In the same week, the Senate Intelligence Committee issued its final report on the 2016 presidential election with irrefutable evidence that the Trump campaign colluded with Russian operatives to sway the outcome, President Trump admitted on live television that he withheld funding from the U.S. Postal Service to prevent mail-in voting, and news leaked that Iran had offered bounties to the Taliban to kill U.S. service members in Afghanistan.
It’s easy to get bogged down in the flood of bad news, attacks on our democracy and violations of norms and laws by the Trump administration — especially with the crumbling economy and ongoing pandemic. And amid all of these reports, a conflict over the nomination process may seem like insignificant administrative squabbling. But it’s not. The president’s advisers, and the process through which they are vetted, are at the heart of every major challenge this country faces. The Constitution gives the Senate authority over nominations for a reason: to ensure that competent, experienced secretaries are at the helm of the executive departments.
Department secretaries serve two roles: They are the president’s constitutionally appointed advisers and they manage the executive departments. In their capacity as advisers, they follow the president’s orders, but they are also expected to push back on bad ideas and tell the president when he or she is wrong. In their capacity as bureaucratic managers, they oversee the services we depend on the federal government to provide, including mail delivery, disease prevention, unemployment benefits during depressions and everything in between. When they bungle their administrative duties, the country suffers.
The original departments were created with a specific precedent in mind. During the Revolution, many Americans hated the British cabinet and blamed the king’s ministers for unpopular legislation. While King George III earned his fair share of condemnation, Americans never forgot their distrust of the ministers who had corrupted the king.
With this history fresh in their minds, delegates from 12 states gathered at the Constitutional Convention in Philadelphia in 1787. They included a few key phrases in Article II, Section 2 of the Constitution to prevent against the dangers they perceived in the British cabinet. First, they gave the president the right to appoint “all other Officers of the United States” with the Senate’s advice and consent.
Second, the delegates instilled in the Constitution the president’s right to “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”
Together, these two clauses reflected the delegates’ intentions for the Senate-president-appointee power dynamic. They understood that the department secretaries would serve as the president’s primary advisers and they wanted those advisers to be experienced, knowledgeable and prepared. The confirmation process would ensure that the nominees were qualified to advise the president on the weighty matters of state that crossed his or her desk.
The delegates also wanted to be sure that the secretaries were giving good advice. The Constitution requires that the secretaries give their opinions in writing to ensure that there is physical evidence about which person advocated which policy. By forcing the secretaries to leave a paper trail, the delegates sought to protect transparency at the highest levels of government.
These protections took on additional importance as the executive departments expanded and secretaries acquired expansive authority over federal programs. As the first secretary of state, Thomas Jefferson employed a small staff of a few clerks and corresponded with a handful of ministers and consuls. Today, the Department of State employees almost 70,000 people across the globe. The Senate confirmation process is designed to force the president to select candidates that are capable of handling this enormous task.
So why does this history matter? Trump typically lets officials go when they resist his worst impulses. Secretary of Defense Jim Mattis resigned when Trump abruptly ordered the withdrawal of American forces from Syria over Mattis’s objections. After the White House ignored several warnings about Russian electoral interference, Director of National Intelligence Daniel Coats resigned. Even Nielsen, who originally complied with Trump’s family separation policy, departed when Trump demanded a more extreme immigration solution.
After pushing out confirmed secretaries, Trump resorts to acting secretaries or undersecretaries when his preferred candidate is so unqualified or objectionable that even the Republican majority in the Senate refuses to approve the nomination. Congress has challenged this controversial tactic in the past, which was first deployed by President Richard M. Nixon. Trump appointed Wolf, Cuccinelli and McAleenan to acting positions after Senate Republicans warned the administration that they would not be confirmed.
While the unprecedented Cabinet turnover is embarrassing for the administration, the secretaries are supposed to resist dangerous policies. If they can’t change the president’s mind or they refuse to implement the policies, resignation is appropriate. The president is then required to nominate a new secretary for the Senate’s consideration within 210 days under the Vacancies Act.
Trump has broken this law. As a result, many of the recent Department of Homeland Security activities, including rounding up protesters in Portland, Ore., and Chicago, and blocking asylum seekers from the country, may be found unauthorized and invalid. While judges may rely on the GAO decision in pending legislation against the DHS, the ramifications for the families involved are enormous. These violations must not go overlooked — the balance of power between the branches of government enshrined in the Constitution demands it.