presumably, part of this preparation process involved consideration of

the probable leadership. Within four months of enactment, individuals had been

identified for more than half of the PAS positions. By April 28, 2003, just over five

months past the bill signing, eleven nominations to DHS positions had been sent to

the Senate and five of these had been confirmed. This suggests that candidates were

already being selected and vetted before the bill signing, which should have

diminished the time necessary before remaining nominations were submitted to the

Senate. In addition, the Bush Administration had filled most of the other PAS

positions that were vacant at the beginning 2001, allowing the White House

appointments process to be more focused on the DHS positions. The prior two years

had also given the Administration the time and experience to fine-tune its selection

and vetting process.

Two features of the Homeland Security Act could also have sped up the process

of establishing transitional leadership for the new department. Both of these

provisions have been discussed above. First, existing PAS appointees who would be

performing the same function in the new department do not need to be reconfirmed.

Second, the President is authorized, during the transition period, to designate an

officer already serving in a PAS position to serve, in an acting capacity, in a position

within the department. As noted above, the President has used both of these

authorities.

As of January 15, 2004, 17 (65%) of the 26 PAS positions at DHS had been

filled (see Figure 1); nine of the possible 12 assistant secretaries remained unnamed.

Fourteen nominations to DHS positions had been sent to the Senate, and 13 of these

had been confirmed by that date. The one nominee who was not confirmed received

a recess appointment from the President, and this appointment will expire at the end

of the second session of the 108th Congress. Of the 13 nominations that had been

confirmed, one appointee had resigned, and the position had been filled through a

second confirmed nomination. Consequently, 12 positions had been filled through

the advice and consent process. In addition to the 12 positions filled in this manner,

three positions, Commissioner of Customs, Commandant of the Coast Guard, and

U.S. Fire Administrator, continued to be held by pre-transition incumbents. One

additional position, Under Secretary for Emergency Preparedness and Response, had

been filled, without Senate confirmation, by an existing PAS appointee, as provided

in the act. In total, the initial appointment process had been completed for 16 of the

CRS-21

26 positions — more than one-half. Including the recess-appointed individual, a total

of 17 officials were in place in PAS positions at the new department by January 15,

2004.

Table 3. Appointments at the Department of Homeland Security,

as of January 15, 2004

As of

01/15/04

Nominations

14

Confirmations

13

Incumbent continuing as provided for in the Homeland Security Act

2

Incumbent continuing as provided for elsewhere

1

Appointed through germane duties provision

1

Appointment process completed

16

Designated in acting capacity as provided in the act and not yet confirmed

1

Serving under a recess appointment (same individual as the line above)

1

Confirmed officials who subsequently left the department (replaced)

1

Total PAS positions filled

17

Options for facilitating faster appointment of DHS officials would include the

following:

!

There is a consensus that the vetting process can be improved.

Some recommended improvements would require congressional

action, such as streamlining the vetting process. Depending on the

substance, however, proposed changes to financial disclosure or

conflict of interest requirements could prove controversial. It is not

clear if such changes would take effect in time to shorten the vetting

time for the remaining candidates for DHS positions.

!

Although the Senate confirmation process is, on average, a smaller

portion of the appointment process than the selection and vetting

process, it too has been taking longer over time. The Senate might

wish to review some of the recommendations made by the

commissions and task forces cited above for possible

implementation.

!

The Senate might choose to work closely with the Administration

prior to the nominations in order to promote the vetting and

nomination of candidates who will be acceptable to the Senate.

Congress may also wish to amend the Homeland Security Act with appointment,

title, and compensation specifications for the head of TSA.

CRS-22

Conclusion

The Homeland Security Act of 2002 created the new Department of Homeland

Security (DHS), which came into existence on January 24, 2003. The act creates in,

or transfers to, DHS some 26 full-time civilian PAS positions. Studies indicate that

the appointment process is, on average, taking longer, and that the selection and

vetting process often takes much longer than the confirmation process. Current

circumstances favored a shorter than average time between enactment of the

Homeland Security Act and the filling of the leadership positions for the new

department. Nonetheless, Congress can play a role in facilitating the appointment

process for these, as well as other, positions.

