Joshua Geltzerco-wrote for Lawfare on the unfilled senior, Senate-confirmed offices in the Executive Branch, and whether they can remain that way:
To be clear: This is a matter of whether to fill these positions, not with whom to fill them. There’s a long line of cases, including the famous 1926 Supreme Court decision in Myers v. United States, establishing wide latitude on the part of the president to hire and fire Executive Branch officials. The question of “whom to appoint” is, in general, a question for the president alone. But the question of “whether” is a different matter: It’s similarly long-established that Congress has an appropriate and indeed vital role to play in constructing and organizing the Executive Branch, even as that Branch’s officials ultimately report to the president. That’s what these statutes do in creating certain positions—and that’s why the president alone can choose whom to hire for them or fire from them, but not to make the deliberate choice to eliminate them by leaving them unfilled.