Friday, February 9, 2018

Seeking: One Constitutional Scholar to Answer This

It's Friday, and I've recently taken to saving the lightest questions and topics for the end of the week, but today there was a topic I wanted to take up ... and not wait.

One attribute of "The Swamp", that we have been discovering since the beginning of the Trump Administration, is the layering of political appointees over the top of the career employees in the Federal government.  Specifically, it is the concept that a new president comes in, fires the old leadership and puts his own in place.

In fact, it is necessary, in order to do the bidding of the people, that an incoming president gets to stamp the leadership of Federal agencies with his own policies.  It is counter to that concept, when a president's first week in office still features holdovers from a previous administration, especially when, as we have with Trump v. Obama, the previous administration's policies being diametrically opposed to the new president.

How are the new leaders appointed?  Well, they have to be nominated and then subject to hearings and debate by the Senate in their "advise and consent" role.  And that, friends, is the problem.

Let me quote myself from Wednesday's column here:  "Those people [agency leaders] change with the changes in administration.  What should happen, in a perfect world, is that those layers resign en masse on Inauguration Day and a whole new set of people, brought in by the President's team, take over at that point, in an interim status subject to Senate approval but already in their jobs, and the career people underneath those levels (e.g., career FBI agents), carry on their duties with new leadership."

Why is that not the case?  Why does the president not simply fire the whole mess of his predecessors' leadership, appoint his own people as interim occupiers of their positions, and then give the Senate six months to vote them up or down?  Specifically -- what Constitutional clause would be violated by a president doing just that?  Clearly he can fire the lot of them, the previous leadership.  We know that.

But why is it assumed that he can't just appoint his own intended people as "interim" on day one, and get them running immediately?

I would adore it if a legal mind familiar with all that could weigh in on this.  Right now, we are still, a year down the line, suffering because the Democrats have slowed the process of Senate approval, insisting on the full 30 hours for each of the hundreds and hundreds of political appointees.  I can't imagine why it would not be legally possible to circumvent that by doing all interim appointments while Senate processes slogged on.

I would adore it more if a president -- and President Trump is just the guy to do it -- would simply fire the holdovers, appoint people, move them into the offices, and then let them keep their "interim" title with all the power of the office, awaiting Senate confirmation when they got around to it -- but without allowing the Comeys, Strzoks and Pages of the previous administration to keep their hands on any of the levers of government.

Do you know why that wouldn't be perfectly reasonable?  I would like to believe that if he were to make such appointments, and the opposition (Senate Democrats) sued to stop it, the Supreme Court would ultimately determine that the president had the right to make interim appointments, pending Senate approval for permanent status.

Input from Constitutional scholars welcome.  I'm here.

Copyright 2018 by Robert Sutton
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  1. Not a Constitutional scholar but would welcome the case. Trump should have done this on Day 1. Still time.

  2. "Advise and Consent" became "drag out and delay so our guys can stay". Yuk