Statutory Qualifications for Executive Branch Positions

Henry B. Hogue
Analyst in American National Government

In the aftermath of Hurricane Katrina, some Members of Congress and others questioned the competence of leadership at the Federal Emergency Management Agency (FEMA). After investigating the federal response to the hurricane, the Senate Committee on Homeland Security and Governmental Affairs concluded that the agency's leader had "lacked the leadership skills that were needed for his critical position." In response, the Post-Katrina Emergency Management Reform Act of 2006 (P.L. 109-295, 120 Stat. 1394) stipulated that the FEMA Administrator, among other top agency leaders, must meet certain qualifications. President George W. Bush's signing statement for this act seemingly challenged the constitutionality of these requirements, and it stated that the "executive branch shall construe [the applicable provision] in a manner consistent with the Appointments Clause of the Constitution." Three Members of Congress then urged the President to "reconsider [his] position and join [them] in calling for strong standards and the highest professional qualifications for the leadership of FEMA and for open dialogue between the executive and legislative branches on issues of such significant importance to out nation's safety and security." 

These events reflect broader interbranch differences over congressional authority to establish statutory qualifications. The preponderance of evidence and historical practice suggests that Congress generally has the constitutional authority to set such qualifications. The boundaries of this authority have not been conclusively drawn, however, and the executive branch, in recent years, has asserted that congressional authority in this area is more limited than congressional practice would suggest. Statutory qualification requirements might continue to be an area of conflict between Congress and the President. Inasmuch as these provisions are not self-enforcing, their success as a means of assuring competent leadership of the federal government will depend upon the two branches' adherence to them during the selection and confirmation processes. 

In practice, it has not been unusual for Congress to mandate that appointees to certain positions meet specified requirements. Some statutory qualification provisions, like those for the FEMA Administrator, require that appointees have certain experience, skills, or educational backgrounds that are associated with competence. Other qualification provisions address a variety of characteristics, such as citizenship status, residency, or, for the purpose of maintaining political balance on regulatory boards, political party affiliation. Congress has used such statutory provisions selectively; most executive branch positions do not have them. This report provides background on the constitutional appointments framework, discusses Congress's constitutional authority to set qualifications, discusses congressional practices in this area, and provides related analysis and options. The report includes two tables with examples of existing positions with qualification requirements.


Date of Report: March 16, 2010
Number of Pages: 32
Order Number: RL33886
Price: $29.95

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