President Donald Trump has flouted so many constitutional norms that it’s hard to keep up with them. But one of his most flagrant violations has been his end run around the Constitution’s requirement that important appointments be made with the “advice and consent” of the Senate.
In defending that provision in the Constitution, Alexander Hamilton wrote in the Federalist Papers that the requirement of Senate confirmation would be “an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.”
Trump has a different idea, frequently delaying the Senate confirmation process by appointing “acting” officials in top posts rather than permanent ones. Last year he famously said that “I sort of like ‘acting’ … it gives me more flexibility.”
A good example is Chad Wolf, who has served more than nine months as acting secretary of the Department of Homeland Security after having been confirmed by the Senate to a lesser position in the department. In mid-August, the Government Accountability Office, a congressional watchdog, released a report concluding thatWolf’s appointment was invalid, as was that of Ken Cuccinelli, who has been performing the duties of deputy Homeland Security secretary. Less than two weeks later, Trump said that he would nominate Wolf to serve as the department’s permanent secretary.
The administration disputed the GAO’s conclusion, arguing that Wolf was lawfully acting as secretary under a law governing succession in the Homeland Security Department. Regardless, belatedly appointing Wolf on a permanent basis would remove the confusion. (Wolf himself conceded in a recent interview that “I strongly believe that the department needs a confirmed secretary.”) Most recently, Trump installed Anthony Tata, a retired Army brigadier general and Fox News commentator, in a key Pentagon position that did not require Senate confirmation after a Senate committee canceled a hearing onTata’s nomination to be undersecretary of Defense for policy and the nomination was withdrawn. Tata came under fire after reports that he had called Islam the “most oppressive violent religion I know of,” and referred to former President Barack Obama as a “terrorist leader.”
Regardless of who is elected president in November, Congress needs to revisit the issue of how to ensure that there aren’t gaps in the leadership of the federal government without allowing presidents to fiddle with the chain of command and procrastinate in sending nominations to the Senate. Rep. Katie Porter, DCalif., has proposed legislation that would limit the time officials could serve in an acting capacity and prevent presidents from appointing acting officials who lacked qualifications required for a Senateconfirmed occupant of the office.
But the problem isn’t just a matter of inadequate or confusing statutes. Trump’s willingness to so undermine the advise and- consent process — with acquiescence from the Republican-controlled Senate — is part and parcel of a larger contempt for the rule of law.
Los Angeles Times