Can a President act as the head of an executive department?

Politics & Elections
1

Apologies if this has been floated elsewhere - I can barely keep up with the main election thread, let alone all of the other ones.

With all the talk of McConnell obstructing even yea unto cabinet appointments, I’ve been thinking about this.

The constitution requires that the appointment of officers of the United States have the consent of the Senate, but the organization of the cabinet itself is purely traditional and not constitutionally mandated.

A judge recently ruled that Chad Wolf’s appointment as acting DHS secretary was unlawful, which may invalidate the orders he gave in that role. But what if he’d never been made “acting head” of the department? What if he’d been given a rubber “so says the prez” stamp and used that authority instead of his own?

Putting aside the constitutionality of the orders themselves, can a President avoid the need to confirm cabinet secretaries by simply claiming that he is the one making those decisions?

2

No. The president can’t act directly as a cabinet member. Cabinet members must be appointed by the president and confirmed by the Senate. Under various statutes, certain cabinet members have authority to do things for the U.S. that are not given to the president directly. The president’s power comes from having the ability to choose the cabinet members, the moral suasion to guide the decisions they make, and the power to fire them if they do not do as the president wishes.

Some people endorse a “unitary executive” theory under which the president can do all these things himself under his inherent executive authority. Most people think it’s ahistorical bullshit but we have a right-leaning Supreme Court with at least a couple of apparent adherents to the theory, so maybe what you suggest will be true someday soon. However, it will have to wait until at least the next Republican administration before they go whole hog into making our president a king.

3

I do support the unitary executive theory, but there are limits.

There are things Cabinet/executive branch officials can do that the President could also do under his own authority, such as issuing direct military orders or (in my personal opinion) arresting people for federal crimes.

There are also things Cabinet/executive branch officials can do that the President can’t do. These are actions that draw authority from Congress’s regulatory powers, not the President’s authority to execute the laws. As an example, Congress has delegated to the Federal Power Commission the power to issue rules and regulations affecting or pertaining to the justness and reasonableness of natural gas rates and charges. 15 U.S.C. § 717c(a); upheld in Federal Power Com’n v. Hope Natural Gas Co. , 320 U.S. 592 (1944). In my opinion, the President has no authority to issue those rules and regulations himself; the Federal Power Commission, at least when performing those duties, draw their authority by name from statute and not the President.

So too with the Federal Trade Commission, the Federal Communications Commission, the Food and Drug Administration, etc. You will see that executive “orders” directed at these agencies are often mere suggestions.

~Max

4

The DACA program is particularly unfortunate because it is not based on any law enacted by Congress. The entire program comes down to the secretary of DHS’s discretion in prosecuting people under immigration law. It’s hard to find a more clear-cut example of something the President can do under his own “executive” power than directing his subordinates to spend the extra resources and prosecute everybody. The only thing keeping DACA alive is the administration’s failure to follow proper process in unraveling their own policies.

~Max

5

Let’s look at the Consitution.

Article II, Section 1:

The executive Power shall be vested in a President of the United States of America.

That’s literally it. No qualifiers or exceptions or elaboration. That’s a pretty strong argument in favor of a unitary executive.

But then, look at Section 2:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may 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…and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint 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: 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.

So at least the President’s appointment powers seem to be potentially circumscribed by legislation, and the existence of the Executive branch offices themselves are established by legislation. By extension, Congress also probably has the authority to establish who can fill those offices and what Executive powers can be delegated to those offices, but those Executive powers are still the President’s powers.

Personally, I’m with @Max_S on this, more or less. I don’t think the President can exercise powers delegated by Congress to regulatory bodies, even if those bodies are nominally in the Executive Branch and their members are chosen by the President. Those are Congressional powers, and the Congress has full and absolute power to delegate them to whomever they wish, and whomever they wish ain’t the President.

On the other hand, other Executive Branch agencies are exercising Executive powers on behalf of the President, and, see Section 1, all Executive power is vested in him. I don’t think Congress can require the President to delegate any Executive powers.

So (in my opinion), the President can’t act as his own Chairman of the Federal Trade Commission. The work of the FTC has to be carried out by actual Commissioners. But the President can act as his own Secretary of Defense. But then he actually has to physically do the job. He can’t give NotSecDef Jane Jones a “The Prez Sez” rubber stamp, and have her do the work. The President would have to actually be the one issuing the orders and signing the paperwork.

6

I may be able to reply to this after someone scrapes me off the ceiling.

7

I’ll have to disagree with you there. Quoting myself from a previous thread where I wrote about the unitary executive theory,

~Max

8

But could he BE his own Chairman of the Federal Trade Commission? Suppose the President appoints himself to one of the Cabinet posts, and the Senate confirms this. Any problems there?

