Yeah, Obama had one Secretary not approved until April. And I don’t remember how long it took Bill Clinton to finally get an Attorney General.
The problem with the present gang is that they have terrible, ignorant, non-credible candidates coming out of the political system. It’s like a war on the government, which is of course what the maniacs who bankroll the GOP have said they want, for a generation. Apparently they mean it.
Which law do you imagine he’d be breaking in that scenario?
…that’s what he’s asking.
…he must have some idea in order to formulate the question.
Seriously, what reasonable person would think that it’s somehow illegal for a President to fail to nominate a Secretary of Education? That’s just not how our laws work.
Well, the appointments clause of the Constitution says that the president “shall nominate . . . Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . .”
So, in any circumstance where there is legally required to be a particular “officer of the United States”, and no other provision is made for their appointment, the President has a constitutional (and therefore legal) obligation to nominate someone.
It’s worth noting that the appointments clause goes on to say that “but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Obviously that’s to avoid the President having to make, and the Senate having to consider, literally thousands of nominations. But that clause will be largely inoperable unless there are “Heads of Departments”, and (unless other provision is made) the President has to nominate those heads of departments. So it’s strongly arguable that there is a legal obligation to make nominations.
Of course, by the same argument there’s a legal obligation on the Senate to consider them. and of course the Senate flatly refused to consider any nomination made by the last President to fill the Supreme Court vacancy arising on the death of Scalia. Was this not a breach of their constitutional and legal obligation?
Yes, I suggest, it was, just as it would be a breach for the President to refuse to make a nomination. The lesson is not that there is no obligation to make or consider nominations, but that becuase of the separation of powers the obligation is not enforceable against the President/the Senators by the judicial branch. It’s up to the people to find a remedy for such defaults through the ballot box.
Emphasis added. Legally speaking, “shall” tends to mean something different from “may”. The executive departments of the U.S. federal government are established by law; laws are passed by Congress (and signed by whoever was then President, or enacted over his veto). If the Department of Education (or any other department) is to be abolished, it must be done by Congress, not by the President just sort of not bothering to appoint a Secretary of Whatever (along with the Deputy Secretary, Assistant Secretaries, Deputy Assistant Undersecretaries, and so forth).
Now, as UDS suggests, this dereliction of duty would be something handled by the political process (elections), or by impeachment, not by having U.S. Marshals get in a shoot-out with the Secret Service, then cart the POTUS off in handcuffs. (Also, this would be a totally bizarre thing for a President to do–even for this President to do–since the Cabinet Secretaries and other Presidential appointees are how he runs the whole vast federal bureaucracy and puts his stamp on Washington.)
Correct. It would be a political issue, and I doubt the courts would touch it with a ten-foot pole.
26 replies and no one has mentioned recess appointments?
There are no recesses any more. The Senate was always in session to ensure that Obama never had a chance to make a recess appointment. The current Senate may decide to go back to older norms, or they may not.
The Other Waldo Pepper, just out of curiosity: have you ever worked at any place at all? Did that place have a boss? Did it ever not have a boss? Did the boss ever go on vacation? Have you ever been in a social group or a sports team or a classroom or any situation of any kind that might involve a hierarchy? Is there no example you can pull out of your total life experience that might have some bearing on why a business might need a boss?
I have, indeed, worked at a place that had a boss; and, yes, an entire hierarchy was involved; and so on; and the example from my life experience is – when working for a business that had a big boss at the top, and lots of levels of intermediaries all the way down – that anyone under the big boss could and did go on vacation like you just said; or could get fired, or could retire, or could even keel over dead; and things of course just kept motoring along, because of course they did; most people just kept doing their jobs, and the big boss at the top kept communicating his priorities; and, well, you know how our military keeps on keeping on even when some guy in the chain of command gets shot? I guess it was like that, only we shrugged more.
Things would’ve been SO much better if, at the beginning, someone had just told Trump that the best Cabinet is made out of cherry wood.
But, The Other Waldo Pepper, it is precisely the Big Bosses we’re talking about here.
Though not Cabinet positions, the federal courts have been short for rather a long time. And the effects of a lack of confirmed nominees can be seen in the morass the courts have become.
As of December 2016* there were 105 vacancies but only 59 pending nominations. While some of those may have been relatively recent vacancies it seems unlikely that 46 vacancies occurred out of a total of 890 federal judgeships** in just a month. So whether by indifference or exasperation at the unlikelihood of getting nominees confirmed, Obama had simply not put forward nominees for many of those positions.
As a result of the vacancies the docket builds up and the courts slow down. The Federal Bar Association’s position is that “(t)he rising number of judicial vacancies prevents the prompt and timely administration of justice in the federal courts–where FBA members practice. This is causing unnecessary hardship and increased costs on individuals and businesses with lawsuits pending in the federal courts.”
And the Brennan Center for Justice published a study in 2014 based upon interviews with court personnel that concluded, “These judges reported that vacancies slowed the court’s ability to resolve motions and try cases, which drove up litigation costs, caused evidence to go stale, made it harder to settle civil cases, and in some instances, pressured clients to plead guilty.”
bolding emphasis is mine.
Regardless of the reason for the vacancy, not all parts of the government fair well with vacancies in their Senate confirmed posts. And in the case of the courts there may be persons pressured into pleading guilty to criminal acts due to the overly slow pace of the courts caused, in part, by judicial vacancies.
** 890 judgeships includes all Supreme Court, Federal Appeals Court, Federal Circuit Court, territorial judges, etc… that require Senate confirmation.
In your company, if all of the C-level executives except the CEO, all the executive Vice Presidents, all the vice presidents, and all the top managers left on one day, and all those positions were immediately filled with mid-level managers, you’re saying that your business could run just as well with no loss in productivity for years?
Note that nobody is saying that your business would immediately declare bankruptcy. We are saying that OF COURSE there would be problems.
If you do think your company would not have any lasting impact of such a move, then I suggest you have an efficiency program you may wish to propose to your board of directors.
I figured the President was the Big Boss in this analogy.
Well, to play the partisan, I guess I’m saying that I don’t think there’d be any loss at the Department of Education if Betsy DeVos had never gotten the go-ahead; and I guess I’m saying much the same thing about Ben Carson; and I’m guessing I’d say the same about Rick Perry; and so on. Just that one position, there.
Sure there would be in impact at those agencies. For example, Ed makes decisions on how to treat for-profit colleges in terms of eligibility for Federal student loans. The last secretary made some moves to threaten the really crappy for-profit colleges with withholding Federal aid unless they met some basic requirements in terms of the quality of education they provide. You think the President determines such policies? Ha!
DeVos might reverse those threats of course, but with only temporary political appointees in place, such big decisions would probably remain in limbo until a real secretary can be confirmed.
It’s called “being a caretaker”. Non-political, public servants can keep the department running, but they don’t have the authority to make a major policy decision. Those types of decisions just stack up until there’s a new Secretary with the political authority to make those types of decisions.
I’m not so worried about cabinet posts but the President nominates over 1200 people that have to be confirmed by the Senate. Trump has nominated 34, and none in nearly 3 weeks.
I think the decisions usually flow the other way. The President sets a policy like “We want NATO countries to increase their defense spending” and then he tells the Secretary of State to handle the details of making the policy happen.
Without a cabinet, the President will be making decisions and setting policy but they’re won’t be anyone to translate those decisions and policies into action.