Harvard Journal on Legislation

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A Conservative Approach to Early Childhood Education: Building on the Foundations of Success & Boosting Academic Achievement Through Choice

Representative Burgess Owens*

I. INTRODUCTION

As the son of an educator and a grandfather to sixteen school-aged children, I believe that Early Childhood Education (“ECE”) is essential for many reasons, one of which is that ECE simultaneously provides support for children to learn, for parents to enter the workplace, and for future generations of American workers to grow. I have seen the importance of ECE firsthand as a father and grandfather, as well as in my role as Ranking Member of the House Subcommittee on Early Childhood, Elementary, and Secondary Education.

Raising children is one of the most rewarding and challenging experiences in a person’s life. As part of that process, ensuring that children have a solid start is the first step to helping them grow and develop. One of the most important tools at a parent’s disposal is ECE, access to which has significant impact on the foundations that are built for children from birth to fifth grade.1 See Early Childhood Education, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/policy/hst/hi5/earlychildhoodeducation/index.html [https://perma.cc/HZQ3-K5GQ].  The impact of high-quality early education on childhood development and beyond cannot be overstated. Americans of all political stripes, alongside local municipalities and private sector partners, must work together to support a strong child care sector that assists hardworking American families.

The COVID-19 pandemic dealt a significant blow to child care, in-person education, and the American workforce. When most of the economy was shut down, schools and child care centers also shut down.2 See Map: Coronavirus and School Cloures in 2019-2020, EDWEEK (Mar. 6, 2020), https://www.edweek.org/leadership/map-coronavirus-and-school-closures-in-2019-2020/2020/03#:~:text=The%20coronavirus%20pandemic%20forced%20a,6%20to%20May%2015%2C%202020. [https://perma.cc/X9Z8-NFZH]; NAT’L ASS’N FOR THE EDUC. YOUNG CHILDREN, AM I NEXT SACRIFICING TO STAY OPEN, CHILD CARE PROVIDERS FACE A BLEAK FUTURE WITHOUT RELIEF (2020). As the pandemic wore on, many schools remained closed, but child care providers worked to remain open or reopen because they recognized their importance in keeping America going and helping families and children succeed.3See Anya Kamenetz, What Parents Can Learn from Child Care Centers That Stayed Open During Lockdowns, NPR (June 24, 2020, 7:01 AM), https://www.npr.org/2020/06/24/882316641/what-parents-can-learn-from-child-care-centers-that-stayed-open-during-lockdowns [https://perma.cc/FG84-DPRF].

When combating these challenges, we must remember that the beginning years of a child’s life are the building blocks upon which they rely on to create a bright future. Without access to high-quality care, as defined by meeting the specific needs of each child, it is often more difficult for parents to go to work or further their own education. Access to ECE in America will help determine the success of future generations. It is imperative that we think outside the box and focus wholly on children by protecting parental choice, saving taxpayer dollars, and prioritizing the future workforce of America. The time to work together for bipartisan childcare solutions that encompass program alignment across federal, state, and local governments is now.  We have no time to waste—parents are waiting, children are growing, and our nation is falling behind as a leader in education.

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Legal Constraints on Executive Power to Manage Agency Vacancies

Lauren Shapiro*

I. INTRODUCTION

Throughout the history of the Republic, high-level government offices have often gone unfilled for periods of time.1 See Nina A. Mendelson, The Permissibility of Acting Officials: May the President Work Around Senate Confirmation?, 72 ADMIN. L. REV. 533, 578 (2020); see also Anne Joseph O’Connell, Actings, 120 COLUM. L. REV. 613, 638–41 (2020) (citing past research and statistical data on vacancy rates). Such vacancies occur for a variety of reasons—perhaps the President has failed to nominate a permanent officeholder, the Senate has stalled on a nominee’s confirmation vote, or the original confirmed officeholder has died, resigned, become sick, or been fired.2 See 5 U.S.C. § 3345(a) (specifying that the FVRA applies when covered Senate-confirmed officers “die. . ., resign. . ., or [are] otherwise unable to perform the functions and duties of [their] office.”); see generally Ben Miller-Gootnick, Note, Boundaries of the Federal Vacancies Reform Act, 56 HARV. J. ON LEGIS. 459 (2019) (contending that the FVRA does not apply to firings). Historically, regardless of the reason, extended vacancies for top positions requiring Presidential nomination and Senate confirmation (“PAS” positions) have been rare.3 See O’Connell, supra note 1, at 645, 648; see also Mendelson, supra note 1, at 582 (citing Thomas Berry, Is Matthew Whitaker’s Appointment Constitutional? An Examination of the Early Vacancies Acts, YALE J. ON REG.: NOTICE & COMMENT (2018), https://www.yalejreg.com/nc/is-matthew-whitakers-appointment-constitutional-an-examination-of-the-early-vacancies-acts-by-thomas-berry/ [https://perma.cc/NTL8-XD6F]) (“Berry elaborated further that periods of [acting] service [pre-1860], including for the ad interim appointments, generally were extremely short—on the order of days or weeks rather than months or years.”).

The Trump administration departed from this trend: it faced more vacancies for PAS positions—and filled them with longer-serving acting officials—than any prior administration for which data exists.4 See O’Connell, supra note 1, at 623, 643–57; see also ANNE JOSEPH O’CONNELL, ACTING AGENCY OFFICIALS AND DELEGATIONS OF AUTHORITY (2019), https://www.acus.gov/sites/default/files/documents/final-report-acting-agency-officials-12012019.pdf [https://perma.cc/D7CR-BX3Q] (“President Trump’s acting Secretaries have served longer, on average, than recent Administrations.”) [hereinafter O’CONNELL, ACTING AGENCY OFFICIALS]. Acting officials, who are not Senate-confirmed to the relevant position, occupied several high-level posts for years during the Trump administration.5 See BOB COHEN ET. AL, P’SHIP FOR PUB. SERV., THE REPLACEMENTS: WHY AND HOW “ACTING” OFFICIALS ARE MAKING SENATE CONFIRMATION OBSOLETE 7–8 (2020), https://ourpublicservice.org/wp-content/uploads/2020/09/The-Replacements-1.pdf [https://perma.cc/Z2LR-TUX8]. Some positions, such as the State Department Special Envoy for North Korea Human Rights Issues, remained perennially vacant.6Id.

Under the Federal Vacancies Reform Act of 1998 (“FVRA”), extremely long tenures of acting officials such as these must eventually come to an end. Pursuant to the FVRA, when the permissible period for acting service expires, the PAS position again becomes vacant, and “only the head of [the] agency may perform any function or duty of [the] office.”75 U.S.C. § 3348(b)(2) (2004). If someone other than the head of the agency performs the functions and duties of the again-vacant office, the resulting actions will be rendered void ab initio.85 U.S.C. § 3348(d)(1) (2004).

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