CRS-23

Appendix: Departments Created Since 1965

Housing and Urban Development. Presidents John F. Kennedy and

Lyndon B. Johnson had sought the creation of a housing department each year since

1961. In 1965, Congress passed legislation, despite strong opposition, establishing

the Department of Housing and Urban Development (HUD).48 The act essentially

elevated the Housing and Home Finance Agency (HHFA) and its components to

cabinet level. HHFA included an administrative component and five operating units:

the Federal Housing Administration, the Public Housing Administration, the Federal

National Mortgage Association, the Community Facilities Administration, and the

Urban Renewal Administration.

The HUD legislation was signed into law on September 9, 1965, and went into

effect 60 days later. President Johnson delayed the formation of HUD pending the

completion of a report on the government’s role in solving urban problems.49 The

new department began with about 14,000 employees and a budget of $3.1 billion (FY

1967).50

Seven PAS positions were created in the new department: a secretary, an under

secretary, four assistant secretaries, and a general counsel. Information concerning

the initial appointments to these positions is shown in Table 4. Nominations to four

of these positions were sent to the Senate and confirmed within five months of the

bill-signing, and nominations to all but one position had cleared the Senate within

nine months. The Administration took more than a year to forward a nominee for

general counsel, but that individual was confirmed within three weeks of nomination.

The mean time from the bill-signing to confirmation was 223 days, or nearly eight

months. The lengthy nomination process for the general counsel skews this average,

however. The median time, 140 days, or almost five months, may more accurately

reflect the average time taken to get top positions filled at the new department.51 Two

of the appointments, secretary and Assistant Secretary for Mortgage Credit/Federal

Housing Commissioner, went to individuals who had served in similar capacities in

HHFA. Their experience in the positions and with the appointment process may

have aided in their relatively quick confirmations. However, the other two nominees

who were nominated and confirmed relatively quickly had not held similar PAS

positions. Notably, no nomination was in the Senate more than three weeks. In

addition, the percentage of the total time from enactment to confirmation that the

nominations were in the Senate was relatively small — 3% on average; the time

48

P.L. 89-174, 79 Stat. 667.

49

“Department of Housing Approved,” in Congressional Quarterly Almanac (Washington:

Congressional Quarterly Inc., 1965), p. 382.

50

For a description, in table form, of departments established from 1947 to 2001, see CRS

Report RL31472, Departmental Organization, 1947-2001, by Sharon Gressle.

51

The means were calculated by dividing the column sums by the number of entries in the

column. This type of average may be strongly influenced by one or two particularly high

or low values. The median is the middle value in a group of numbers; half of the remaining

values fall above it and half below. If there are an even number of values, the median is the

mean of the two most central numbers.

CRS-24

taken to get the nomination to the Senate after enactment was far greater, even for the

earliest nominations.

Transportation. In 1966, legislation was enacted creating the Department of

Transportation (DOT).52 Functions were transferred to the new department from a

variety of other parts of the federal government, including the Departments of

Commerce, the Treasury, the Interior, and the Army, the Interstate Commerce

Commission, and the Civil Aeronautics Board. The Federal Aviation Agency was

transferred in its entirety.

President Johnson signed the bill into law on October 15, 1966. A section of

the act provided for the establishment of the department 90 days after the new

secretary took office. In 1967, the new department had nearly 59,000 employees. Its

budget for FY1968 was $6.1 billion.

At the outset, DOT had 19 PAS positions. The initial appointments to these

positions are shown in Table 5. The secretary was confirmed within three months

of the bill-signing, and nominations to 14 of the remaining positions cleared the

Senate within about six months. The Administrator of the St. Lawrence Seaway

Development Corporation, who had been appointed by President Kennedy in 1961,

continued to serve in that position. Only three appointments took longer than six

months: the Administrator of the Urban Mass Transportation Administration (698

days), the Assistant Secretary of Research and Technology (394 days), and the

Director of the National Highway Safety Bureau (300 days). Despite these longer

appointment processes, for the department, the mean length of time from enactment

to confirmation was 201 days, while the median was 163.