9

I’ll have to disagree right back. If the President can delegate any authority he wants, to whomever he wants, it makes a nullity of the Senate’s Constitutional power to advise and consent. If the President can just hand a rubber stamp to Jane Jones and have her exercise all of the functions of Secretary of Defense, including making independent decisions, issuing orders, signing warrants, and so on, then she is in fact the Secretary of Defense. What is the Senate even advising and consenting on if appointments are that meaningless?

10

Appointing himself would probably violate the domestic emolument clause:

U.S. Const. art. II § 1 cl. 7
“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

~Max

11

That would depend on the exact wording of the legislation establishing the FTC. In general, though, I don’t think there’s any bar on one person simultaneously and independently holding two offices in the Executive Branch. He could only be paid as President, though - the Constitution very clearly establishes that the President can’t receive any pay or emoluments beyond his Presidential salary.

Again, I don’t think there’s any actual legal bar, beyond the fact that he couldn’t receive a second salary.

12

The organic statute defines the office of Secretary of Defense as “the principal assistant to the President in all matters relating to the Department of Defense”. 10 U.S. Code § 113(b), emphesis mine.

I did not and do not argue that a political appointee may exercise significant executive authority without being properly appointed (either with consent of the Senate, or in the case of an “inferior” officer, by someone who has explicit statutory authority to make that particular appointment). “[A]ny appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.”, Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam).

Say John Kelly is the President’s chief of staff. He is an “inferior officer” for the purposes of Article II § 2 cl. 2 and was thus hired pursuant to the President’s statutory authority to staff the White House Office. 3 U.S.C. § 105.

Mr. Kelly hires a deputy chief of staff for policy, Chris Liddell. Mr. Liddell is an “inferior officer” just like Mr. Kelly, but the statute providing for White House Office employees vests the authority to hire in the President personally. I think it’s safe to say Mr. President delegated the authority to hire a deputy chief of staff to Mr. Kelly.

Now, Mr. Kelly and Mr. Liddell can (did) make lots of important decisions. One of them probably told an active general or admiral what to do, at least once, in the President’s name and authority. Like, Mr. President wants this report or Mr. President will not see you. Neither appointment was consented to by the Senate.

But that’s very different from exercising the functions of the Secretary of Defense. True, the Secretary of Defense can tell generals what to do. But a White House employee who tries to issue a direct military order could (should) be asked for direct authorization from someone actually in the chain of command. That’s not to say the President wouldn’t tell his chief of staff to ‘sign for me’…

Remember when President Obama told his secretary to activate the “autopen” device to sign a bill extending the Patriot Act? Or to use that device to sign a tax bill into law? If the President isn’t delegating decisionmaking, even a political appointee can and has affixed the President’s signature to a bill.

~Max

13

Congress has the power to regulate the military under Art. I § 8 cl. 14, provided that the President is the Commander in Chief. The chain of command is enshrined in the Goldwater-Nichols Act, codified under 10 U.S.C. § 162(b). Under current law the President retains the power to adjust the military chain of command, if he so desires.

10 U.S.C. § 162(b)

"(b) Chain of Command.—Unless otherwise directed by the President, the chain of command to a unified or specified combatant command runs—

(1) from the President to the Secretary of Defense; and
(2) from the Secretary of Defense to the commander of the combatant command."

~Max

14

I’m now completely confused. I genuinely can’t tell if you’re agreeing with me or disagreeing.

I think you’re saying that NotSecDef can physically sign orders as long as they are doing so on express and direct instructions from the President. Which…ok. That still doesn’t seem quite right to me, but the President would still have to be the one issuing the orders. I don’t think he can just hand a rubber stamp to NotSecDef and tell them to do whatever they want.

The President clearly has some inherent power to delegate. But, going back to the OP, I think it’s pretty clear that the President can’t just give someone “a rubber ‘so says the prez’ stamp and…avoid the need to confirm cabinet secretaries by simply claiming that he is the one making those decisions.” If he can, then the “advice and consent” clause becomes a nullity.

15

Right.

I can’t get into details right this second, but the standard for determining if an appointee needs confirmation or not can be found in Edmond v. United States. Basically, the court decides based on a variety of factors.

~Max

16

I hope DJT isn’t reading this. Are you saying he can arrest Joe Biden?

17

Has Joe Biden committed some sort of federal crime? Did the President obtain a warrant? Alternatively, is the President confident that he can convince a court (and the Senate) that a warrantless arrest would be appropriate?

If the answer to any of these is no, and the President goes ahead and arrests Joe Biden anyways, I would want the President impeached immediately.

~Max