If a Democrat wins in 2020, but the senate remains Republican

Suppose that happens. There is an op-ed piece in the Times today that argues that the appointment of Whittaker as acting AG is utterly unconstitutional on the grounds that a principle officer must be approved by the senate. A principle officer being defined as one who reports directly to the president. Assume this is correct and the senate simply refuses to confirm any of the new president’s nominees. So no Secretary of State, not Attorney General, no Secretary of Defense and, obviously no judicial appointments. What happens next?

Incidentally, one analysis I read concluded that it is virtually impossible for the Dems to win the senate in 2020.

An even more complete breakdown of the US government? What you’re describing is a situation in which the government just straight-up cannot function in any meaningful sense. And sure, we’re basically already there in many parts of the government because the people running them are fundamentally incapable buffoons hired either out of nepotism or explicitly because they wanted to take a hatchet to the whole thing (and if this isn’t freaking you out, you aren’t paying attention), but this would be a whole new level of dysfunction. I’m not sure how you even pretend that the American governmental system works at that point, but there’s a huge jump from “The system is fundamentally broken and everyone can obviously see that” to “Here’s how we’re going to fix it”. :frowning:

Side issue, but that sounds like pretty crap analysis. The likeliest outcome at the moment is that Sinema pulls it out but Nelson does not, for a 53-47 Senate; 54-46 or 52-48 are also possible. Democrats probably lose Doug Jones’s seat in AL in 2020, but that’s the only one really likely to be at risk, while there are potentially flippable Republican-held seats in AZ, CO, IA, NC, and ME. So even if we end up at 54-46 after this election, a net gain of 4 is totally possible, and a 50-50 tie with a Democratic VP is a Democratic majority. (I think people forget about the VP part!)

And in order to fix that, we’d have to make fundamental changes to how the government is done. Change the rules behind democracy itself in some way intended to fix it, go to plurality voting or explicitly ban all campaign contributions from anyone for any reason or make lying a crime or something.

Oh, but in order to fix the USA, you need 3/4 the states and 2/3 of both houses of Congress to agree. You know, the same people who currently disagree.

And every one of my proposed fixes would probably preference one party over another in some way. (I’m not even seriously proposing them, just naming various things that might work or might fail horribly). So they would never get voted in.

That takes assuming that federal law covering vacancies changes. The Federal Vacancies Reform Act of 1998 courtesy of wikipedia.

Whitaker pretty clearly fits that last so the point of the op-ed seems to ignore the law; have a link? Those appointments as acting officials are limited to 150 days but there’s an exception. If a first or second nomination of a permanent fill is pending before the Senate the acting official can continue to serve. Piecing together a cabinet of acting officials, 5 months at a time, seems entirely possible even with people at that level.

Then there’s the whole issue of recess appointments.

If I am reading your phasing right, let’s say the Democratic President in 2020 nominates an acting cabinet.

The nominations are before the Senate. The Senate refuses to do anything.

Then the nominations just stay in power?

No 5 month limit.

Where does the 5 months come in?

They can only stay in power for 5 months (150 days), but meanwhile someone else is named, which covers the 5 next months, and so on.

Newb question, but if they retake the senate is Mitch senate leader again or would there have to be / likely a turnover?

Speaking purely politically, republicans would either need a crisis of conscience or a crisis of “fell down the stupid tree and hit every branch” to replace McConnell. There hasn’t been a more ruthlessly effective politician in a long time. The man is an absolute genius, even if his actions almost certainly are helping destroy the ability of the government as a whole to govern - which, coincidentally, republicans seem quite interested in.

No serious person doubts that Whitaker within the scope of the third category of the FVRA (and that he was appointed under this provision). The argument is that the FVRA is unconstitutional as applied to principal officers. Put simply, they argue that the Constitution does not allow for the appointment of principal officers without confirmation (unlike inferior officers). And that “acting” principal officers are, in fact, principal officers. As Justice Thomas put it, “When the President “direct[s]” someone to serve as an officer pursuant to the FVRA, he is “appoint[ing]” that person as an “officer of the United States” within the meaning of the Appointments Clause.” NLRB v. SW General, Inc. (Thomas, J., concurring). Until this week, this was an argument made only by Justice Thomas, but it seems to have found new favor.

Assuming Thomas is right, it’s clear that the entire third category of the FVRA cannot apply to principal officers. I would argue that if he is right, then there can be no “acting” principal officer ever. The Senate confirms an individual to a particular post (for example, Leon Pannetta was nominated and confirmed to CIA and nominated and once again confirmed at Defense). If we don’t think Panetta could simply have been appointed secretary of defense (without submission to the Senate), then he can’t be appointed acting secretary, even having been confirmed elsewhere. This makes the second FVRA category suspect… and, I think, the first category.

Which, to me, is the flaw in the argument: sometimes you need acting officers. Set aside the political hypothetical, and just imagine that an officer dies or resigns: no one can exercise those powers until the Senate confirms him. Or, for example, at the beginning of the Trump Administration, a number of departments were temporarily run by senior career employees in an acting capacity, because the Obama Administration officials left office and the new appointees hadn’t been confirmed. Under this theory, this is obviously unconstitutional. But it’s also obviously essential to a transition between administrations.

The President could

  1. In conjunction with the House Force a recess under Article II Section 3, clause 3 of the constitution. The House calls for Congressional recess, the Senate disagrees, the matter goes to the President, and he dismisses both of them for a few weeks and makes his recess appointments.

  2. Force the Senate to convene under Article II, Section 3, clause 2, with the the recxomendation under clause 1 to confirm the cabinet.

These would no doubt lead to litigation. But extraordinary times call for extraordinary measures.