Energy. Congress created the Department of Energy (DOE) in 1977.53 The

new department absorbed, as a whole, the authorities of the Federal Power

Commission, the Federal Energy Administration, and the Energy Research and

Development Administration. It also drew functions from other government entities,

including the Departments of the Interior, Housing and Urban Development,

Defense, and Transportation, and the Interstate Commerce Commission.

The legislation creating the new department had strong support in both houses

of Congress, and President Jimmy Carter signed it into law on August 4, 1977. The

new department was established at the start of the new fiscal year, on October 1,

1977. It had approximately 19,600 employees and a budget (FY1978) of about $10.5

billion.

The law provided for 22 new PAS positions in the department. The initial

appointments to these positions are shown in Table 6. The secretary was nominated

and confirmed the day the President signed the bill. Nominations to 13 other

positions were confirmed by the end of the year (within about 4 months). The

remainder were nominated and confirmed in the following congressional session,

52

P.L. 89-670, 80 Stat. 931.

53

P.L. 95-91, 91 Stat. 565.

CRS-25

with total elapsed times of 155 to 432 days (5 to 14 months). As Table 6 shows,

many of these nominations that were confirmed relatively more quickly were

confirmed on the same day, October 20, 1977. Most of the appointments that

remained took substantially longer. The mean length of time from enactment to

confirmation was 162 days (5-6 months), and the median was 77 days (2-3 months).

These represent the shortest average appointment periods among the departments

studied. It is worth noting, however, that the average confirmation period as a

proportion of the total appointment time was relatively large for the Department of

Energy. On average, confirmation took longer for the Department of Energy than for

any other new department studied; the mean length of time from nomination to

confirmation was nearly two months. Conflict between organized energy interests

may have contributed to longer confirmation times for this department.54

Education. In 1979, Congress created, despite considerable opposition in the

House, the Department of Education.55 The new department consisted of programs

that had previously been part of the Education Division of the Department of Health,

Education, and Welfare (HEW). The remaining parts of HEW were then renamed

the Department of Health and Human Services.

President Carter signed the bill into law on October 17, 1979, and the

Department of Education began official operations in May 1980. The new

department initially had around 7,400 employees and a budget (FY 1981) of

approximately $14.7 billion.

The new department had a total of 18 PAS positions. The initial appointments

to these positions are shown in Table 7. Two positions were transferred directly

from HEW; the incumbents were appointed prior to the creation of the new

department. The secretary was confirmed about a month and a half after the billsigning, and four other officers were confirmed within 5 months. The remaining 10

took longer than 5 months, and both the mean and median times to confirmation were

more than 6 months. All officers were confirmed within a year after the law was

passed. The nominees who had previously been nominated and confirmed to other

PAS positions seemed not to have been confirmed any more quickly than those who

had not. This was true even of those who had served in education positions in HEW.

Although the average time a nomination awaited confirmation in the Senate was just

a little more than a month, one nomination remained there for 12 weeks. Still, the

elapsed time a nomination spent in the Senate was, on average, less than 20% of the

total time from signing of the law to confirmation.

Veterans Affairs. In 1988, legislation was enacted to reorganize the

Veterans’ Administration and elevate it to cabinet level to create the Department of

Veterans Affairs.56 Similar legislation had been introduced in every Congress since

the early 1960s, and it had widespread, although not universal, support in the House

54

J.P. Smith, “Old Hands Grip a New Department,” Washington Post, Oct. 31, 1977, p. A1.

55

P.L. 96-88, 93 Stat. 668.

56

P.L. 100-527, 102 Stat. 2635.

CRS-26

and Senate. President Ronald W. Reagan endorsed the idea in November 1987, and

legislation moved forward during the next session of Congress.

President Reagan signed the bill into law on October 25, 1988, in the last

months of his presidency. The act took effect on March 15, 1989, after the

beginning of the Administration of President George H. W. Bush. The law also

provided, however, that the President could appoint the secretary at any time after

January 21.

