Trump’s contempt for advice and consent
Following revelations that Anthony Tata labelled Barack Obama a “terrorist,” whose “Islamic roots” led him to “help Iranians and the Greater Islamic State crush Israel,” Sen. James Inhofe (R-Okla.), chair of the Senate Armed Services Committee, notified President Trump that the retired Army Brigadier General was unlikely to be confirmed as Undersecretary of the Department of Defense. Soon after Tata withdrew his nomination, a Pentagon spokesman announced he would be appointed to a newly created position — not subject to Senate confirmation — with responsibilities much like those of the undersecretary.
One of many examples of contempt for the Senate’s role of advice and consent, this behavior poses a clear and present danger to our system of government.
The Founders of the United States believed that advice and consent helped preserve the balance of power between the legislature and the executive branches of government. The requirement that a majority of the Senate approve heads of agencies in the executive branch, Alexander Hamilton wrote in Federalist #76, provided “an excellent check upon the spirit of favoritism in the President and would tend greatly to prevent the appointment of unfit characters.” During the first Congressional session, the Senate, fearing that President Washington might make temporary appointments to evade legislative oversight, ordered him to send nominees for confirmation at an expeditious pace.
Not surprisingly, perhaps, conservatives on the Supreme Court have shared these concerns. In 2014, Justice Antonin Scalia deemed recess appointments (made while Congress is not in session), an “ignoble means of enabling the president to circumvent the Senate’s role in the appointment process.” Three years later, Justice Clarence Thomas argued that the Constitution did not provide for acting Cabinet officers and that the authority of presidents to make appointments without Senate confirmation was limited.
Although the Senate has been controlled by Republicans throughout his tenure, President Trump has circumvented the Constitution’s requirement of advice and consent, often by subverting the intent the Federal Vacancies Reform Act, which was designed to address unexpected vacancies caused by death, resignation or inability to perform the duties of the office. Acknowledging that he was “in no hurry” to get Cabinet members confirmed, the president has said “I like acting. It gives me more flexibility. Do you understand that?”
With few exceptions, the primary qualification of his temporary appointees (many of whom have had lengthy tenures in office) has been loyalty to Mr. Trump, and not experience or expertise. And they have less authority (and a shorter time horizon) to do their jobs. For these reasons, no doubt, Trump has made acting appointments in the Office of Management and Budget, the Department of Defense, the Department of Homeland Security, the Office of the Director of National Intelligence, the Department of the Interior, the Small Business Administration, the Office of the UN Ambassador, and a host of other agencies. Warned by Republicans, for example, that Ken Cuccinelli would not be confirmed as head of the Bureau of US Citizenship & Immigration Services, Trump created a new position in USCIS for Cuccinelli, and then elevated him to the position of Acting Director.
As he has bypassed the Senate, President Trump has decreased transparency and accountability in federal agencies by firing Inspectors General who are charged with identifying corruption, waste, malfeasance and violation of law and whose independence is protected by requiring that none of them be removed until and unless the president provides Congress with an explanation of his decision.
Making a mockery of this statutory mandate, President Trump fired Michael Atkinson, IG of the Office of the Director of National Intelligence, who alerted Congress to a whistleblower complaint about Trump’s Ukraine call. He got rid of Christi Grimm, Acting IG of Health and Human Services, after she issued a report documenting shortages of supplies in hospitals. The president dumped Mitchell Behm, deputy IG of the Department of Transportation, who was running the office following the retirement of his boss, and looking into possible conflicts of interest by Secretary Elaine Chao, the wife of Senate Majority Leader Mitch McConnell (R-Ky.). Trump demoted Glenn Fine, Acting IG of the Department of Defense, who had recently been named to lead a committee to coordinate oversight of trillions of dollars spent on the pandemic. Asked why he fired Steve Linick, IG of the State Department, who was investigating allegations of ethical improprieties by Secretary Mike Pompeo and his wife, Trump replied that Pompeo had asked him to do so. When Pompeo indicated that President Obama had appointed Linick, Trump added, “I was happy to do it.”
In April 2020, Trump threatened to adjourn Congress for the first time in American history for the express purpose of installing his people in positions of power in the federal government.
“Eternal vigilance is the price of liberty,” Wendell Phillips declared in a speech to the Massachusetts Anti-Slavery Society in 1852. “Only by continued oversight can the democrat in office be prevented from hardening into a despot.”
Here’s hoping that Democrats, Republicans, and independents will agree that we can — and we must — be much more vigilant about threats to our democratic norms.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”