Harris Appointees

One question to consider is that if Harris wins and Republicans take the Senate, how will she get any appointees confirmed? I suppose Murkowski and Collins might allow major national defense appointees through, but who sees a Senate led by John Cornyn or John Thune to even allow a vote on a good HUD nominee? Well, one way is that Biden appointees do not need confirmation to continue serving. I expect a good number of Biden Cabinet heads to continue on if they have any desire to do it. I am going to have more on this soon in an actual article I have coming out, I think next week, but Dayen deals with this some with Lina Khan, hated by Republicans.

Many Biden nominees won the thinnest possible majority to get confirmed. (Some did earn broad bipartisan support, like … Lina Khan, who was confirmed 69-28 in 2021.) Julie Su barely got confirmed as deputy secretary, but did not have the votes to step into the secretary of labor position when Marty Walsh left. So the Biden administration did something unusual: They kept her in place as acting secretary for close to two years.

That is perfectly legal. The Labor Department’s statute clearly states that the deputy secretary can “perform the duties of the secretary” indefinitely in the event of a resignation.

There’s similar statutory authority for Lina Khan. Technically speaking, her formal term of office ends next Wednesday, September 25. But the FTC statute states explicitly that a commissioner “shall continue to serve until his [or her] successor shall have been appointed.” In other words, Lina Khan does not need to face a Senate confirmation again to continue serving; that’s just the factual reality.

The same is true of every member of Biden’s Cabinet. Robert Gates, for example, continued on as Barack Obama’s defense secretary as a holdover from the Bush administration from 2009 to 2011. He did not need to be reconfirmed. Even if all Cabinet members offered their resignation to Harris, they could offer to remain in office until a replacement was selected. “Every Cabinet member could just stay,” noted Jeff Hauser, executive director of the Revolving Door Project.

For independent agencies and commissions, staying power depends on the statute, or on their term in office. For instance, Gary Gensler was confirmed in 2021 to a five-year term, and SEC commissioners can serve up to 18 months after that term is up as long as they are not replaced. So Gensler can legally stay in his post until December 2027. (Caroline Crenshaw, a Democratic commissioner of the SEC, only has until December 2025, and the commission will fall into gridlock after that without action; that makes reconfirming her in the current Democratic Senate a priority.)

Now, it is not ideal to run a presidential administration with retreads from the last administration. But it is a very possible reality that Harris will have to face. I’m not breaking news when I say that Democrats holding the Senate doesn’t look like a good bet right now. With Jon Tester in deep trouble in Montana, the most likely best-case scenario gives Democrats 49 Senate seats, and maybe a couple less. There’s certainly a path to a Democratic Senate majority without Tester, through Texas, Florida, and perhaps Nebraska (if the independent candidate Dan Osborn decides to caucus with Democrats, which he has not committed to). But those are long shots.

Given this likelihood, if Harris is elected, she’ll have a choice to make: spend months trying to get her nominees in place in a Senate that is more inclined to deliver her bad headlines, or roll with a near-term continuity plan. She could pick some high-profile fights, but the idea of reaching all the way down to subcabinet appointments and independent commissioners sounds like a needless headache.

It’s true that some Cabinet officials are simply not going to want to stick around. Veterans Affairs Secretary Denis McDonough has already announced his departure at the end of Biden’s term, and Treasury Secretary Janet Yellen is expected to leave. In that case, the Federal Vacancies Reform Act holds for temporary appointments, usually of the first assistant but in general of any Senate-confirmed officer or senior agency appointee.

That provides even more tools for Harris to stretch things out. In the Treasury example, Wally Adeyemo, the deputy secretary, could serve for up to 300 days after Inauguration Day, or until November 16, 2025. If there’s a nomination for the position, Adeyemo can potentially serve even longer, until that nominee is confirmed. And even if that nominee is rejected, Adeyemo could serve for 210 days after that rejection. Harris could then nominate someone else and keep Adeyemo in place more or less indefinitely.

Appointees under Harris are going to be jerry-rigged if Republicans take the Senate, that’s for sure. It’s something we should think more about.