Whereas the Veterans’ Administration had three PAS positions in 1988, there

were 13 in the new department.57 The initial appointments to these positions are

shown in Table 8. The secretary was nominated and confirmed by the time the act

took effect, and the deputy secretary was confirmed shortly thereafter.

The mean length of time from enactment of the organic legislation for the

Department of Veterans Affairs to the confirmation of appointees was well over a

year (400 days). This is nearly twice as long as any of the other four new

departments. Although the Senate confirmation process took longer, on average,

than it did in the other four cases studied here, the President’s selection and vetting

process still accounts for more than 80% of the total elapsed time between enactment

and confirmation. This may be due, in part, to the transition between the Reagan and

Bush presidencies that took place soon after the law was signed. The new Bush

Administration faced many tasks in its first year, including numerous other PAS

appointments.

57

Twelve of the positions were created by the department’s organic legislation. The Chair

of the Board of Veterans’ Appeals was converted into a PAS position by a provision of a

separate act, P.L. 100-687, which was signed into law at about the same time (Nov. 11,

1988).

CRS-27

Table 4. Initial Appointments to the New Department of Housing and Urban Development, 1966-1967

Position

(PAS position held immediately prior to this

position, if any)

Executive

Schedule

Level

Date

nomination

received in

the Senate

Date

confirmed

by the

Senate

Days elapsed

from

enactmenta to

nomination

Days elapsed

from

comination to

confirmation

Days elapsed

from

enactmenta to

confirmation

Robert C. Weaver

Secretary

(Administrator, Housing and Home Finance

Agency)

I

01/14/66

01/17/66

127

3

130

Robert C. Wood

Under Secretary

III

01/14/66

01/17/66

127

3

130

H. Ralph Taylor

Asst. Secy. - Demonstrations/Intergovernmental

Relations

IV

05/10/66

05/16/66

243

6

249

Charles M. Haar

Asst. Secy. - Metropolitan Development

IV

01/19/66

01/27/66

132

8

140

Philip N. Brownstein

Asst. Secy. - Mortgage Credit/Federal Housing

Commissioner

(Commissioner, Federal Housing Administration,

Housing and Home Finance Agency)

IV

01/19/66

01/27/66

132

8

140

Don Hummel

Asst. Secy. - Renewal/Housing Assistance

IV

05/10/66

05/16/66

243

6

249

Thomas C. McGrath, Jr.

General Counsel

IV

02/01/67

02/17/67

510

16

526

Mean

216

7

223

Median

132

6

140

Appointee

Source: U.S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United States of America (EJ), vol. 108, pp. 1, 41-42, 48-49, 505, 559, 572; vol. 109 EJ, pp. 37, 135, 138.

a. The Department of Housing and Urban Development was created by the Housing and Urban Development Act (P.L. 89-174, 79 Stat. 667), signed into law on Sept. 9, 1965.

CRS-28

Table 5. Initial Appointments to the New Department of Transportation, 1966-1968

Appointee

Position

(PAS position held immediately prior to this

position, if any)

Executive

Schedule

Level

Date

nomination

received in

the Senate

Date

confirmed

by the

Senate

Days elapsed

from

enactmenta to

nomination

Days elapsed

from

nomination to

confirmation

Days elapsed

from

enactmenta to

confirmation

Alan S. Boyd

Secretary

(Under Secretary of Commerce for

Transportation)

I

01/10/67

01/12/67

87

2

89

Everett Hutchinson

Under Secretary

II

01/12/67

01/31/67

89

19

108

Gen. William F.

McKee (Ret.)

Administrator, Federal Aviation Administration

(Administrator, Federal Aviation Agency)

II

01/17/67

03/02/67

94

44

138

Paul L. Sitton

Administrator, Urban Mass Transportation

Administration

(Director, Office of Transportation Programs,

Commerce)

III

09/04/68

09/12/68

690

8

698

Lowell K. Bridwell

Federal Highway Administrator

(Deputy Under Secretary for Transportation,

Commerce)

III

01/18/67

02/09/67

95

22

117

A. Scheffer Lang

Federal Railroad Administrator

(Deputy Under Secretary for Transportation

Research, Commerce)

III

03/08/67

04/20/67

144

43

187

Joseph J. O’Connell, Jr.

