Executive "Expertise"?: Reviewing and Reconsidering Statutory Requirements in Executive Branch Positions

The nomination of John Ratcliffe to be the Director of National Intelligence resurfaced debates over Congress’s authority to restrict the President’s ability to nominate certain individuals outside of its “advise and consent” role, given that the Director is statutorily required to have “extensive national security expertise.” While the subject of statutory requirements on executive appointments has been reviewed a handful of times, those discussions focused on whether such restrictions are constitutional. This Article, on the other hand, begins where prior discussions have left off: what positions are subject to statutory requirements? In answering this question, this Article identifies the different positions that impose such requirements as well as their authorizing statutes, focusing on those requirements that relate to one’s background qualifications or expertise to serve in a role. To that end, it catalogues the experience-related requirements that are imposed, namely general “expertise” or specific experiences or educational background.

Thereafter, it seeks to synthesize patterns for which roles have general requirements versus which have specific requirements and posits the likeliest explanations as to why Congress has chosen to adopt these patterns—that those positions require the most niche or specialized expertise or are the most critical, thereby heightening the need to have genuine experts fill them. Finding each potential pattern lacking, this Article concludes that expertise requirements are inconsistently dispersed throughout the U.S. Code and questions whether and to what extent the country would be served by rethinking expertise requirements in Executive Branch roles, evaluating several hypothetical modifications to standardize these requirements. Finally, this Article provides a comprehensive appendix of approximately 350 statutory roles subject to general or specific expertise requirements, including over sixty that demand Senate confirmation.