When Trump wielded presidential power, he could not even build his border wall. But next time, the fevered forecasters warn, the entire federal apparatus, which mostly loathes him, will suddenly be submissive. Such alarmism, which evidently gives some people pleasurable frissons, distracts attention from the similarity of Trump’s and Biden’s disdain for legality.
Instances of Trump’s anti-constitutional behavior have been amply reported and deplored. Biden’s, less so — although they (e.g., the eviction moratorium, the vaccine mandate, the cancellation of student debt), and judicial reprimands of them, have been frequent. Now, consider the lack of attention to his contempt for the Federal Vacancies Reform Act, and the Senate majority’s supine complicity.
The president has plenary power to nominate principal officers of the federal government without seeking prior advice from the Senate. The Senate has plenary power to confirm — or reject — nominees, and it can somewhat condition the president’s power by stipulating certain qualifications for particular offices.
Biden nominated Ann Carlson last March to be administrator of the National Highway Traffic Safety Administration. Two months later, when it was clear that the Senate would not confirm her, Biden withdrew the nomination. But less than five weeks after that, he named Carlson acting administrator. His impertinence would perhaps be limited, by the Vacancies Act, to 210 days, which would expire Dec. 26. Furthermore, the Supreme Court has held that the act prohibits “any person who has been nominated to fill any vacant office from performing that office’s duties in an acting capacity.”
Biden, whose indifference to these legalities is Trumpian, is also unimpressed by several other provisions of the act that redundantly disqualify Carlson. In a masterpiece of understatement, Sen. Ted Cruz (R-Tex.) says, “It would be odd indeed for the law to prohibit someone to serve as acting while nomination is pending but to allow them to serve as acting after their nomination was pulled.”
In September, Cruz proposed an amendment to an appropriations bill that would have defunded Carlson by prohibiting anyone who was nominated and failed to get Senate approval for a position from being paid to act in that position. The Senate rejected the amendment 49-47, with only one Democrat (West Virginia’s Joe Manchin III, of course) supporting it.
In Federalist 51, James Madison predicted that liberty would be protected because the separation of powers would give “to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others.” Unfortunately, Madison’s expectation that one branch’s ambition would “counteract” the other presumed that, for example, the Senate’s pride would make it jealous of its prerogatives in providing advice and consent — or withholding consent — concerning people nominated by presidents to executive branch positions.
The Constitution’s Madisonian architecture — the federal government’s constitutional equilibrium — has been jeopardized by political tribalism. By party loyalty that breeds subservience to the president, and disloyalty to the Senate as an institution.
Such behavior is not new. Presidents acting as though their preferences supersede provisions of law predates Biden’s and Trump’s constitutional vandalisms. For example, in 1997 President Bill Clinton said, “I have done my best to work with the United States Senate in an entirely constitutional way. But …” But. Because the Senate would not confirm his nominee to head the Justice Department’s Civil Rights Division, Clinton made — entirely unconstitutionally — Bill Lann Lee “acting” assistant attorney general in perpetuity. The Senate acquiesced in this erasure of a power central to the system of checks and balances.
Justice Joseph Story, who served on the Supreme Court from 1812 to 1845, said that “no serious abuse of the power can take place without the co-operation of two co-ordinate branches, of the government.” Today, a Democratic executive and a Democratic-controlled Senate have cooperated in abusing power while histrionically warning against future authoritarian illegalities.
Perhaps because of the ruckus that Cruz raised calling attention to Carlson, and in spite of Senate Democrats defeating his proposal to defund her, she surrendered her office on Dec. 26. Contentment about this small victory for constitutional propriety should, however, be tempered by chagrin that such propriety, and legality (reread the Supreme Court’s words in paragraph five, above), have become contested concepts.
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