Chair, National Transportation Safety Board

III

04/05/67

04/20/67

172

15

187

Oscar M. Laurel

Member, National Transportation Safety Board

IV

04/05/67

04/20/67

172

15

187

Francis H. McAdams

Member, National Transportation Safety Board

IV

04/05/67

04/20/67

172

15

187

John H. Reed

Member, National Transportation Safety Board

IV

04/05/67

04/20/67

172

15

187

Rear Adm. Louis M.

Thayer, USCG (Ret.)

Member, National Transportation Safety Board

IV

04/05/67

04/20/67

172

15

187

CRS-29

Appointee

Position

(PAS position held immediately prior to this

position, if any)

Executive

Schedule

Level

Date

nomination

received in

the Senate

Date

confirmed

by the

Senate

Days elapsed

from

enactmenta to

nomination

Days elapsed

from

nomination to

confirmation

Days elapsed

from

enactmenta to

confirmation

Joseph H. McCannb

Administrator, St. Lawrence Seaway Development

Corporation

IV

—

—

—

—

—

Donald G. Agger

Asst. Secy. - International Affairs

IV

02/07/67

03/02/67

115

23

138

M. Cecil Mackey, Jr.

Asst. Secy. - Policy Development

(Director, Office of Transportation Policy

Development, Commerce)

IV

01/24/67

03/02/67

101

37

138

John L. Sweeney

Asst. Secy. - Public Affairs

(Federal Cochairman, Appalachian Regional

Commission)

IV

01/26/67

03/02/67

103

35

138

Frank W. Lehan

Asst. Secy. - Research and Technology

IV

10/24/67

11/13/67

374

20

394

David D. Thomas

Deputy Administrator, Federal Aviation

Administration

(Deputy Administrator, Federal Aviation Agency)

IV

01/17/67

03/02/67

94

44

138

John E. Robson

General Counsel

IV

01/12/67

01/31/67

89

19

108

William Haddon, Jr.

Director, National Highway Safety Bureau

V

06/06/67

08/11/67

234

66

300

Mean

176

25

201

Median

130

20

163

Source: U.S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United States of America (EJ), vol. 109, pp. 1-2, 6, 26, 30, 32, 35, 97, 101, 205-206, 411, 437, 442, 569, 741-742,

982, 1032, 1034; vol. 110 EJ, pp. 454, 502-503.

a. The Department of Transportation was created by the Department of Transportation Act (P.L. 89-670, 80 Stat. 931), signed into law on Oct. 15, 1966.

b. McCann had served in this capacity when the St. Lawrence Seaway Development Corporation was under the supervision of the Secretary of Commerce, and continued to serve in this capacity as the

organization moved to the new Department of Transportation. He was nominated by President John F. Kennedy on March 14, 1961, and confirmed by the Senate on March 28, 1961 (vol. 103 EJ,

pp. 424, 476).

CRS-30

Table 6. Initial Appointments to the New Department of Energy, 1977-1978

Executive

Schedule

Level

Date

nomination

received in

the Senate

Date

confirmed

by the

Senate

Days elapsed

from

enactmenta to

nomination

Days elapsed

from

nomination to

confirmation

Days elapsed

from

enactmenta to

confirmation

Appointee

Position

(PAS position held immediately prior to this

position, if any)

James R. Schlesinger

Secretary

I

08/04/77

08/04/77

1

1

1

John F. O’Leary

Deputy Secretary

(Administrator, Federal Energy

Administration)

II

09/13/77

10/20/77

40

37

77

Dale D. Myers

Under Secretary

III

09/13/77

10/20/77

40

37

77

Charles B. Curtis

Chair, Federal Energy Regulatory Commission

III

09/13/77

10/20/77

40

37

77

George R. Hall

Member, Federal Energy Regulatory

Commission

IV

09/13/77

10/20/77

40

37

77

Don S. Smith

Member, Federal Energy Regulatory

Commission

(Commissioner, Federal Power Commission)

IV

09/28/77

10/20/77

55

22

77

Matthew Holden, Jr.

