Hobbs' confirmation bypass creates legal minefield
GOP Senate did her wrong, but this wasn't the best of bad options.
In analyzing and assessing the ruction between Gov. Katie Hobbs and the GOP Senate over her nominees to head up state agencies, the place to begin is here: The proximate cause is the abuse and misuse of the confirmation authority by Republican senators.
That has nobbled Hobbs’ ability to staff her administration with qualified agency directors who support her policies – as, under the separation of powers, should be her prerogative.
That said, her attempted bypass of the Senate confirmation process for agency directors, while understandable, doesn’t appear to pass legal muster. It wasn’t the best option available to her, although none of the options were very good or satisfactory.
State law invests almost plenipotentiary powers in agency directors to run their departments. In most cases, such directors are appointed by the governor subject to confirmation by the state Senate.
Historically, a legislative committee with similar jurisdiction would initially vet nominees and make a recommendation to the Senate as a whole.
Senate President Warren Petersen abandoned this process and instead appointed a single committee to initially vet all of Hobbs’ nominees. And as chairman, he appointed Jake Hoffman, a MAGA cage fighter with little sense of responsibility or true understanding of the doctrine of separation of powers under our system of checks and balances.
Under the separation of powers, Hobbs should have the ability to staff her administration with agency directors who support her policies, even if Senate Republicans disagree with those policies. The confirmation process isn’t supposed to invest GOP senators with a veto over executive branch policies. There are other ways, under the separation of powers, by which GOP legislators can contest with Hobbs over policy.
Alexander Hamilton addressed the proper, and improper, use of the confirmation authority in Federalist No. 76. In it, Hamilton said that rejection of executive branch nominees should be rare. It was intended strictly to prevent the appointment of “unfit characters” – meaning, basically, nominees who are unqualified, corrupt, or have some other personal defect. Supporting the policies of the president, and by analogy a governor, isn’t, according to Hamilton, grounds to reject a nominee.
Hobbs’ nominees aren’t “unfit characters” in the sense that Hamilton meant. As a general proposition, they seem qualified for the positions to which they have been appointed.
I doubt the good faith of Petersen and Hoffman in the conduct of the committee. It seems clear that it was intended, and has functioned, not as a true vetting process, but as a political battering ram intended to nobble and damage Hobbs substantively and politically as much as possible.
Even if it were a good faith effort, it has been a misuse of the confirmation authority if for no other reason than its dilatoriness. We are entering the tenth month of the Hobbs administration and Hoffman’s committee has failed to act on the vast majority of Hobbs’ nominees. That despite the fact that in the last legislative session, there were vast stretches in which very little else was going on.
Hobbs has announced her attempted bypass. Her director nominees for 13 agencies have instead been designated executive deputy directors. The intent appears to be to have these executive deputy directors run the agencies indefinitely, exercising the expansive powers granted by statute to Senate-confirmed directors.
To give the dodge the patina of legality, Hobbs reportedly sequentially appointed the interim director of administration as an interim director of each of these other agencies, who then appointed her nominees for them to the newly created position of executive deputy director with, purportedly, the statutory powers of the director.
State law allows nominees to serve as acting directors while the Senate confirmation process proceeds. They can serve unconfirmed for up to a year. So, Hobbs' nominees could have continued to head up their respective agencies, unquestionably still exercising the full powers of a Senate-confirmed director.
Moreover, there is nothing in statute explicitly prohibiting the renomination of a director after the year of unconfirmed service has expired. Given how dilatory the Hoffman committee has been, who knows how long Hobbs’ nominees could serve as acting directors before the full Senate got around to formally confirming or rejecting them.
Following that route would be far from ideal. An unconfirmed director has less informal authority within the agency than a confirmed one. But at least an unconfirmed acting director is still a director, with the unquestioned full legal authority of a Senate-confirmed director. What legal authority an executive deputy director has is unclear and highly questionable.
State Treasurer Kimberly Yee was grandstanding when she rejected the participation of Hobbs’ nominees to head up the departments of administration and banking in a Board of Investment meeting. But she had a point.
State law provides for membership by the directors of those departments or their designees. Hobbs’ nominees were acting directors and thus legally entitled to participate. They no longer are. They are appointed executive deputy directors. And without an agency director, there cannot be a director’s designee.
The argument by Petersen and others that Hobbs’ bypass jeopardizes the legality of subsequent agency actions shouldn’t be dismissed as hyperbole. If the GOP Senate were to sue over the matter, judges might be reluctant to get involved in a political dispute between the legislative and executive branches. But they wouldn’t be able to duck a lawsuit brought by a private party aggrieved by an agency decision, particularly one involving a decision reserved for the agency director, contesting the legality of a decision actually made by an unconfirmed executive deputy director purporting to exercise the statutory authority of a confirmed director.
Attorney General Kris Mayes attempted to give Hobbs legal cover through a statement saying that the misuse of the confirmation authority gave Hobbs the legal option to fill her administration through other means. But all the statement really did was illustrate Mayes’ lack of credibility as a legal authority.
Mayes issued a political statement on a matter regarding which she may be asked to issue a formal legal opinion. And her statement made no attempt to deal with the knotty legal issues regarding purporting to grant indefinitely the statutory powers of a confirmed agency director to an executive deputy director not subject to Senate confirmation.
The GOP Senate did Hobbs wrong. However, Hobbs’ bypass creates a legal minefield.
Reach Robb at firstname.lastname@example.org.