Member, Federal Energy Regulatory

Commission

IV

09/23/77

10/20/77

50

27

77

Georgiana H. Sheldon

Member, Federal Energy Regulatory

Commission

(Chair, U.S. Civil Service Commission)

IV

09/13/77

10/20/77

40

37

77

David J. Bardin

Administrator, Economic Regulatory Admin.

(Deputy Administrator, Federal Energy

Admin.)

IV

09/13/77

10/20/77

40

37

77

Lincoln E. Moses

Administrator, Energy Information Admin.

IV

11/29/77

12/15/77

117

16

133

Omi Gail Walden

Asst. Secy. - Conservation and Solar

Applications

IV

01/25/78

07/26/78

174

182

356

CRS-31

Executive

Schedule

Level

Date

nomination

received in

the Senate

Date

confirmed

by the

Senate

Days elapsed

from

enactmenta to

nomination

Days elapsed

from

nomination to

confirmation

Days elapsed

from

enactmenta to

confirmation

Appointee

Position

(PAS position held immediately prior to this

position, if any)

Duane C. Sewell

Asst. Secy. - Defense Programs

IV

05/09/78

08/07/78

278

90

368

Robert D. Thorneb

Asst. Secy. - Energy Technology

(Acting Assistant Administrator for Nuclear

Energy, Energy Research and Development

Administration)

IV

09/13/77

05/04/78

40

198

238

Ruth Clusen

Asst. Secy. - Environment

IV

07/13/78

08/25/78

343

43

386

Philip S. Hughes

Asst. Secy. - Intergovernmental and

Institutional Relations

IV

09/23/77

10/20/77

50

27

77

Harry E. Bergold, Jr.

Asst. Secy. - International Affairs

IV

09/13/77

10/20/77

40

37

77

Alvin L. Alm

Asst. Secy. - Policy and Evaluation

IV

09/13/77

10/20/77

40

37

77

George S. McIsaacb

Asst. Secy. - Resource Applications

IV

12/01/77

02/10/78

119

36

155

John M. Deutch

Director, Office of Energy Research

IV

09/13/77

12/06/77

40

84

124

Lynn R. Colemanb

General Counsel

IV

09/23/77

05/09/78

50

193

243

John K. Mansfield

Inspector General

IV

04/20/78

05/03/78

259

13

272

Thomas S. Williamson, Jr.

Deputy Inspector General

V

09/21/78

10/10/78

413

19

432

Mean

105

57

162

Median

45

37

77

Source: U.S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United States of America (EJ), vol. 119, pp. 658, 676, 717- 718, 741, 779, 833, 838-839, 914, 932, 939-940,

957, 959; vol. 120 EJ, pp. 27, 31-32, 96, 106, 205, 371, 433-440, 564, 586-587, 628, 631, 683, 761, 769.

a. The Department of Energy was created by the Energy Organization Act (P.L. 95-91, 91 Stat. 565), signed into law on Aug. 4, 1977.

b. At the end of the 95th Cong., 1st sess., the nominations of Thorne, Coleman, and McIsaac were returned to the President at the time of sine die adjournment on Dec. 15, 1977, under the provisions of

paragraph 6 of rule XXXVIII of the Standing Rules of the Senate (vol. 119 EJ, pp. 975-976). Each of the three was renominated to the same position on Jan. 26, 1978 and confirmed as noted.

Although this activity technically represents two nominations for each nominee, the two are treated as one continuous nomination for the purposes of this table. The elapsed times between nomination

and confirmation and enactment and confirmation do not include the 35 days of the intersession recess (Dec. 15, 1977 to Jan. 19, 1978), during which the Senate would have been unable to act

on these nominations.

CRS-32

Table 7. Initial Appointments to the New Department of Education, 1979-1980

Appointee

Position

(PAS position held immediately prior to this

position, if any)

Executive

Schedule

Level

Date

nomination

received in

the Senate

Date

confirmed

by the

Senate

Days elapsed

from

enactmenta to

nomination

Days elapsed

from

nomination to

confirmation

Days elapsed

from

enactmenta to

confirmation

Shirley M. Hufstedler

Secretary

(Circuit Judge, Ninth Circuit)

I

11/14/79

11/30/79

28

16

44

Steven A. Minter

Under Secretary

III

03/21/80

05/07/80

156

47

203

Cynthia G. Brown

Asst. Secy. - Civil Rights

(Principal Deputy, Office for Civil Rights, HEW)

IV

06/06/80

06/18/80

233

12

245

Thomas K. Minter

Asst. Secy. - Elementary and Secondary Education

(Deputy Commissioner for Secondary Education,

HEW)

IV

04/03/80

05/07/80

169

34

203

Albert W. Bowker

Asst. Secy. - Postsecondary Education

IV

04/21/80

05/07/80

187

16

203

F. James Rutherford

Asst. Secy. - Research and Improvement

(Assistant Director for Science Education, National

Science Foundation)

IV

04/03/80

05/07/80

169

34

203

Edwin W. Martin, Jr.

Asst. Secy. - Special Education and Rehabilitative

Services

(Deputy Commissioner for Education of the

Handicapped, HEW)

IV

06/06/80

06/18/80

233

12

245

Daniel B. Taylor

Asst. Secy. - Vocational and Adult Education

IV

05/28/80

06/18/80

224

21

245

Betsy Levin

General Counsel

IV

02/13/80

04/02/80

119

49

168

James B. Thomas, Jr.

Inspector General

(Director, Bureau of Accounts, ICC)

IV

06/13/80

08/19/80

240

67

307

C. William Fischer

Asst. Secy. - Budget and Planning

(Special Assistant, Department of Energy)

Vb

01/25/80

02/28/80

100

34

134

CRS-33

Executive

Schedule

Level

Date

nomination

received in

the Senate

Date

confirmed

by the

Senate

Days elapsed

from

enactmenta to

nomination

Days elapsed

from

nomination to

confirmation

Days elapsed

from

enactmenta to

confirmation

Appointee

Position

(PAS position held immediately prior to this

position, if any)

Martha E. Keys

Asst. Secy. - Legislation

Vb

05/19/80

06/18/80

215

30

245

John Gabusi

Asst. Secy. - Management

(Assistant Director for Management, Community

Services Administration)

Vb

01/25/80

02/28/80

100

34

134

Elizabeth S. Carpenter

Asst. Secy. - Public Affairs

Vb

01/25/80

02/28/80

100

34

134

Commissioner, Rehabilitation Services Admin.

V

—

—

—

—

—

Lelia Kimched

Director, Institute for Museum Services

V

—

—

—

—

—

Michael P. Timpane

Director, National Institute for Education

(Deputy Director, National Institute of Education,

HEW)

V

04/28/80

05/21/80

194

23

217

Margaret J. Giannini

Director, National Institute of Handicapped

Research

V

11/06/79

01/29/80

20

84

104

Mean

155

34

190

Median

169

34

203

c

Source: U.S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United States of America (EJ), vol. 121, pp. 851, 856, 904, 911; vol. 122 EJ, pp. 42, 44, 45, 81, 122, 127, 154,

214, 223, 227, 257, 272, 278, 283, 318-319, 325, 331, 345, 361, 365, 374-375, 470, 528.

a. The Department of Education was created by the Department of Education Organization Act (P.L. 96-88, 93 Stat. 668), signed into law on Oct. 17, 1979.

b. More recently, all assistant secretaries in the Department of Education have been compensated at Level IV of the Executive Schedule (U.S. Congress, Senate Committee on Governmental Affairs, Policy

and Supporting Positions, committee print, 106th Cong., 2nd sess., S.Prt. 106-54, Nov. 8, 2000 (Washington: GPO, 2000), pp. 75-83).

c. Robert R. Humphreys was nominated by President Jimmy Carter on Sept. 23, 1977 and confirmed by the Senate on Sept. 28, 1977 for this position, which was part of the Department of Health,

Education, and Welfare at the time. He was succeeded by George A. Conn, who was nominated by Ronald Reagan on July 1, 1981 and confirmed on July 28, 1981. It is unclear when Humphreys’

tenure ended and whether or not he continued to serve at the beginning of the new Department of Education (vol.119 EJ, pp. 740, 778; vol.123 EJ, pp. 441, 569).

d. Kimche was nominated (Dec. 6, 1977) and confirmed (Dec. 15, 1977) prior to the transfer of this position from the Department of Health, Education, and Welfare to the new Department of Education

(vol. 119 EJ, pp. 935, 959). It appears that she continued to hold the position at the beginning of the new department (U.S. Congress, House Committee on Post Office and Civil Service, Policy

and Supporting Positions, committee print, 96th Cong., 2nd sess., Nov. 19, 1980 (Washington: GPO, 1980), p. 42).

CRS-34

Table 8. Initial Appointments to the New Department of Veterans Affairs, 1989-1990

Appointee

Edward J. Derwinskic

Anthony J. Principi

D’Wayne Gray

James W. Holsinger, Jr.

David E. Lewis

Edward T. Timperlake

S. Anthony McCann

Edward G. Lewis

Ronald E. Ray

Allen B. Clark, Jr.

Charles L. Cragind

Jo Ann K. Webb

Raoul L. Carroll

Stephen A. Trodden

Position

(PAS position held immediately prior to this

position, if any)

Secretary

(Under Secretary for Security Assistance, Science

and Technology, State)

Deputy Secretary

Chief Benefits Director, Veterans Benefits

Administration

Chief Medical Director, Veterans Health

Administration

Asst. Secy. - Acquisition and Facilities

Asst. Secy. - Congressional and Public Affairs

Asst. Secy. - Finance and Planning

Asst. Secy. - Information Resources Management

Asst. Secy. - Human Resources and Administration

Asst. Secy. - Veterans Liaison and Program

Coordination

Chair, Board of Veterans’ Appeals

Director, National Cemetery System

General Counsel

Inspector General

(Assistant Inspector General for Audit, DOD)

Executive

Schedule

Level

I

Date

nomination

received in

the Senate

01/20/89

Date

confirmed

by the

Senate

03/02/89

Days elapsed

from

enactmenta to

nomination

87

Days elapsed

from

nomination to

confirmationb

41

Days elapsed

from

enactmenta to

confirmationb

128

II

III

03/06/89

01/25/90

03/17/89

04/05/90

132

457

11

70

143

527

III

05/15/90

08/04/90

567

81

648

IV

IV

IV

IV

IV

IV

10/12/89

06/15/89

06/21/89

09/18/89

09/06/89

07/17/89

11/19/89

10/06/89

10/06/89

11/19/89

11/19/89

10/06/89

352

233

239

328

316

265

38

80

74

62

74

48

390

313

313

390

390

313

IV

IV

IV

IV

09/24/90

07/26/89

06/15/89

05/07/90

02/28/91

10/06/89

10/06/89

08/04/90

682

274

233

559

90

39

80

89

772

313

313

648

337

295

63

72

400

352

Mean

Median

Source: Senate nominations database of the Legislative Information System, available at [http://www.congress.gov/nomis/].

a. The Department of Veterans Affairs was created by the Veterans Affairs Act (P.L. 100-527, 102 Stat. 2635), signed into law on Oct. 25, 1988.

b. The 33 days the Senate was in recess during the summer of 1989 (Aug. 4 to Sept. 6, 1989) and the 67 days between the 101st and 102nd Congresses (Oct. 28, 1990 to Jan. 3, 1991), during which the

Senate could not have acted on nominations, are not included in the calculations of elapsed time between nomination and confirmation.

c. President George H. W. Bush nominated, and the Senate confirmed, Derwinski as both ecretary of the new department and Administrator of Veterans Affairs.

d. The Chair of the Board of Veterans’ Appeals was converted into a PAS position by a provision of a separate act, P.L. 100-687 (Nov. 11, 1988), near the same time that the Veterans Affairs Act was

signed into law. Cragin was first nominated on Sept. 24, 1990 and, after his nomination was returned to the President at the end of the 101st Congress, nominated again on Jan. 4, 1991. For the

purposes of this report, these two nominations are treated as one continuous nomination.